D.S. v. E. Porter Cnty. Sch. Corp.
| Decision Date | 04 November 2013 |
| Docket Number | Cause No. 2:11–CV–431–PRC. |
| Parties | D.S. b/n/f George M. Stahl & Debbie Lynn Stahl, George M. Stahl, and Debbie Lynn Stahl, Plaintiffs, v. EAST PORTER COUNTY SCHOOL CORPORATION, Porter Township School Corporation, Morgan Township Middle/High school, and Boone Grove Middle School, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
OPINION TEXT STARTS HERE
Mitchell A. Peters, Millerfisher Law LLC, Merrillville, IN, for Plaintiffs.
Marie Anne Hendrie, Law Offices of the Hanover Insurance Group Inc., South Bend, IN, Jacquelyn S. Pillar King, Michael D. Sears, Crist Sears and Zic LLP, Munster, IN, for Defendants.
This matter is before the Court on Porter Township School Corporation and Boone Grove Middle School's Motion for Attorney Fees [DE 43], filed on May 29, 2013, by Defendants Porter Township School Corporation and Boone Grove Middle School (collectively, the “Porter Township Defendants”). Defendants seek an award of attorney's fees under Indiana Code § 34–50–1–2 and 42 U.S.C. § 1988.
On October 24, 2011, Plaintiffs, by counsel Mitchell A. Peters, filed a Complaint in the Porter County, Indiana, Superior Court against the Porter Township Defendants and Defendants East Porter County School Corporation and Morgan Township Middle/High School (“East Porter County Defendants”). As to the Porter Township Defendants, the relevant allegations of the Complaint were that, “[d]ue to the willful and deliberate behavior of [the Porter Township Defendants] in refusing to permit her to enroll in an open-enrollment public school, [D.S.] has undergone pain, suffering, emotional distress and interference in her access to public education, all in denial of her Civil and Constitutional Rights,” and that, also as a result of the behavior of the Porter Township Defendants, Debbie and George Stahl “have undergone pain, suffering, emotional distress and loss of reputation in their community.” Compl. ¶ 20.
On November 22, 2011, the Porter Township Defendants filed a Notice of Removal, alleging federal question jurisdiction under 28 U.S.C. § 1331 based on Plaintiffs' asserted violations of D.S.'s “Civil and Constitutional Rights,” and the case was removed to this Court. The Porter Township Defendants filed an Answer on December 12, 2011.
On September 14, 2012, counsel for the Porter Township Defendants sent correspondence to counsel for Plaintiffs, advising that the asserted claims were not actionable and asking for a conference to resolve the claims. Receiving no response, defense counsel sent a qualified settlement offer in the amount of $1,500 pursuant to the provisions of Indiana Code § 34–50–1–1 et seq.
On October 17, 2012, the depositions of George M. Stahl and Debbie Lynn Stahl were taken, and on October 29, 2012, the deposition of D.S. was taken. On October 31, 2013, counsel for the Porter Township Defendants discussed the merits of the case with Plaintiffs' counsel, providing case law that a claim can become frivolous in the course of discovery.
On January 31, 2013, the Porter Township Defendants and the East Porter County Defendants each filed a Motion for Summary Judgment. On February 8, 2013, Attorney Kevin Vanderground entered his appearance on behalf of Plaintiffs, and, the same date, Plaintiffs filed a motion to extend the time to respond to summary judgment. The Porter Township Defendants filed an objection on February 8, 2013. Plaintiffs did not file a reply in support of their motion. Nevertheless, on February 11, 2013, the Court, in the interest of justice, granted Plaintiffs' motion, extending the response deadline to March 28, 2013. Before the Court's Order was docketed, Plaintiffs filed a response to summary judgment that same date, linking the brief on the electronic filing system to the East Porter County Defendants' Motion for Summary Judgment only. Plaintiffs did not file a response to the Porter Township Defendants' Motion for Summary Judgment.
Because the Court had granted Plaintiffs' motion for an extension of time, the Court withheld ruling on the Motion for Summary Judgment until the March 28, 2013 response deadline passed. On April 30, 2013, the Court granted both motions for summary judgment, and judgment was entered in favor of all Defendants.
