Cause No. IP97-1268-C-T/G
March 30, 2001
Ralph E. Dowling Wilson Kehoe Winingham Lane Muncie, IN. attorney for plaintiff.
Jona Goldschmidt Attorney at Law Chicago, IL. attorney for plaintiff.
Roger P. Ralph Ricos Price Indianapolis, IN. attorney for defendant.
Scott E. Shockley Defur Voran Hanley Radcliff Reed Muncie, IN. attorney for defendant.
Though this entry is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
On August 4, 1997, the Plaintiffs, Gary L. Webb, Susan L. Sayles and Melissa L. Wisner, commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1983. The Complaint alleged that Plaintiffs were subjected to sexual discrimination, harassment and retaliation, as well as violations of their Fourteenth Amendment and First Amendment rights. The Complaint also alleged that Defendants conspired to deny Plaintiffs' civil rights. Plaintiffs sought a preliminary injunction which was denied by the court and affirmed on appeal. On January 5, 2000, the court granted Defendants' motion for summary judgment in favor of all Defendants and against all Plaintiffs on all claims. The Seventh Circuit affirmed the grant of summary judgment in all respects. Thus, Defendants are prevailing parties in this litigation.
On January 31, 2000, Defendants filed their Petition For Attorneys' Fees And Motion For Sanctions, and on June 23, 2000, they filed their Verified And Amended Petition for Attorneys' Fees And Motion For Sanctions. Defendants seek an award of $103,629.33 in attorneys' fees or sanctions or some combination thereof against Plaintiffs Gary Webb and Melissa Wisner and their counsel, pursuant to 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 1988, and 28 U.S.C. § 1927.
Defendants originally sought attorney's fees against Plaintiff Susan Sayles, but have withdrawn their fee petition as against her and have reduced their original fee petition request of $155,444.00 by one-third, which they generously attribute to the defense of Plaintiff Sayles' claims. Because there was substantial overlap in the defense of the claims of the other Plaintiffs, however, less than one-third of the time expended was dedicated solely to Sayles' claims. Nevertheless, Defendants believed that the fairest approach was to reduce their fee petition by one-third.
Originally Defendants sought sanctions against counsel under Rule 11(c) of the Federal Rules of Civil Procedure, but they have withdrawn that request.
I. Discussion A. Legal StandardsIn Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the Supreme Court held that under 42 U.S.C. § 2000e-5(k) "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421; see also Monroe v. Children's Home Ass'n, 128 F.3d 591, 594 (7th Cir. 1997) (defendants in Title VII action can recover attorney's fees if plaintiff's claim is frivolous). If a district court finds that a plaintiff brought or continued to litigate a Title VII claim in bad faith, "there will be an even stronger basis for charging him with the attorney's fees incurred by the defense." Id. at 422. A decision to award attorney's fees under Section 2000e-5(k) is reviewed for an abuse of discretion. See Connolly v. Nat'l Sch. Bus Serv., Inc., 177 F.3d 593, 596-97.
In Hughes v. Rowe, 449 U.S. 5 (1980), the Supreme Court adopted the Christianburg standard for imposition of attorney's fees under 42 U.S.C. § 1988, which allows the court in its discretion to award reasonable attorney's fees to the prevailing party. Id. at 14-15. Prevailing plaintiffs are awarded attorney's fees as a matter of course, but prevailing defendants are to be awarded attorney's fees only if the plaintiff's claim was "frivolous, unreasonable, or groundless." Id. (quoting Christiansburg, 434 U.S. at 422); see also Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999). A showing of bad faith is not a prerequisite to an award of attorney's fees under § 1988. Munson v. Milwaukee Bd. of Sch. Dirs., 969 F.2d 266, 269 (7th Cir. 1992). Rather, "the defendant must demonstrate that the plaintiff's action is `meritless in the sense that it is groundless or without foundation.'" Id. (quoting Hughes, 449 U.S. at 14). "[W]hen a civil rights suit is lacking in any legal or factual basis . . ., an award of fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that the ability of the courts to remedy civil rights violations is not restricted by dockets crowded with baseless litigation." Id. (quotation omitted). The court may consider a plaintiff's ability to pay when deciding whether to award attorneys fees under § 1988. Munson v. Friske, 754 F.2d 683, 697 (7th Cir. 1985). Like a fee award under § 2000e-5(k), an award of fees under § 1988 to a prevailing defendant is reviewed for an abuse of discretion and, therefore, is upheld unless "no reasonable person could take the view adopted by the trial court." Id. (quotation omitted).
Section 1988 provides in relevant part: "(b) In any action or proceeding to enforce . . . [ 42 U.S.C. § 1983] . . . the court, in its discretion, may allow the prevailing party . . ., a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988.
28 U.S.C. § 1927 authorizes the imposition of attorney's fees, costs and expenses against counsel who "multiplies the proceedings in any case unreasonably and vexatiously." Fin. Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 533 (7th Cir. 1998); see Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir. 1992). Counsel acts unreasonably "by engaging in a serious and studied disregard for the orderly process of justice," Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir. 1988) (quotation omitted), or where a "claim [is] without a plausible legal or factual basis and lacking in justification." Id. (quotation omitted) (emphasis in Walter). "In determining whether an attorney's actions were objectively unreasonable a court may infer intent from a total lack of factual or legal basis for a suit." Id. "`Vexatious' conduct involves either subjective or objective bad faith." Pac. Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 120 (7th Cir. 1994) (citing Kotsilieris, 966 F.2d at 1184). Extremely negligent conduct, like reckless and indifferent conduct satisfies the bad faith requirement. Id. (citing Kotsilieris, 966 F.2d at 1185). Pursing a path "that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound" is objectively unreasonable and vexatious. Walter, 840 F.2d at 433-44. A district court may consider counsel's ability to pay when imposing § 1927 sanctions, but is not required to do so. See Fox Valley Const. Workers Fringe Ben. Funds v. Pride of Fox Masonry Expert Restorations, 140 F.3d 661, 667 (7th Cir. 1998). A decision to grant sanctions under § 1927 is reviewed for an abuse of discretion. Fin. Inv. Co., 165 F.3d at 530.
The statute provides that: "Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. Id.
The Walter court upheld a sanctions award for filing meritless claims against a defendant stating, "Where a party files a baseless claim, which cannot be supported after four years of discovery and which previously has been identified as baseless as against three other defendants, sanctions are indeed appropriate." Id. at 436.
The Complaint names the Board of Trustees of Ball State University and 49 individuals as Defendants individually and in their official capacities as employees or agents of Ball State University. Members of the Board were Frank A. Bracken, Mary Lou Conrad, Chad A. Davis, Jeffrey H. Smulyan, Krishna A. Thomas, Thomas L. DeWeese, Hollis E. Hughes, Jr., Richard L. Moake, James W. Parks, Gregory A. Schenkel and Pennie M. Thomas. John Worthen was President of Ball State University, Warren Vander Hill was Provost and Vice-President for Academic Affairs, Ronald Johnstone was Dean of the College of Sciences and Humanities (the "College"), Donald Van Meter and William Eidson were Associate Deans of the College, and Jon Moll was legal counsel to the Board and its agents. Wynola Richards was the Director of Affirmative Action and Assistant Provost until July 1, 1995. Chris Airriess was a faculty member and chair of the Academic Freedom and Ethics Committee ("AFE Committee"). Tom Lowe, Ramon A. Avila, Carla Earhart, Robert Hayes, Ann Henderson, Kyama Kabadaki, Tim Lyon, Donald Merten, Leslie Milner, Jerome Ulman, Arthur Wilson, and Judy Yardon were faculty members or employees of the University and members of the AFE Committee.
