ARMSTRONG RUBBER CO., SE DIV. v. LOCAL UNION 670

• Decision Date: 29 January 1985
• Docket Number: No. 3-83-0978.,3-83-0978.
• Citation: 601 F. Supp. 1352
• Parties: The ARMSTRONG RUBBER COMPANY, SOUTHEASTERN DIVISION v. LOCAL UNION 670, UNITED RUBBER WORKERS, AFL-CIO.
• Court: U.S. District Court — Middle District of Tennessee

601 F. Supp. 1352

The ARMSTRONG RUBBER COMPANY, SOUTHEASTERN DIVISION v. LOCAL UNION 670, UNITED RUBBER WORKERS, AFL-CIO.

No. 3-83-0978.

United States District Court, M.D. Tennessee, Nashville Division.

January 29, 1985.

Charles Hampton White, Nashville, Tenn., for plaintiff.

Mike Passino, Nashville, Tenn., for defendant.

MEMORANDUM

MORTON, Senior District Judge.

The defendant in the above-styled case has applied for an award of its attorneys' fees pursuant to Local Rule 13(e) of this court. M.D.Tenn.R. 13(e) (1984).¹ The defendant claims it is entitled to such an award because the plaintiff obstinately compelled it to protect the well-recognized right of one of its members through litigation. See Alyeska Pipeline Service Co. v. Wilderness Co., 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975); Haycraft v. Hollenbach, 606 F.2d 128, 133 (6th Cir.1979). For the reasons set forth below, the defendant shall recover from the plaintiff the reasonable costs and attorneys' fees it incurred before this court.

The plaintiff brought this action pursuant to § 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185, to challenge an arbiter's award entered on December 1, 1983. That award ordered reinstatement of a union employee named Akins whom the plaintiff had discharged for repeatedly taking excessive work breaks. Under the terms of the parties' collective bargaining agreement, the plaintiff could discharge an employee with just cause for that employee's fifth violation of the work break rule. The arbiter found, among other things, that the plaintiff had violated § 9(i)² of the collective bargaining agreement when one of its agents handed Akins written notice of his second, third, and fourth disciplinary violations without a union representative being present. The arbiter held that the plaintiff's violation of § 9(i) rendered all three of those disciplinary actions ineffective. Since Akins' discharge with cause was premised upon his four prior violations, the arbiter's invalidation of three of those violations rendered his discharge ineffective.

The plaintiff first attempted to challenge the arbiter's decision through a motion to amend its complaint in the case of The Armstrong Rubber Company, Southeastern Division v. Union 670, United Rubber Workers, AFL-CIO-CLC, Civ. No. 3-83-0712 (M.D.Tenn. December 28, 1983) (hereinafter Copass). In that case, the arbiter had decided that the plaintiff violated § 9(i) by giving a union employee named Copass written notice of his discharge without a union representative being present. This court denied the motion to amend. The plaintiff filed the present action on December 21, 1983.

On December 28, 1983, this court affirmed the arbiter's decision in the Copass case because it was based upon a permissible construction of § 9(i).

On January 18, 1984, the defendant filed its answer, counterclaim and motion for summary judgment in this case. In its pleadings and motion for summary judgment, the defendant requested its reasonable costs and attorneys' fees on the ground that the plaintiff's appeal of the arbiter's award was a bad faith effort to harrass the defendant and its members. See Alyeska Pipeline Co., supra; Haycraft, supra. The plaintiff responded with its own motion for summary judgment and an answer to the counterclaim.

On May 31, 1984, this court ruled on the cross motions for summary judgment as follows: "In accordance with the memorandum contemporaneously filed, the motion for summary judgment by the plaintiff is overruled and denied, and the motion for summary judgment by the defendant is granted. The case is hereby dismissed." The memorandum accompanying the order explained that the defendant's motion for summary judgment was granted because the arbiter's ruling that Akins had been notified of disciplinary action in violation of § 9(i) was a permissible interpretation of the collective bargaining agreement.

The defendant filed its pending application for attorneys' fees on June 25, 1984. The plaintiff has objected to that application on two grounds.³ First, it argues that the defendant's application is untimely. Second, it alleges that it did not litigate this case in bad faith. These defenses shall be examined in turn.

The plaintiff contends that the defendant's motion for attorney's fees is one to alter or amend the judgment, and, thus, had to be filed within ten (10) days of entry of judgment. Fed.R.Civ.P. 59(e). The plaintiff grounds this contention on alternative theories.

