Gordon v. Heimann, s. 81-8017
| Decision Date | 19 September 1983 |
| Docket Number | 81-8018,Nos. 81-8017,s. 81-8017 |
| Citation | 715 F.2d 531 |
| Parties | Edwin F. GORDON, Plaintiff-Appellant, Cross-Appellee, v. John HEIMANN, U.S. Comptroller of the Currency, et al., Defendants-Appellees, Cross-Appellants. Edwin F. GORDON, Plaintiff-Appellant, v. John HEIMANN, U.S. Comptroller of the Currency, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Julian D. Halliburton, pro se.
John W. Stokes, Jr., Decatur, Ga., for Gordon.
Jeffrey M. Smith, Trotter, Bondurant, Miller & Hishon, H. Lamar Mixon, Atlanta, Ga., for George Barley, Jr., Maxwell W. Well, Jr., Commercial Bank at Winter Park and Tucker Frederickson.
Robert W. Beynart, Smith, Cohen, Ringel, Kohler & Martin, Atlanta, Ga., for E.G. Green, Heminway Corporation.
Peter D. Webster, Bedell, Bedell, Dittmar & Zahmer, Jacksonville, Fla., for Gustave T. Broberg, Jr.
Charles H. Kirbo, King & Spalding, Charles M. Shaffer, Jr., Atlanta, Ga., John R. Bush, Bush, Ross, Gardner, Warren & Rudy, Tampa, Fla., for First National Bank in Palm Beach, Chester H. Ferguson, William K. Deveer, Wyckoff Myers, John F. Fudy, II, and Lykes Financial Corp.
John D. Levine, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., Paul B. Erickson, Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, Fla., and Ronald L. Reid, Alston, Miller & Gaines, Atlanta, Ga., for T.R. Anderson, Robert D. Lacey.
R. Lee Bennett, Piersol, Boroughs, Frimm & Bennett, Orlando, Fla., for Estate of M.M. Overstreet.
H. Robert Koltnow, Swope, Stobs & Koltnow, Miami Shores, Fla., for James L. Enrico.
Wasson, Sours & Harris, W. Hensell Harris, Jr., Atlanta, Ga., for Terry.
Kutak Rock & Huie, Edgar H. Sims, Jr., Frank A. Lightmas, Jr., Atlanta, Ga., for First National Bank & Trust Co. of Rivera Beach, et al.
Kathie G. McClure, Asst. U.S. Atty., Atlanta, Ga., Ronald R. Glancz, Kathleen M. Mullarkey, Litigation Division, Comptroller of the Currency, Washington, D.C., for John Heimann, Robert J. Herrmann, Governors of the Federal Reserve Board and Federal Reserve Bank of Atlanta.
R. Dal Burton, Atlanta, Ga., for William L. Gunter.
H. Robert Koltnow, Swope, Stobs & Koltnow, Miami Shores, Fla., for James L. Enrico.
Robert W. Beynart, Smith, Cohen, Ringel, Kohler & Martin, John L. Latham, Atlanta, Ga., for E.G. Green.
Edgar H. Sims, Jr., Kutak, Rock & Huie, Frank A. Lighmas, Jr., Atlanta, Ga., for First Nat'l Bank & Trust Co. of Rivera Beach, Vincent Burkhardt, A.E. Osborne, III, Herbert P. Benn, Southeast Merger Co.
Appeals from the United States District Court for the Northern District of Georgia.
Before HATCHETT and CLARK, Circuit Judges, and SCOTT *, District Judge.
On July 25, 1980, appellant Gordon filed a seven count complaint naming 38 individuals and entities as defendants and alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. sections 1961 et seq. The district court stayed discovery on October 29, 1980, dismissed the complaint for failure to state a claim on which relief could be granted on December 2, 1980, and denied Gordon's motion for leave to amend his complaint as moot on February 24, 1981.
Undeterred by the failure of his prior complaint, Gordon filed an almost identical complaint against 44 individuals and entities on February 13, 1981, again alleging violations of RICO. On May 28, 1981, the district court entered an order dismissing this second action as barred by the doctrine of res judicata.
Gordon now appeals the district court's ruling in both cases, contending that the district court erred in dismissing the complaints, in refusing to allow Gordon to amend the complaint, and in preventing discovery. Gordon and his attorney Halliburton also appeal the district court's rulings that the defendants in these cases were entitled to attorneys' fees because the cases were pursued in bad faith. We affirm these rulings of the district court.