Sali Falling was the BSU Director of Affirmative Action beginning with the 1995-96 academic year. Paul Parkison was a member of the faculty and chair of the ad hoc committee appointed by President Worthen to address Plaintiff Webb's complaints. Other members of the ad hoc committee were Kay E. Hodson, Sue H. Whitaker, and R. Thomas Wright. James Hendricks was a faculty member and chair of the Department of Criminal Justice and Criminology (the "Department"). Jean Comley, Bryan Byers, Taiping Ho, and Michael F. Brown were faculty members of the Department. Norman Beck was the BSU Executive Director of Human Resources, Beverly Pitts was the Associate Provost, Joseph Wehner was the Director or Public Safety, and William McCune was the BSU controller. Alice Bennett was a faculty member and chair of the College's Promotion and Tenure Appeals Committee, Robert South was a faculty member and chair of the University Promotion and Tenure Committee. Terrance Aldridge was a BSU student and reporter for the BSU Daily News. Mike McCAuley was the BSU Director of Academic Systems.
Count I alleges Plaintiff Webb's cause of action for sexual harassment under Title VII against the Board. Count II alleges Webb's cause of action for retaliation under Title VII against the Board. Count III alleges Webb's Section 1983 claim premised upon violations of the Fourteenth and First Amendments against the Board and all individual Defendants with the exception of Defendant South. Count IV alleges a conspiracy to deny Webb's civil rights in violation of Section 1983 against all Defendants, again with the exception of Defendant South.
Count IX alleges Plaintiff Wisner's cause of action for sexual discrimination under Title VII against the Board. Count X alleges Wisner's cause of action for retaliation under Title VII against the Board. Count XI alleges her cause of action for denial of civil rights under Section 1983 against the Defendant Board and Defendants Bracken, Conrad, Davis, Smulyan, Thomas, DeWeese, Hughes, Moake, Parks, Schenkel, Thomas, Worthen, Vander Hill, Johnstone, Moll, Falling, Hendricks, Comley, Byers, Ho, Brown, Beck, Wehner, and McCauley. Count XII alleges a conspiracy to violate Wisner's civil rights against these same Defendants.
In general response to Defendants' petition for attorneys' fees, Plaintiffs argue that before filing the Complaint in this case, Plaintiffs' counsel heard Plaintiffs' recitation of the facts relating to their claims and was provided with voluminous records upon which to base their claims, all of which established that "allegations of bad faith were reasonably made and that the complaint was not groundless in law or fact." (Pls.' Resp. Defs.' Pet. Fees at 8.) But improper motive, if an element of Plaintiffs' claims, is only one element. A pre-filing inquiry which causes counsel to conclude that Plaintiffs have evidentiary support for only a single element of a claim or claims is not enough to warrant assertion of those claims in a legal action. A reasonable inquiry requires counsel to consider all elements of all claims and then determine that there likely is evidentiary support for all elements. Interestingly, though, Plaintiffs do not argue that counsel concluded that allegations respecting other elements of the claims asserted were reasonably made and grounded in fact. Furthermore, the representation that counsel based the allegations of the Complaint upon Plaintiffs' recitation of "facts" and voluminous records provided by them fails to reflect that counsel engaged in an adequate prefiling investigation into the applicable law.
Plaintiffs claim that they did not have the benefit of discovery and argue that Defendants would have resisted any efforts to be subjected to discovery since they asserted a qualified immunity defense. The latter is speculative. As to the former, though Plaintiffs may not have engaged in formal discovery recognized by the Federal Rules of Civil Procedure, they did have the benefit of discovery through the preliminary injunction hearing, and Plaintiffs' were allowed to supplement their responses to Defendants' dispositive motions following the conclusion of that hearing. Plaintiffs assert they assumed they were unable to take discovery before the May 4, 1998, decision in Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (dicta suggesting that courts in their discretion may permit discovery against official asserting qualified immunity defense), and by that time the district court had ordered a stay of the proceedings. Plaintiffs fail to acknowledge that the stay was entered upon Plaintiffs' motion seeking a stay of the proceedings pending disposition of their appeal of the court's ruling on their motion for preliminary injunction. In addition, the court stayed all proceedings except for pleadings seeking a dissolution of the stay. (Entry Granting Pls.' Mot. Stay Proceedings, 2/11/98 at 1.) Plaintiffs did not seek any relief from the stay during the pendency of their appeal; rather, they waited until the court of appeals affirmed this court's ruling and then waited over six months after that before moving to lift the stay.
Plaintiff Webb, along with Susan Sayles, filed their first suit against Ball State in 1997. Ball State removed the case to federal court where it was assigned Cause No. IP 97-0221-C-M/S. Plaintiffs moved to remand, Judge McKinney concluded that he likely had subject matter jurisdiction because the case raised a federal question, and Plaintiffs dismissed the case. Approximately six months later, Plaintiffs filed this action. Defendants argue that given Mr. Dowling's comments at the remand hearing to Judge McKinney that "I have no interest in being in this Court. I don't want to be in this Court. I didn't ask for this Court because I want the state law to give me a remedy in this case" (Defs.' App. Evid. Mats., Ex. B, Tr. at 25), the filing of this action later that same year arguably might have been a vexatious multiplication of proceedings. Defendants, however, cite no authority to support their argument. The court declines to sanction Plaintiffs for bringing a subsequent action after expressing a preference for a state forum for similar if not identical claims and issues.
1. Title VII Claims
Defendants contend the Title VII claims were inconsistent with the EEOC charges upon which they were based or lacking in any evidentiary support. Long before the Complaint was filed it was well-settled that a plaintiff could not bring Title VII claims not included in his or her EEOC Charge. See Cheek v. W. S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992); Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985). Count I, "Plaintiff Webb's Cause of Action for Sexual Harassment," asserted that Webb was subjected to sexual harassment. The sex discrimination box is checked on Webb's first EEOC charge, but the body of the charge contains no allegations pertaining to a sex discrimination or harassment claim. The Seventh Circuit has not addressed whether merely checking the box on the charge form without making particular allegations in the body of the charge suffices to include a claim within the scope of the EEOC charge. The court concluded that checking the box for "sex" discrimination alone does not suffice to bring a sexual harassment claim within the scope of the EEOC charge. However, given the absence of controlling precedent, the court finds that Webb's assertion of a sexual harassment claim is not sanctionable. Defendants also urge that Webb's sexual harassment claim ignored clear precedent that such a claim cannot be based upon an allegation arising from the ending of a consensual relationship, citing Huebschen v. Dep't of Health Soc. Servs., 716 F.2d 1167 (7th Cir. 1983). That decision, however was decided under the Equal Protection clause and therefore was not clearly binding precedent as the Defendants urge. The court does not find that the bringing of Webb's sexual harassment claim warrants sanctions.