First, the plaintiff asserts that since the defendant requested its attorneys' fees in its counterclaim and motion for summary judgment, the court's failure to award them in the final order disposed of that request. However, an equally plausible argument can be made that the complete failure of the court to rule upon a request for relief means that its order is not a final one. See Gordon v. Heimann, 715 F.2d 531, 538-39 (11th Cir.1983). As is explained below, the court finds that the judgment entered in this case did not deny the defendant's request for attorneys' fees.

Second, the plaintiff argues that even if the court's order of May 31, 1984, did not explicitly dispose of the defendant's request for attorneys' fees, that request, based as it was upon the plaintiff's alleged bad faith, was so inextricably intertwined with the merits of the controversy that it must be deemed a motion to alter or amend the judgment. See Fed.R.Civ.P. 59(e). As authority for this proposition the plaintiff cites the case of Snyder v. Leake, 87 F.R.D. 362 (N.D.Miss.1980). It does appear that the Fourth, Fifth and Seventh Circuits have taken the position that an inquiry must be made on a case-by-case basis to determine whether an application for attorneys' fees is integrally related to the proceedings on the merits or collateral to them. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1164 (5th Cir.1984) (fee awards in a RICO civil action integral to the merits); Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143, 1147 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983) (fee awards in an action for failure to pay maintenance and care integral to the merits); Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 658 (7th Cir.1981) (fees awarded under 15 U.S.C. § 1117 for bad faith litigation of a trademark claim integrally related to the merits); Wright v. Jackson, 522 F.2d 955, 957-58 (4th Cir. 1975) (fees awarded for obduracy integrally related to the merits); Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir.1971) (fees awarded for bad faith integrally related to the merits). But see Overnight Transportation Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 793 (7th Cir.1983) (fees awarded pursuant to 28 U.S.C. § 1927 collateral to the merits); Terket v. Lund, 623 F.2d 29, 34 (7th Cir.1980) (dictum) (fees awarded to defendants pursuant to 42 U.S.C. § 1988 collateral to the merits). If a request for fees is deemed integrally related to the merits of an action, these courts hold that it must be treated as a motion to alter or amend the judgment which must be filed within 10 days of entry of the judgment. Hairline Creations, Inc., supra; Stacy, supra; Snyder, supra; Fed.R. Civ.P. 59(e). If the request for fees is found to be collateral to the proceedings on the merits, it is treated as a motion for costs subject only to the time limit of reasonableness implied in Fed.R.Civ.P. 54(d). Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir.1980) (fee awards pursuant to 42 U.S.C. § 1988 collateral to the merits). One could draw a negative inference from language in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) that would support this dichotomy between integral and collateral requests for attorneys' fees. White v. New Hampshire, supra, at 452, 102 S.Ct. at 1166.

The better reasoned approach, however, is to treat all requests for attorneys' fees alike. As the Eleventh Circuit has stated,

Perpetrating the dichotomy established by Stacy v. Williams, 446 F.2d 1366 (5th Cir.1971) and Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), can only result in future timing conflicts like the ones in this case. Most important, the Supreme Court's emphasis in White v. New Hampshire of the limited role of Fed.R. Civ.P. 59(e) suggests that attorneys' fees requests should never be governed by that time limitation.

Gordon, supra, at 538; accord, International Association of Bridge, etc. v. Madison Industries, Inc., 733 F.2d 656, 659 (9th Cir.1984); Cox v. Flood, 683 F.2d 330, 331 (10th Cir.1982); Obin v. District No. 9 of the International Association of Machinists & Aerospace Workers, 651 F.2d 574, 583-84 (8th Cir.1981).⁴ While it is true that fee awards based on a party's bad faith require an inquiry into the merits of an action, the same can be said of statutory fee awards made to prevailing defendants under Title VII, Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657 (1978), and 42 U.S.C. § 1988, Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980). Yet, in White v. New Hampshire the Supreme Court gave no indication that it would treat prevailing defendants' requests for fees pursuant to 42 U.S.C. § 1988 as motions to alter or amend the judgment. To the contrary, it suggested that Fed.R.Civ.P. 59(e) should never govern the time for filing applications for attorneys' fees. See Gordon, supra.

All the cases addressing the timely filing of requests for attorneys' fees seem concerned that if those requests are treated as ones for costs they may be made long after the facts and controlling legal principles have faded in the judge's memory. That danger is obviously foreclosed where, as in this district, there is a local rule prescribing the time within which a request for attorneys' fees can be filed.

Therefore,...