We have reviewed the extensive briefs and records in these two cases, which we note are the twenty-second and twenty-third cases filed by Gordon stemming from the same transactions. We conclude that the cases below and their present appeals are frivolous and merit no further discussion by this court.
Instead, we turn our attention to the cross-appeals regarding attorneys' fees. The 44 named defendants in the two lawsuits were represented by 11 sets of attorneys, all of whom eventually filed motions for attorneys' fees in both cases. Defendants requested that fees be assessed against Gordon and his attorneys Halliburton, Schwind, Stokes, and Sneed & Associates. On July 13, 1981, the district court held an evidentiary hearing. The defendants presented evidence on whether or not they were entitled to an award of attorneys' fees and, if so, what the reasonable amount of the attorneys' fees and costs should be. At the hearing, defendants voluntarily withdrew their motions for the award of attorneys' fees against Stokes and Sneed & Associates. Based on evidence produced at the hearing, the district court ruled that the motions for attorneys' fees awards against Schwind should be denied because of his minor role in the cases.
In its order of September 25, 1981, the district court granted all the motions for attorneys' fees against Halliburton and Gordon in the second case at issue. 1 The court's decision to award attorneys' fees in favor of the defendants was based on the inherent power of the court, the provisions of 28 U.S.C. sec. 1927, 2 and Federal Rule of Civil Procedure 11. 3 In the first case, the district court awarded attorneys' fees only to defendant First National Bank of Palm Beach BPB. The court concluded that the motions of all other defendants for attorneys' fees in the first case were untimely and should be denied. The defendants whose motions were denied filed cross-appeals in the present action asserting their entitlement to the fees in question.
Attorneys' fees were first requested in the first case in the October 17, 1980 motion for dismissal of the complaint filed by the federal defendants. This motion was pending on December 2, 1980 when the district court entered its order of dismissal, which read, in part, that "the various other motions now pending are moot as a result of this order." The FNBPB made the next request for attorneys' fees in a motion to alter the judgment, under Federal Rule of Civil Procedure 59(e), 4 to include an award of attorneys' fees. This motion was served on December 12, 1981, within ten days of judgment as is required by Federal Rule of Civil Procedure 59(e), with an accompanying memorandum of law stating the arguments in favor of awarding attorneys' fees. Motions for attorneys' fees by all the other defendants, and a renewed motion by the federal defendants, were filed between December 22, 1980 and March 23, 1981. Many of these motions adopted by reference the arguments presented in FNBPB's memorandum of law.
In denying the motions for attorneys' fees, in this first case, of all defendants except FNBPB, the district court concluded that these motions for attorneys' fees were all Rule 59(e) motions and therefore untimely. The district court relied on Stacy v. Williams, 446 F.2d 1366 (5th Cir.1971), in which this court held the Rule 59(e) ten-day limitation applicable to a request for attorneys' fees. With regard to the motion of the federal defendants, the district court held that it had "implicitly denied" their motion in this case by explicitly denying their almost identical and cross-referenced motion in another case before the court. Additionally, in denying the motion of the federal defendants, the court relied on the judgment, denoted "final judgment," which was entered in this case and which stated that plaintiff would take nothing and defendants would recover their costs. That final judgment did not mention attorneys' fees.
We note initially that attorneys' fees have been requested in different cases following a variety of procedures. Attorneys' fees may be requested in an initial complaint, in an answer to a complaint, in a bill of costs under Rule 54(d), 5 in a Rule 59(e) motion to amend the judgment, and in undifferentiated motions for attorneys' fees at different times in the course of or after litigation. 6 Additionally, a separate action may be filed for the purpose of obtaining attorneys' fees incurred in a prior case. Courts have implicitly sanctioned these approaches, often without analysis of the procedure employed. See, e.g., Metcalf v. Borba, 681 F.2d 1183 (9th Cir.1982) ; Hairline Creations, Inc. v. Kefalas, 664 F.2d 652 (7th Cir.1981) ; Ryan v. Hatfield, 578 F.2d 275 (10th Cir.1978) ; McCandless v. Great Atlantic and Pacific Tea Co., Inc., 529 F.Supp. 476 (N.D.Ill.1982) ...
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