Wisner's sex discrimination claim under Title VII is well beyond the scope of her EEOC charges, however. Plaintiffs argue that EEOC intake officers rather than they drafted the EEOC charges, implying that this should entitle them to an exception to the rule regarding the scope of an EEOC charge. No authority is offered to support this argument, which is nothing other than an attempt to shift the blame to the EEOC and will not be condoned. Given that Webb is highly educated with a Ph.D. and accumulated several credits in law school and Wisner has a college degree, as well as the fact that all Plaintiffs assisted each other in preparing their EEOC charges, the argument is frivolous and patently unreasonable given the Plaintiffs' high levels of education and coordinated efforts in preparing their EEOC charges. Therefore, Wisner's sex discrimination claim ignores the well-settled scope of the charge doctrine. It therefore is sanctionable under § 2000e-5(k).
Wisner's sex discrimination claim against the Board is subject to sanctions for another fundamental reason. The Complaint alleges that various Defendants took certain actions against her and the Board "had knowledge of the facts alleged and acquiesced in the conduct of its employees and agents as described above." (Id. ¶ 52.) "A complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." Palda v. Gen. Dynamics Corp., 47 F.3d 872, 875 (7th Cir. 1995); see Cushing v. City of Chicago, 3 F.3d 1156, 1167 (7th Cir. 1993). This allegation against the Board is vague, conclusory and unsupported by factual assertions. Wisner therefore fails to state a Title VII sex discrimination claim in the Complaint against the Board and, moreover, the bringing of this frivolous claim is sanctionable under § 2000e-5(k).
With respect to Webb's Title VII retaliation claim, Defendants argue that Webb ignored clear Seventh Circuit precedent that defined an adverse action "as something substantially more than anything he claimed." (Mem. Supp. Defs.' Pet. at 18.) Webb argued, however, that even if each alleged act on its own did not constitute an adverse action, all of the acts "taken as a whole" constituted an adverse action against him. The court concluded that even when taken as a whole, the acts about which Webb complained were not materially adverse actions. Nevertheless, his argument reasonably could be considered a nonfrivolous argument for the extension or a modification of the law.
Defendants argue that Webb's retaliation claim is sanctionable because it was clear he could not establish the necessary causal link between protected activity and the allegedly adverse employment actions. The claimed protected activity was the filing of an EEOC charge on September 21, 1995. (Compl., Ex. 2 at 1-2.) Webb's only "evidence" and argument for the causal link was the time period between the filing of the charge and the alleged retaliatory acts. (Pls.' Resp. Defs.' Mots. Dismiss Summ. J. at 39.) The earliest alleged adverse action occurred in December 1996; the others occurred even more remote in time. The passage of time between this earliest action-coming more than 14 months after the protected activity-was far greater than periods of time which the Seventh Circuit has held insufficient evidence of a causal link. See, e.g., Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4 months insufficient); Juarez v. Ameritech Mobile Comm., Inc., 957 F.2d 317, 321 (7th Cir. 1992) (6 months insufficient). Plaintiffs did not provide any arguments as to why a much lengthier time period should be able to raise an inference of a causal link, rather than serve as counter-evidence of causation. Had they and counsel done their homework before filing suit, they would have known that the remoteness of the alleged adverse acts to the protected activity alone could not support the causation element of a retaliation claim. Further, once this was brought to their attention through Defendants' dispositive motions, Plaintiffs should have conceded the lack of a plausible legal basis for Webb's retaliation claim and dismissed it. They did not do so, forcing the court to address the claim in its entry and thus justifying imposition of sanctions under § 2000e-5(k).
As for Wisner's retaliation claim, the court concluded that a retaliation claim stemming from her transfer was within the scope of her third EEOC charge and that her transfer was arguably an adverse action. The court ultimately concluded that Plaintiffs failed to come forward with sufficient evidence that she suffered a materially adverse employment action because they failed to prove that her transfer was something other than a lateral transfer and that she had the same level of material responsibility. But Plaintiffs offered evidence that in her new position Wisner lacked a supervisory position over students which she had in her administrative position in the Department. Thus, it cannot be said that Wisner's retaliation claim based on her transfer was frivolous, unreasonable or without foundation even though Defendants were entitled to summary judgment on that claim.
2. Section 1983 Claims
Defendants contend Plaintiffs should be sanctioned for naming 49 Defendants in their individual capacity without alleging or offering any facts to support individual capacity claims. Defendants also contend that most of the Defendants, though they do not specifically identify them by name, never took any action against Plaintiffs but rather served on committees or boards that did not do what Plaintiffs wanted. Suit against public officials in their individual capacities "can be abusive, in some cases, and, where appropriate, [can] subject plaintiffs and their counsel to sanctions . . . especially where such defendants are forced to hire separate counsel in their individual capacity or are subjected, as individuals, to vexatious litigation." Scott v. Flowers, 910 F.2d 201, 213 n. 25 (5th Cir. 1990); see also Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998) (warning that "this court does not look with favor on the promiscuous joinder of minor employees as defendants in cases against their employers."); Anderson v. County of Montgomery, 111 F.3d 494, 502 (7th Cir. 1997) (affirming sanctions for dragging a number of defendants into suit without legal or factual merit), overruled on other grounds by DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000). But none of the defendants sued in their individual capacities, save Richards, hired separate counsel to defend against the individual capacity claims, which may weigh against finding that the claims against them in their individual capacities was abusive, see, Scott, 910 F.2d at 213 n. 25.
Defendants would have better assisted the court in considering their petition had they named those Defendants.
Defendants argue that the naming as Defendants the members of the AFE Committee (Defendants Airriess, Loew, Avila, Earhart, Hayes, Henderson, Kabadaki, Lyon, Merten, Milner, Ulman, Wilson and Yardon), the ad hoc committee (Defendants Parkison, Hodson, Whitaker and Wright), University Controller McCune, campus police chief Wehner, and University attorney Moll was purely to harass and intimidate the Ball State administration. The only actions the AFE Committee took against Webb was to investigate Cotlar's complaint against him, find in Cotlar's favor and recommend that Webb be reprimanded. The Provost, however overruled that recommendation and Webb was not reprimanded. Thus, Webb failed to allege or prove the denial of any property interest by the AFE Committee. As for the ad hoc committee, which President Worthen appointed to investigate the concerns raised in Webb's manifesto, that committee interviewed Webb and other witnesses and then issued a report containing three possible solutions, including Webb's removal as Department Chair. Webb did not lose his position as Chair as a result of the ad hoc committee's recommendations. Thus, Webb failed to allege or prove the denial of any property interest by the ad hoc committee. The court concludes that Webb's § 1983 claims against the AFE Committee and the ad hoc committee premised upon an alleged denial of a due process property right warrant sanctions under § 1988 because they are frivolous, unreasonable and lacking in any legal or factual basis.
Plaintiffs did move to dismiss Defendant McCune after the filing of Defendants' motion to dismiss and motion for summary judgment, as they should have. (Pls.' Suppl. Resp. Defs.' Mots. Dismiss Summ. J. Mem. Supp. at 14.) In light of this, the court declines to sanction them for bringing claims against McCune.