On April 29, 2013, Attorney Vanderground filed a motion to withdraw his appearance on behalf of Plaintiffs. On April 30, 2013, Attorney Peters filed a motion to withdraw his appearance on behalf of Plaintiffs, and the Court granted both motions that day. After the summary judgment ruling was issued, counsel for the Porter Township Defendants contacted Plaintiffs, who were proceeding pro se at that time, to resolve the issue of attorney's fees due and owing. On May 28, 2013, Attorney Jason Bach entered his appearance on behalf of Plaintiffs.
On May 28, 2013, Plaintiffs filed a Motion for Relief from Final Judgment Pursuant to FRCP 60(b). The Porter Township Defendants filed a response on May 30, 2013, and Plaintiffs filed a reply on June 6, 2013.
On May 29, 2013, the Porter Township Defendants filed the instant Motion for Attorney Fees. Plaintiffs filed a response in opposition on June 11, 2013, and the Porter Township Defendants filed a reply on June 12, 2013.
On October 17, 2013, the Court denied Plaintiffs' Motion for Relief from Final Judgment.
The Porter Township Defendants request an award of attorney's fees under Indiana Code § 34–50–1–6 based on the qualified settlement offer sent in September2012 as well as pursuant to 42 U.S.C. § 1988. The Court considers each in turn.
1. 42 U.S.C. § 1988
Although the request for attorney's fees pursuant § 1988 is untimely, the Court finds that the late filing was the result of excusable neglect and that an award of attorney's fees in a reduced amount is warranted. Federal Rule of Civil Procedure 54(d)(2) governs the timing for filing a request for attorney's fees, including § 1988 fees, following judgment:
(A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of judgment;
(ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award;
(iii) state the amount sought or provide a fair estimate of it; and
(iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
Fed.R.Civ.P. 54(d)(2) (emphasis added).
The Seventh Circuit Court of Appeals has held:
When attorney's fees are taxed as costs, which is the usual way in which a prevailing party obtains such fees, see, e.g., 42 U.S.C. § 1988, the deadline for seeking them is 14 days, Fed.R.Civ.P. 54(d)(2)(B), unless this time is extended by an order (including, we have held, a standing order, or rule) of the district court. S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 308 (7th Cir.1995) (citing Johnson v. Lafayette Fire Fighters Ass'n, 51 F.3d 726 (7th Cir.1995)). This Court did not issue an order extending the 14–day deadline, and the Local Rules for the Northern District of Indiana do not extend the 14–day deadline. The only Local Rule related to Federal Rule 54 is Local Rule 54–1 regarding “costs,” which provides:
(a) Process. To recover costs, a party must file and serve a completed AO Form 133 (available from the clerk or the court's website) within 14 days after final judgment is entered.
(b) Extensions. The court may extend the 14–day deadline for good cause if, before the original deadline, the party files a motion requesting an extension.
N.D. Ind. L.R. 54–1 (effective Jan. 1, 2012). No such motion was filed. 1
The instant motion for attorney's fees, pursuant to 42 U.S.C. § 1988, was filed on May 29, 2013, twenty-nine days after the entry of judgment on April 30, 2013. See Robinson v. City of Harvey, Ill., 617 F.3d 915, 918 (7th Cir.2010) (). However, the Court finds that the failure to act was the result of excusable neglect under Federal Rule of Civil Procedure 6(b). See Crue v. Aiken, 370 F.3d 668, 680–81 (7th Cir.2004) (). “In determining whether a late filing is the result of excusable neglect, the district court looks to whether there will be prejudice to the opposing party, the effect on the judicial proceedings, the reason for the delay, and whether the movant acted in good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
First, Indiana Code § 34–50–1–6, the other provision under which attorney's fees are sought in this motion, requires that the motion be filed within 30 days of entry of judgment. Ind.Code § 34–50–1–6(c). Second, the Porter Township Defendants acted in good faith as they attempted to resolve the attorney's fees issue informally with Plaintiffs by correspondence dated May 14, 2013. That correspondence explained that, if Plaintiffs did not tender the $1000 requested in attorney's fees under § 34–50–1–6 by May 22, 2013, counsel had been instructed to file a motion for fees with the court based on both § 34–50–1–6 and § 1988. The judicial proceedings are not adversely affected because Plaintiffs themselves filed a post-judgment Motion for Relief from Final Judgment on May 28, 2013, and because the instant motion does not affect Plaintiffs' ability to file an appeal. See Patzer v. Bd. of Regents of Univ. of Wis. Sys., 763 F.2d 851, 859 (7th...
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