Allen v. Murph

• Decision Date: 21 September 1999
• Docket Number: No. 98-3948,98-3948
• Citation: 194 F.3d 722
• Parties: (6th Cir. 1999) Robert Allen, Cliff McNeilly, Carolyn Mack, Plaintiffs-Appellees, v. Thomas D. Murph, Doris B. Murph, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 722

194 F.3d 722 (6th Cir. 1999)

Robert Allen, Cliff McNeilly, Carolyn Mack, Plaintiffs-Appellees, v. Thomas D. Murph, Doris B. Murph, Defendants-Appellants.

No. 98-3948

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 21, 1999

Decided and Filed: October 21, 1999

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 97-00096--Michael R. Merz, Magistrate Judge.

Ingolf R. Dinklage, Dayton, Ohio, for Appellants.

Noel Wyandt Vaughn, Dayton, Ohio, for Appellees.

Before: KRUPANSKY, NELSON, and SILER, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which SILER, J., joined. KRUPANSKY, J. (pp. 724-30), delivered a separate concurring opinion.

OPINION

DAVID A. NELSON, Circuit Judge.

Thomas and Doris Murph appeal an order in which the district court denied a motion for leave to file an untimely application for attorney fees. The Murphs argue that their untimeliness should be excused because they personally did all that could reasonably have been expected of them in attempting to prosecute the application promptly. Unfortunately for the Murphs, however, their attorneys did not act with similar diligence -- and an attorney's inexcusable neglect is normally attributed to his client. See Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396-97 (1993). Accordingly, and because we find no abuse of discretion on the part of the district court, we shall affirm the challenged order.

I

As defendants in an action alleging housing discrimination, the Murphs won a jury verdict at trial. Judgment on the verdict was entered June 5, 1998.

On June 7, 1998 - acting pro se, and without favoring their adversaries' lawyer with a copy - the Murphs sent a letter to the trial judge requesting that the case be "formally declared a frivolous action" so that the Murphs could "recover some of [their] damages." By letter received five days later, the judge responded that he could not properly address the merits of the Murphs' request. The judge asked the Murphs to make any requests to the court through their counsel, Attorney Charles Lowe.

Thomas Murph contacted Attorney Lowe's office on June 13, 1998. He was told that Mr. Lowe had gone fishing in Canada and could not be reached until June 22. Mr. Murph then asked to speak with Mr. Lowe's associate, Jeffrey Snead. Unavailable on the 13th, Mr. Snead returned Mr. Murph's call on the next day. Snead told the client that any request for attorney fees would have to be handled by Lowe, and that he (Snead) would not undertake to make an application for fees without Lowe's authorization, guidance and assistance. Mr. Snead did not tell the client that there was a 14-day deadline for filing an attorney fee application. Neither did he volunteer to consult another lawyer in the office, and he did not suggest that the Murphs consult other counsel.

Mr. Murph spoke with Attorney Lowe on June 23, 1998. Lowe declined to prepare a motion for attorney fees, and he advised the Murphs to retain the services of another lawyer.

The Murphs did so, and on July 2, 1998 -- 27 days after the entry of judgment -- they filed their motion for leave to apply out-of-rule for attorney fees and non-taxable expenses. The motion papers described the events outlined above and argued that the delay was the result of excusable neglect. Relying on Pioneer, the district court denied the motion.

II

Rule 54(d)(2), Fed. R. Civ. P., requires that an application for attorney fees and non-taxable costs be filed within 14 days of the entry of judgment. The Murphs did not meet this requirement. Neither did they request an enlargement of time within the 14-day period. Under these circumstances, the district court could permit a late filing only if the delay was the result of "excusable neglect." Rule 6(b)(2), Fed. R. Civ. P.

A district court's determination with respect to excusable neglect is subject to review under an "abuse of discretion" standard. See In re Pioneer Investment Services Co., 943 F.2d 673, 676 (6th Cir. 1991), aff'd, 507 U.S. 380 (1993); Committee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 824 (9th Cir. 1996). We cannot say that the district court abused its discretion here.