As for Defendant Wehner, Webb alleged that he received parking tickets from campus police officers "supervised by defendant WEHNER" "for parking in a parking lot . . . at which [he] had authorization to park." (Compl. ¶ 35(F).) He also alleged that Wisner contacted agents of Wehner, explained the facts and was told that the tickets were removed (id.), and that "Defendant WEHNER, with knowledge of these facts, intentionally and in bad faith refused to remedy the situation, causing plaintiff to be financially liable without just cause and without due process[.]" (Id.) Similarly, Wisner alleged that she received unjustified parking tickets from the BSU Department of Public Safety "under the supervision of defendant WEHNER" for parking in a lot for which she had a permit, which was "on information and belief, known to and acquiesced in, by defendant WEHNER." Compl. ¶ 49(G)(1).) These allegations, though Minimal, are sufficient to state a claim against Wehner in his individual capacity by claiming that the "conduct causing the [alleged] constitutional deprivation occur[ed] . . . with [his] knowledge and consent." McPhaul v. Bd. of Comm'rs, 226 F.3d 558, 566 (7th Cir. 2000), petition for cert. filed, No. 00-1144 (U.S. Jan. 16, 2001); see Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). It is true, however, that Plaintiffs never offered any evidence that the issuance of the parking tickets or refusal to remove them was done with Wehner's knowledge and consent. Nor did they offer any other evidence upon which Wehner otherwise could be held individually liable for the alleged constitutional deprivation related to the parking tickets, i.e., that Wehner acted or failed to act with a deliberate or reckless disregard of Plaintiffs' constitutional rights, or that the conduct causing the constitutional deprivation occurred at his direction, see, e.g., McPhaul, 226 F.3d at 566; Gentry, 65 F.3d at 561. Thus, the continued prosecution of the claims against Defendant Wehner justifies the imposition of sanctions under § 1988.
Webb alleged that Attorney Moll authored or reviewed for content the reports of the ad hoc committee and the AFE Committee. (Compl. ¶ 32, 34(C)(6).) These allegations are sufficient to allege Moll's personal responsibility for the alleged constitutional deprivation related to these reports. However, Plaintiffs failed to present any evidence that either report resulted in any action being taken against Webb. Again, the prosecution of these claims against Moll warrants the imposition of sanctions under § 1988.
Defendants argue that Plaintiffs failed to allege or prove any facts suggesting the Board Trustees acted in bad faith or with conscious disregard of established constitutional rights and moreover, that there was no allegation or evidence that any Trustee took any action at all against Plaintiffs. Thus, Defendants argue the individual capacity claims against the Trustees were an attempt to harass and intimidate them. However, the Complaint does contain allegations that, when read liberally in the light most favorable to Plaintiffs, state a claim against the Trustees individually. As for Webb, the Complaint alleges that the Board of Trustees "is . . . empowered to determine their [BSU employees'] compensation and conditions of employment," (Compl. ¶ 4); after Webb filed appeals of the AFE Committee's decision, the Board refused "to remedy the situation," (id. ¶ 33); that during the appeals process Webb received a pay raise "that was below average and the lowest of all BSU department chairs," (id. ¶ 34(A)); the Board failed to respond to Webb's appeals, with the exception of a letter referring his complaint to President Worthen, (id. ¶ 35); the Board refused to give Webb a copy of Defendant Ho's complaint against Webb, (id. ¶ 35(D)); and the Board "had knowledge of the facts surrounding plaintiff's refusal to restore said relationship [with Richards] and failed to remedy and prevent the injuries, losses, and deprivations suffered by the plaintiff as a result thereof." (Compl. ¶ 42.) When the Complaint's allegations are read in their entirety and construed generously in the light most favorable to Plaintiffs, with these allegations Webb has stated a claim that the "conduct causing the [alleged] constitutional deprivation[s] occur[ed] . . . with [the Trustees'] knowledge and consent." McPhaul, 226 F.3d at 566; see Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). The allegations also allege that the Trustees took actions (or failed to act) against Webb.
As for Wisner, however, the Complaint wholly fails to make any allegation against the individual Trustees which would support an individual capacity claim against them. There is no allegation that any conduct causing an alleged constitutional deprivation to Wisner occurred with a Trustee's knowledge and consent. Nor is there any allegation that any Trustee took any action or failed to take an action against her. Therefore, the bringing of the Section 1983 individual capacity claims against the Trustees individually by Wisner is subject to sanctions under § 1988.
Defendants argue that Plaintiffs' conspiracy claims are sanctionable because Plaintiffs failed to plead any facts to suggest an agreement among Defendants to violate Plaintiffs' rights and Plaintiffs never offered any evidence of such an agreement. "At a minimum, a complaint must contain facts sufficient to state a claim as a matter of law, and mere conclusory allegations of a conspiracy are insufficient to survive a motion to dismiss." Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citing House v. Belford, 956 F.2d 711, 721 (7th Cir. 1992)).
Webb brought his § 1983 conspiracy claim against all Defendants with the exception of South. Wisner alleged a § 1983 conspiracy against the Defendants Board, Bracken, Conrad, Davis, Smulyan, K. Thomas, DeWeese, Hughes, Moake, Parks, Schenkel, P. Thomas, Worthen, Vander Hill, Johnstone, Moll, Falling, Hendricks, Comley, Byers, Ho, Brown, Beck, Wehner, and McCauley. The Complaint lacks any factual allegation of a conspiracy or agreement between Defendants to violate Plaintiffs' rights. The Complaint then alleges in conclusory fashion that "defendants . . . committed the foregoing acts and omissions in concert and as part of a conspiracy to deprive Plaintiff WEBB of his rights . . . in violation of 42 U.S.C. § 1983" (Compl. ¶ 40) and "defendants . . . committed the foregoing acts and omissions in concert and as part of a conspiracy to deprive Plaintiff WISNER of her rights . . . in violation of 42 U.S.C. § 1983." (Id. ¶ 51.) Even when Plaintiffs are given the benefit of the doubt of their conclusory allegations, the Complaint nevertheless fails to make a specific allegation that the following Defendants entered into an agreement or conspiracy against Webb: the Board, Bracken, Conrad, Davis, Smulyan, K. Thomas, DeWeese, Hughes, Moake, Parks, Schenkel, P. Thomas, Van Meter, Eidson, Avila, Earhart, Hayes, Henderson, Kabadaki, Lyon, Merten, Milner, Ulman, Wilson, Yardon, Falling, Parkison, Hoson, Whitaker, Wright, Hendricks, Comley, Byers, Ho, Brown, Pitts, Wehner, McCune and Aldridge; or that the following Defendants entered into a conspiracy or agreement against Wisner: Board, Bracken, Conrad, Davis, Smulyan, K. Thomas, DeWeese, Hughes, Moake, Parks, Schenkel, P. Thomas, Moll, Falling, Wehner, and McCauley. Thus, the conspiracy claims against said Defendants by Webb and Wisner are sanctionable under § 1988.
For Webb's conspiracy claim, the Complaint alleges that Cotlar conspired with Bennett to file a false complaint against Webb with the AFE Committee (Compl. ¶ 30); that Moll conspired with Johnstone, Vander Hill, Richards, Airriess and Lowe to draft the AFE Committee decision against Webb (id. ¶ 32); that Vander Hill, Richards, Johnstone and Moll conspired to draft or modify the ad hoc committee's decision (id. ¶ 34(C); that Beck, Vander Hill conspired to disrupt the Department and make it difficult for Webb to perform his duties as chairperson (id. ¶ 35(E)); and that Johnstone and McCauley conspired to deny Webb computer access, (id. ¶ 35(G)). For Wisner's conspiracy claim, the Complaint alleges that Ho, Hendricks, Brown, Byers, Comley, Beck, Worthen, Vander Hill and Johnstone in concert had a series of interactions with Department personnel resulting in unjustified written criticisms of Wisner and other retaliatory acts (Compl. ¶ 49); and Beck conspired with Vander Hill to transfer Wisner to a new job, (id. ¶ 49(E)).
Furthermore, the only evidence offered to support the conspiracy claim in response to Defendants' dispositive motion was a paragraph in Webb's affidavit that: "The behavior of Jim Hendricks, Bryan Byers, Michael Brown, Jean Comley, and Taiping Ho during the fall semester of 1996, made it very clear that they had met with Provost Vander Hill or his subordinate, Dean Johnstone." (Webb Aff. 12/24/97 ¶ 30.) This statement is conclusory and fails to provide specific facts to establish an agreement or conspiracy among Defendants, let alone a conspiracy to violate Plaintiffs' rights. As the court observed previously, at best this statement would support a finding that certain Defendants met with Vander Hill or Johnstone; it does not address the purpose or outcome of any such meetings. (See Entry Regarding Pending Mots. at 23-24 n. 7.)
Plaintiffs respond that testimony was presented at the preliminary injunction hearing of meetings Johnstone and Vander Hill had with some of Webb's adversaries in the Department, citing Tr. Prelim. Inj. Hrg. at 211-17 (Vander Hill testified he met in February 1995 with Richards and Meagher regarding the Meagher matter; he met with Steve about Webb; he met with Byers about studying in Oxford; he met with Cotlar; he met with Michael Brown regarding his teaching, a teaching loan, some concerns he had over research and concerns he had about the department unrelated to Webb), 480-81 (Johnstone testified that he was contacted by Drs. Ho, Byers and Hendricks in the fall of 1996 regarding Webb and the mistreatment of Dr. Ho), such that the conspiracy allegations were not totally groundless. Plaintiffs further argue discovery was necessary to determine the exact nature of the meetings and their relationship to the events which followed them. Even if Vander Hill's testimony arguably supported a conspiracy claim against some Defendants, the only Defendants about which Vander Hill testified he met on any matter were Johnstone, Byers, Cotlar, Brown, Ho and Hendricks. Absolutely no evidence was presented to support a conspiracy claim against other Defendants; thus, such claims have no basis in fact.
This individual is not identified by last name or position.
Defendants next argue that many of them were sued under § 1983 despite that the facts pled alleged conduct clearly outside the limitations period. Bringing and pursuing claims that are clearly foreclosed by precedent such as a statute of limitations can be sanctionable conduct. See Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752-54 (7th Cir. 1988) (counsel pretended potentially dispositive authority did not exist; persisted in putting forth claims despite fact that statute of limitations clearly barred claims; and acted in bad faith in filing a fraud claim in hopes that future discovery would lead to sufficient facts to support such a claim); Hamilton v. Daley, 777 F.2d 1207, 1212-13 (7th Cir. 1985). It is well-established that in § 1983 civil rights actions the applicable limitations period is borrowed from state tort law, Wilson v. Garcia, 471 U.S. 261 (1984); Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997), which in Indiana is two years, see Venters, 123 F.3d at 967. The Complaint was filed on August 4, 1997. Plaintiffs sued the following individual Defendants, alleging only acts or omissions against them that occurred before August 4, 1995: Airriess, Lowe, Alvila, Earhart, Hayes, Henderson, Kabadaki, Lyon, Merten, Milner, Ulman, Wilson, Yardon, Van Meter, Eidson and McCune.
Plaintiffs respond that they were entitled to allege that the acts of Defendants were continuing violations. Courts have been reluctant to apply the continuing violation theory outside the Title VII context. See Tolbert v. Oh. Dep't of Transp., 172 F.3d 934 (6th Cir. 1999); McGregor v. La. State Univ. Bd. of Supervisors, 3 F.3d 850 (5th Cir. 1993). One Seventh Circuit case has applied the theory in the § 1983 context, see Palmer v. Bd. of Educ., 46 F.3d 682 (7th Cir. 1995), though in a drastically different factual situation. That case considered whether an allegedly racially discriminatory school closing plan constituted a continuing violation. The school district had two high schools: one was predominantly African-American, the other was predominantly Caucasian. The district closed the former and bussed the students to the latter. Parents of an African-American student sued three years later, and Defendants argued the suit was untimely. Id. at 683. In holding that the claim was not time-barred, the court reasoned that each year the school board decided which school to use and which children were assigned to which school. The court continued: "each year's decision to leave the building shuttered is a new violation. . . ." Id. at 686.
One district court has held the theory applicable in a § 1983 action where the plaintiff, a prison physician, sued three corrections officials alleging that they engaged in a conspiracy to retaliate against him for exercising his First Amendment rights. See Allen v. Iranon, 99 F. Supp.2d 1216, 1239 (D.Hawaii 1999). The court found that the defendants had a mutual understanding to harass the plaintiff in retaliation for his exercise of his free speech rights and that all allegations against the defendants were sufficiently related to constitute a continuing violation. Id.; but see DeGrassi v. City of Glendora, 207 F.3d 636, 644-45 (9th Cir. 2000) (holding former city council member's § 1983 claim based upon alleged continuing campaign to interfere with her First Amendment rights and destroy her political reputation and career was not saved by continuing violation theory where plaintiff alleged "a long-standing state of animosity and hostility, marked by incidents of personal conflict between her and other City officials" but did not show a series of related wrongful acts). Neither the Seventh Circuit nor the Supreme Court has addressed whether the continuing violation theory is applicable in a § 1983 claim alleging a series of related wrongful acts. Because this area of the law is not settled and there is at least some support in the Allen case for Plaintiffs' position, Plaintiffs' § 1983 claims (including the conspiracy claims) are not sanctionable due to staleness, see Vandenplas v. City of Muskego, 797 F.2d 425, 430-31 (7th Cir. 1986) (claims are not likely to be frivolous if the state of the applicable law is unclear or in flux).
Defendants contend that Webb sued student newspaper reporter Terrance Aldridge alleging an article he wrote was defamatory and a constitutional tort even though the claim was foreclosed by Paul v. Davis, 424 U.S. 693 (1976). Defendants maintain that counsel should have know the claim was foreclosed before filing suit and, then when confronted with Defendants' motion to dismiss, should have dismissed the claim. They argue that by failing to dismiss the claim, Plaintiffs unreasonably and vexatiously multiplied the proceedings. In response, Plaintiffs argue that Webb's affidavit of January 22, 1998, contained evidence that Aldridge had met with certain university administrators, suggesting his involvement in the conspiracy and that the newspaper article was defamatory because it alleged immoral conduct. Plaintiffs once again miss the point and ignore controlling precedent.