In seeking assistance first from the court and then from their own counsel, the Murphs acted promptly and diligently in their effort to recover attorney fees and non-taxable costs. However, as the Supreme Court held in Pioneer, a determination of "excusable neglect" does not turn solely on whether the client has done all that he reasonably could to ensure compliance with a deadline; the performance of the client's attorney must also be taken into account. See Pioneer, 507 U.S. at 396. The Supreme Court expressly rejected a suggestion previously made by this court that "it would be inappropriate to penalize [the clients] for the omissions of their attorney;" on the contrary, the Court held, clients must "be held accountable for the acts and omissions of their chosen counsel." Id. at 396-97. In light of Pioneer, it was clearly appropriate for the district court to focus its inquiry on the neglect of the Murphs' attorneys.

That neglect was not necessarily excusable. Attorney Lowe represented the Murphs at trial and remained their counsel of record after the entry of judgment. He knew or should have known that the Murphs could seek attorney fees under 42 U.S.C. § 3613(c)(2), and he knew or should have known that they would have only 14 days in which to do so. Yet Mr. Lowe departed for the wilds of Canada without knowing the clients' wishes and without having arranged for another lawyer to cover the case in his absence.

Mr. Lowe's associate also knew or should have known of the deadline for seeking attorney fees. Yet when Mr. Murph asked him -- before the filing period had run -- to prepare an application, the associate refused to act without the guidance of Mr. Lowe. At the very least, arguably, the associate should have sought an extension of time in order to preserve the clients' rights. Taking all relevant circumstances into account, see Pioneer, 507 U.S. at 395, a fair-minded judge could easily find that the carelessness of these attorneys in allowing the 14-day period to run was inexcusable. The district court did not abuse its discretion in so finding.

AFFIRMED.

KRUPANSKY, Circuit Judge, concurring.

I join the opinion and judgment of the panel majority. However, I write separately to clarify joining in this disposition.

The defendants-appellants, Thomas D. Murph and Doris B. Murph, a married couple ("the Murphs"), have contested the lower forum's denial of their application seeking to file an untimely motion for attorney fees and litigation expenses as prevailing parties, ¹ pursuant to the discretionary judicial doctrine of "excusable neglect." The Murphs successfully defended a charge of housing discrimination which had been instituted by three individuals under Title VIII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 3601 et seq. Following a jury trial conducted by a United States Magistrate Judge pursuant to a stipulation under 28 U.S.C. §636(c) and Fed. R. Civ. P. 73(b) which culminated in a favorable verdict for the defendants, journalized by a final judgment on June 5, 1998. Accordingly, to comply with the Federal Rules of Civil Procedure, the Murphs would have needed to perfect their petition for litigation costs and attorney fees on or before June19, 1998. See Fed. R. Civ. P. 54(d)(2)(B) (directing that a post-trial motion for recovery of attorney fees and related non-taxable expenses must be filed and served no later than fourteen days following entry of the judgment).

Because the Murphs had already expended in excess of $40,000 for their legal defense in this action, they elected to seek recovery of their litigation costs and attorney fees without assistance from their trial counsel of record, Charles Lowe. On June 7, 1998, acting pro se, they mailed an ex parte letter, which both Murphs signed, to the presiding magistrate. That message recited:

I would like to request that the subject case be formally declared a frivolous action so that I can recover some of my damages. Since I am not sure how this takes place I wish for the courts [sic] help in doing it or explaining to me what needs to be done.

You are in a position since the evidence has been presented to see that I have irrefutable evidence (phone records and receipts) that the plaintiffs are simply not telling the truth. Even if you do not believe their case is merely a scam to defraud me out of money, careful study of the phone records and their complaint, depositions, and testimony proves my version of what happened.

Thank you for your consideration in this matter and be assured we come forward with the greatest respect for the court's position.

By letter dated June 10, 1998 and postmarked June 11, 1998, the magistrate replied to the defendants' inquiry:

I have received your letter of June 7, 1998, regarding the case which we tried last week.

For a number of reasons, it is not proper for me to consider it or to respond on the merits of the suggestion that you make. First of all, a party represented by counsel in our Court must make all of their requests to the Court through that attorney. Secondly, since the request was not sent to the other side (at least no copy to Ms. Vaughn is shown), it would be a violation of the rules against ex parte communications for me to consider it.

I must respectfully, therefore, decline to respond and ask you to make any requests to the Court through Mr. Lowe.

In their ignorance, irrespective of the Murphs' expressed preference to pursue their post-trial application for costs and attorney fees pro se, the name of Lowe and his law firm (Crew, Buchanan & Lowe of Dayton, Ohio) was never formally removed as attorneys of record for the Murphs during June 1998. ² Moreover, no proof...