In Paul v. Davis, the Supreme Court held that one's reputation alone, apart from a tangible interest such as employment, is not a property or liberty interest entitled to due process protection. Paul v. Davis, 424 U.S. 693, 701 (1976). The Complaint alleged that Defendant Aldridge deprived Webb of property and liberty in violation of the Fourteenth Amendment's Due Process Clause and the First Amendment. (Compl., Count III ¶ 39 and Count IV ¶ 39.) Under the well-settled precedent of Paul, the allegations against Aldridge failed to state a claim for a deprivation of due process: The Complaint merely alleged that Aldridge defamed Webb and that Webb suffered an injury to his reputation and mental distress (id.); the Complaint did not allege that the injury to Webb's reputation accompanied a deprivation of any tangible interest such as employment. Because the Complaint failed to allege that Aldridge deprived Webb of a federally protected interested, it failed to state a § 1983 claim against Aldridge, see Graham v. Connor, 490 U.S. 386, 393 (1989). Since an actual deprivation of federally protected rights is an essential element of a § 1983 civil conspiracy claim, see Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988), the Complaint failed to state a § 1983 conspiracy claim against Aldridge, even if Plaintiffs' had some evidence that Aldridge met with certain university administrators.
Had Plaintiffs' counsel undertaken a reasonable investigation into the law, they would have discovered this fact before filing suit. The § 1983 claim and § 1983 conspiracy claim against Defendant Aldridge are frivolous, unreasonable and without legal foundation. The filing of these claims is therefore sanctionable under § 1988. Further, Plaintiffs' counsel's refusal to concede that these claims were without legal foundation and to dismiss them once it became clear that no claim was stated against Defendant Aldridge, needlessly required the court to rule on the frivolous claims, was without any plausible legal basis or justification for such refusal, and reflects at a minimum recklessness and indifference. By not dismissing the claim against Aldridge Plaintiffs' counsel pursued a course "that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound". See Walter v. Fiorenzo, 840 F.2d 427, 433-34 (7th Cir. 1988). The refusal to dismiss the § 1983 claims against Defendant Aldridge was unreasonable and vexatious and, therefore, sanctionable under § 1927.
It is claimed by Defendants that Plaintiffs and their counsel alleged Defendants violated well-established constitutional law (Compl. ¶ 24), but Plaintiffs and their counsel failed to research the law before filing their allegations and failed to acknowledge controlling legal precedent when brought to their attention. This claim appears to be sound. For example, Count I of the Complaint alleges that Webb was denied "substantive and procedural due process under BSU regulations" by the AFE Committee. (Id. ¶ 31.) Yet, at the time the Complaint was filed it had been well-established that a procedural due process claim premised upon the failure to follow procedures provided under state law or regulations was frivolous as a matter of law. See Swartz v. Scruton, 964 F.2d 607, 610 (7th Cir. 1992) ("Procedural interests under state law are not themselves property rights that will be enforced in the name of the Constitution."); Greening v. Moran, 953 F.2d 301, 304 (7th Cir. 1992) (stating claim that the state failed to follow its own procedural rules in violation of due process is frivolous) (citing Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1080 (7th Cir. 1987); cf. Parratt v. Taylor, 451 U.S. 527, 541-43 (1981) (holding due process not violated by random, unauthorized act by state employee where state cannot predict or realistically prevent deprivation and state provides a meaningful post-deprivation remedy); Hudson v. Palmer 468 U.S. 517, 532-33 (1984) (extending Parratt to intentional deprivations of property). This frivolous procedural due process claim warrants the imposition of § 1988 sanctions.
This is in addition to those against Defendant Aldridge.
To state a procedural due process claim, a plaintiff must allege that: (1) he or she had a protected life, liberty or property interest; and (2) he or she was deprived of that interest without due process of law. See Parratt, 451 U.S. at 531-35. The Plaintiffs alleged deprivations of both property and liberty interests. They argued that because Webb had a property interest in his continued employment as a tenured professor, if "the defendants attempt to terminate him without just cause, he would be entitled to raise a claim of deprivation of that property interest without due process under the Fourteenth Amendment." (Pls.' Suppl. Resp. Defs.' Mots. Dismiss Summ. J. Mem. Supp. at 3.) Plaintiffs, however, neither claimed nor offered evidence that any Defendant attempted to terminate Webb's employment. Thus, Webb's due process claim to the extent it was based on an alleged deprivation of his property right to his continued employment was frivolous and without any plausible factual foundation. The making of such a claim is therefore sanctionable under § 1988.
Plaintiffs also claimed Webb suffered deprivation of property interests involving a pay raise and his removal from the Department's Chair position. They did not allege or offer any evidence that Webb had a legitimate claim of entitlement to a better raise or the Chair position. It was well-established in 1997, though, that "[t]o have a property interest in a benefit, a person . . . must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Thus, Webb's due process claims based on alleged deprivation of property interests in his pay raise and Chair position were legally and factually groundless and are sanctionable under § 1988.
As for Wisner, Plaintiffs claimed she was denied a property right, but neither alleged nor proved any facts to support that claim. Nor did they argue in response to Defendants' motion for summary judgment on the due process claims that Wisner was denied any property right. The total failure to support such a claim with any factual allegations or evidence justifies the imposition of sanctions under § 1988 for bringing a frivolous claim without foundation in fact or law.
As for Wisner, the Plaintiffs' Supplemental Memorandum does not even attempt to argue that she was deprived of a liberty interest. More importantly, the Plaintiffs have not come forward with any evidence which would support such a claim by Wisner.
Plaintiffs also alleged violations of their First Amendment rights. The claimed protected speech included Webb's reporting of allegations of sexual harassment of students by two faculty in the Department (Meagher and Cotlar). Though the court ultimately concluded that Plaintiffs' speech was not protected because they were not speaking on matters of public concern, such complaints could have constituted protected speech under different circumstances. Furthermore, though the Complaint alleged other instances of arguably protected speech, for example, the Plaintiffs' filing of an action in state court (Compl. ¶ 35) and their filing of EEOC Charges of Discrimination (id. ¶¶ 36, 46, 49(G), 51), Plaintiffs did not rely on them in opposing Defendants' dispositive motion.
But a plaintiff asserting a First Amendment retaliation claim must demonstrate "that the protected speech caused, or at least played a substantial part in" the decision to take an adverse employment action against the employee. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Plaintiffs wholly failed to present any evidence that any of Defendants' actions were motivated by the claimed protected speech. This utter failure warrants sanctions under § 1988 for bringing and prosecuting frivolous claims lacking any factual basis.
3. Preliminary Injunction Request
Finally, Defendants argue that Plaintiffs unreasonably multiplied the proceedings by requesting a preliminary injunction. The preliminary injunction lasted approximately six days during the holiday season. The immediacy of the injunction, Plaintiffs' claimed, was because of the course scheduling assignments and the impending start of the winter semester. It is uncontradicted that Plaintiff Webb, however, had known of the course assignments since at least early September, but waited until mid-December to seek injunctive relief. From the presentation of evidence at the hearing, Plaintiffs had not spent the intervening three months gathering facts and evidence to support their claims and request for injunctive relief. Rather, it became obvious to the court that they used the preliminary injunction hearing in large part as a discovery tool. This demand of valuable court time as well as the time of opposing counsel and Defendants unreasonably and vexatiously multiplied the proceedings in this case. Plaintiffs were entitled to seek a preliminary injunction in the broad sense, true enough. But Plaintiffs lack of preparedness and use of the hearing as a discovery tool in great part cannot be condoned. Counsel should be sanctioned under § 1927 for abusing the time and resources of the court and defense counsel.
Thus, Plaintiffs' complaint that no discovery was taken in this case falls on deaf ears. It is noted that Plaintiffs moved for additional discovery, but their motion failed to comply with FED. R. CIV. P. 56(f).
The court takes seriously a request for sanctions and is generally hesitant to impose sanctions but finds them warranted here for the various reasons stated supra. The court further finds that a sanctions award is necessary to deter frivolous filings in cases such as this.
D. Calculation of a Reasonable Attorneys' Fee
Having decided that sanctions are appropriate, the court now turns to the issue of the appropriate amount of an award of attorneys' fees. Determination of a reasonable attorney's fee begins with the lodestar amount which is calculated "by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 888 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424[, 433] (1983)); see Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999); Leffler v. Meer, 936 F.2d 981, 985 (7th Cir. 1991). The court may reduce or augment the lodestar amount by considering twelve factors, Hensley, 461 U.S. at 430 n. 3, commonly referred to as the Hensley factors. "The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999); see Hensley, 461 U.S. at 433. The district court must exclude from the lodestar amount any hours that were not reasonably expended. Id. In addition, "[w]here the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433; Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000), cert. denied sub nom., City of Chicago Heights Chicago Heights Election Comm'n v. Harper, 121 S.Ct. 883 (U.S. Jan. 22, 2001) ("when a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable percentage."). To compensate for the delay in payment of attorney's fees, the court may make an adjustment by calculating the fee using the attorney's current rates. See Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994).
The factors are: "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Id.
An attorney's "reasonable hourly rate" should be based on the "market rate" that lawyers of similar ability and experience in the community charge for the types of services rendered. See Spegon, 175 F.3d at 554-55; People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996). An attorney's billing rate is presumptively the prevailing market rate for the attorney's services. See Spegon, 175 F.3d at 555; People Who Care, 90 F.3d at 1310; Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993). The party seeking fees bears the burden of presenting evidence of the market rate. See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984); Harper, 223 F.3d at 604; Spegon, 175 F.3d at 554. If the party seeking fees offers evidence of the market rate, then the burden is on the opposing party to show why a lower rate is more appropriate. See Spegon, 175 F.3d at 554-55; People Who Care, 90 F.3d at 1313.
Plaintiffs have not challenged the reasonableness of the attorney's fees requested by Defendants, except for a passing incorporation by reference to Attorney Dowling's broad sweeping and conclusory criticism of the fees. Instead, Plaintiffs seek a hearing on Defendants' petition and an opportunity to be heard and question the reasonableness and calculation of the requested fees. In his separate response limited to sanctions sought against him, Mr. Dowling challenges the overall reasonableness of the fee request (calling the request "bloated"), but does not challenge the hourly rate claimed by defense counsel. Defendants' fee petition was filed on January 31, 2000, and the verified and amended fee petition was filed on June 23, 2000. Pursuant to Local Rule 7.1, a party opposing a motion has fifteen days after service of the motion to respond thereto. S.D. IND. L.R. 7.1(a). The time for being heard on these matters has long passed. Plaintiffs filed a response to the petition for fees but simply chose not to directly address the reasonableness and calculation of the requested fees. They therefore have waived any right to contest the reasonableness or calculation of the requested fees. Plaintiffs' request for a hearing is DENIED.
Mr. Dowling urges that the "inflated" amount of fees requested justifies denial of the request for fees, citing Hamilton v. Daley, 777 F.2d 1207, 1215 n. 7 (7th Cir. 1985) (stating that "the more time and effort a defendant spends in defending a Section 1983 case, the less likely it is that the case was frivolous and that a fee award is appropriate"); Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980) (counsel claimed over 800 hours of billable time in a simple case which would be disposed by a decision in a pending case). Neither case holds that a request for a substantial amount of fees alone justifies denial for the fee request. Hamilton expressly held that an award of attorney's fees was appropriate. Hamilton, 777 F.2d at 1215. The court, however, questioned why defendants spent so much time on the case where the case was frivolous from the filing of the complaint-the claim was barred by absolute prosecutorial immunity. Id. at 1214-15. The court therefore remanded the case for a determination of whether the work performed was appropriate under the circumstances. Id. at 1215-16. The Seventh Circuit in Brown affirmed the district court's denial of § 1988 fees where most of counsel's work consisted of motions for extension of time and the plaintiff's action "raised an issue which everyone knew would be controlled by the results of litigation pending in other courts." Brown, 612 F.2d at 1058. The court found counsel's claim of over 800 billable hours "intolerably inflated" and "outrageously unreasonable" such that it warranted a complete denial of the fee request. Id. at 1059.
Brown is factually distinguishable from the instant case. Plaintiffs' action did not raise issues controlled by pending litigation in other courts and defense counsel did much more than merely file requests for extensions of time. Moreover, the Seventh Circuit has concluded in a case subsequent to Brown that a complete denial of a fee request is not warranted simply because a fee request is "excessive and unreasonable." Zabkowicz v. West Bend Co., Div. of Dart Indus., Inc., 789 F.2d 540, 549-50 (7th Cir. 1986).
In an effort to avoid the imposition of sanctions under § 1927 against him, Ralph E. Dowling, Plaintiffs' local counsel attempts to minimize his role as counsel in this action. (See Resp. Pls.' Local Counsel Ralph E. Dowling Sanctions Mot. at 8-9 (arguing he was not retained to advise Plaintiffs as to the advisability of any course of action pursued but rather, inter alia, "to be available for rapid filings," "to file the complaint and summons," and "to proofread documents for style, form and compliance with local rules."); R. Dowling Aff. ¶¶ 2(a)-(f), 3-4, 10.) Mr. Dowling claims that he "questioned no witnesses at the injunction hearing." (Resp. Pls.' Local Counsel at 9.) The official transcript of the preliminary injunction hearing, however, belies this claim. The transcript indicates that Mr. Dowling questioned Paul Errington, albeit briefly. (Tr. Prelim. Inj. Hrg., Vol. II, at 324-29.) Mr. Dowling urges that the duty of local counsel is reduced, citing Long v. Quantex Resources, Inc., 108 F.R.D. 416, 417 (S.D.N.Y. 1985). But § 1927 makes no differentiation between the liability of local counsel and foreign counsel. And, even in Long local counsel was held accountable for filing papers in violation of Rule 11. See Long, 108 F.R.D. at 417.
Mr. Dowling argues that Defendants have not identified any particular conduct of his that is sanctionable under § 1927. He states that the "the only things he filed with the Court were those papers necessary to initiate the suit-most notably the Complaint. And, local counsel did not write the Complaint." (Resp. Pls.' Local Counsel at 9) (citations omitted). Mr. Dowling ignores the fact that the very act of signing or filing, that is "presenting," a complaint may be sanctionable. Cf. Fin. Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 533 (7th Cir. 1998) (applying pre-1993 version of Rule 11 and stating that the signing of the complaint violated Rule 11); FED. R. CIV. P. 11(b) ("By presenting to the court (whether by signing, filing . . .) a pleading. . . .); FED. R. CIV. P. 11 advisory committee's note (1993 amendments) ("The person signing, [or] filing . . . a document has a nondelegable responsibility to the court, and in most situations is the person to be sanctioned for a violation.") Mr. Dowling offers no legal authority to support his implicit assumption of a requirement that the person presenting the complaint have written the complaint and the court is unaware of any.
Like the pre-1993 version of the rule, the 1993 amendments to the rule applicable here require attorneys to conduct a reasonable inquiry into the facts and law before signing pleadings and prescribes sanctions for a violation of this duty. See FED. R. CIV. P. 11(b)(2) and (3); FED. R. CIV. P. 11 advisory committee's note (1993 amendments).
Mr. Dowling also argues that § 1927 authorizes sanctions for conduct that occurs only after a case is commenced, citing MGIC Indem. Corp. v. Moore, 952 F.2d 1120, 1121 (9th Cir. 1991), and Yagman v. Baden, 796 F.2d 1165, 1187 (9th Cir. 1986). That may be the law in the Ninth Circuit. The Seventh Circuit, however, has held that the filing of a complaint can constitute an unreasonable and vexatious multiplication of the proceedings and therefore be sanctionable under § 1927. See Fin. Inv. Co., 165 F.3d at 533 (counsel filed suit in federal district court in Indiana after learning that none of plaintiffs had a colorable claim in litigation in federal district court in Florida). Overnite Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789, 794 (7th Cir. 1983), quoted by Mr. Dowling is distinguishable because the claim in that case was one of first impression and, further, the prior action in that case had been filed in state rather than federal court.
Mr. Dowling states that he undertook the equivalent of 3-4 days of legal research into the relevant statutes and case law when Plaintiffs approached him about acting as counsel in the case. Given the fast approaching end of the limitations period, counsel is not expected to have undertaken as complete a prefiling inquiry as he could have had Plaintiffs approached him earlier. See Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 444, 447 (5th Cir. 1992); FED. R. CIV. P. 11 advisory committee's note (1993 amendments) (explaining that the extent to which one has researched the issues and found some support for the theories through consultation with other counsel should be considered in determining whether paragraph (b)(2) has been violated). Further, Mr. Dowling states that the legal theories of the Complaint seemed consistent with his knowledge of the law as well as the explanation of the law of with lead counsel, Jonah Goldschmidt. The advisory committee's note to Rule 11 states that in determining whether legal claims are warranted by existing law or a nonfrivolous argument for the extension, modification or reversal of existing law or establishment of new law, a court should consider "the extent to which a litigant has researched the issues and found some support for its theories . . . or through consultation with other attorneys. . . ." FED. R. CIV. P. 11 advisory committee's note (1993 amendments). Defendants do not seek sanctions pursuant to Rule 11, but the court believes equity favors consideration of like factors in determining the appropriateness of sanctions under § 1927. The court will take these things into consideration when determining whether § 1927 sanctions against Mr. Dowling are warranted and, if so, in what amount. The court defers decision of these matters for another day, however.
Because the court is unable to determine what portion of Defendants' claimed attorneys' fees and expenses are attributable to sanctionable claims, the court finds supplemental documentation necessary. It would be next to impossible to determine what sanction, if any, is appropriate against Mr. Dowling under § 1927 without the benefit of that supplementation since that statute "provides only for excess costs caused by the plaintiffs' attorneys' vexatious behavior and consequent multiplication of the proceedings, and not for the total costs of the litigation." Roadway Exp., Inc. v. Piper, 447 U.S. 752, 756 n. 3 (1980) (quotation omitted); Pac. Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 120 (7th Cir. 1994).
Neither Plaintiffs nor Mr. Dowling on his own behalf have offered any evidence to contradict the hourly rates claimed by Defendants' counsel-$150.00 per hour for partners and $130.00 per hour for senior associates. As the evidence offered by Defendants is unrebutted, the court is required to base the attorney's fee award on the rates claimed by defense counsel, see Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992) (holding court abused its discretion in reducing attorney's hourly rate used to compute attorney's fees where claimed rate was supported by affidavits of attorneys participating in case and by affidavit of another attorney verifying the market rates).
The court, however, is without sufficient information to determine the appropriate attorneys' fee and sanction award. In support of Defendants' fee petition, Defendants submitted the affidavit of Scott E. Schockley, their attorney, with attached billing statements for the months of August 1997 through December 1999. The court cannot discern from the entries in the billing statements which requested fees were incurred in defending against the sanctionable claims. Though some entries are somewhat specific, as a general rule the entries are lacking in sufficient detail. The entries for September 1, 2 and 3, 1997 are illustrative. They provide as follows:
For example, an entry for September 8, 1997, includes "research re Title VII retaliation."
9/01/97 JHM 1.00 Research re defenses to claims 9/02/97 SES 0.50 Research 9/02/97 JHM 0.90 Research law 9/03/97 SES 3.00 Research on Motions
From entries such as these the court cannot determine whether the time expended doing research or other activity is attributable to the sanctionable claims and whether the expenditure of time was reasonable. Therefore, the court directs Defendants to submit revised documentation in support of their fee petition, providing a sufficient explanation of the expenditure of attorney time and expenses to allow the court to ascertain the reasonableness of the requested fees and expenses and to determine the amount of fees and expenses attributable to the sanctionable claims. The supplemental submission should be limited to time expended on matters for which sanctions are being allowed in this entry. The court will assume that the Defendants seek reimbursement for two-thirds of the amount of time expended on those, as reflected above in footnote number two.
A reasonable attorneys' fee includes "expenses of litigation that are distinct from either statutory costs or the costs of the lawyer's time reflected in his hourly billing rates — expenses for such things as postage, long-distance calls, xeroxing, travel. . . ." Heiar v. Crawford County, Wis., 746 F.2d 1190, 1203 (7th Cir. 1984).
As for Defendant Wynola Richards, she seeks total attorney fees in the amount of $3,037.50 as stated in the affidavit of her attorney, Roger P. Ralph. Plaintiffs do not challenge Attorney Ralph's request hourly rate of $125, and this rate is identical to the rate awarded earlier in this case for the fees related to the quashing of the subpoena served on Richards. The affidavit, however, fails to provide any information upon which the court could find that all of the 25.7 hours expended (in addition to the 3.6 hours expended in quashing a subpoena served on Richards) in the defense of this action were reasonable and expended in defense of the sanctionable claims. Therefore, the court directs Defendant Richards to submit revised documentation in support of her fee petition, providing a sufficient explanation of the expenditure of attorney time and expenses on the matters with respect to which sanctions are being awarded, only, to allow the court to ascertain the reasonableness of the requested fees and expenses and to determine the amount of fees and expenses attributable to the sanctionable claims.
Plaintiffs' request for a hearing on Defendants' petition for fees is DENIED. Defendants' petition for attorneys' fees and motion for sanctions as well as their verified and amended petition for attorneys' fees and motion for sanctions are GRANTED.
Defendants are ORDERED to submit revised documentation supporting their request for attorneys' fees, costs and expenses within fifteen days of the date of this entry to assist the court in determining the appropriate amount of the fee and sanction award.
ALL OF WHICH IS ORDERED