Hawkins v. Schirack, C84-2433A.
| Citation | 659 F. Supp. 1 |
| Decision Date | 04 February 1986 |
| Docket Number | No. C84-2433A.,C84-2433A. |
| Parties | Ricardo E. HAWKINS, Plaintiff, v. Robert C. SCHIRACK, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
J. Dare Hawkins, Thomas F. Aubry, Houston, Tex., for plaintiffs.
Sanders J. Mestel, Schulman, Mestel & Falvey Co., Canton, Ohio, for Schirack.
James R. Unger, Prosecutor's Office, Canton, Ohio, for deft. Board of Com'rs, Stark Co.
Jacob F. Hess, Jr., Amerman, Burt & Jones Co., Canton, Ohio, for Rufo.
Ralph Ross, Canton, Ohio, for Patrick.
Robert W. Blakemore, David A. Lieberth, Blakemore, Rosen, Meeker & Varian Co., Akron, Ohio, for Sponseller.
Mark J. Skakun, Akron, Ohio, David M. Bridenstine, Asst. Pros. Atty., Canton, Ohio, for Watkins.
By an order filed May 14, 1985, this Court granted the motion of the plaintiff, Ricardo Hawkins, to dismiss with prejudice the amended complaint filed against all defendants. Before the order further was filed, a number of defendants had indicated the belief that they were entitled to an award against the plaintiff for attorney fees and expenses. Consequently, the order of May 14, 1985, granted the defendants leave for sixty (60) days to file applications for attorney fees with the mandate that the application should include a lodestar itemization of the fees being sought together with a factual and legal basis for the proposed award. Two defendants, Robert Schirack and Richard Watkins, subsequently filed applications for fees and expenses.
On August 2, 1984, a complaint was filed by the plaintiff against a number of defendants. Watkins was not named. An amended complaint was filed on August 15, 1984 adding additional defendants, including Watkins.
The amended complaint was lengthy and contained allegations of conspiracies, official corruption, and allegations of criminal actions in violation of 18 U.S.C. § 1961, et seq. Watkins was named in the caption as being sued in his official capacity as a member of the Board of Commissioners of Stark County.
Defendant Watkins requested Attorney Louis Boettler of Canton to review the complaint on his behalf. As indicated by his affidavit filed in support of the application for fees, Boettler contacted J. Dare Hawkins, one of the counsel of record for the plaintiff and was advised by Hawkins that he knew of no specific act of wrongdoing by Watkins and that Watkins had been named as a defendant in the amended complaint because plaintiff and his counsel suspected corruption in that Watkins' personal companies may have dealt with governmental entities during Watkins' terms of office. Prior to his election to the Board of County Commissioners, Watkins served as a councilman in the City of Canton. As additional affidavits filed in support of the application for fees indicates, a review of public records of Stark County and the City of Canton reveal no such dealing with Watkins' personal companies while he served as a Canton City Councilman or as a Stark County Commissioner.
The plaintiff and his lawyers oppose the application for the attorney fees. However, no affidavits are supplied in opposition to the motion for fees by Watkins. No testimonial support is offered for the allegations leveled against Watkins.1 Counsel for the plaintiff argue that their client, who was serving as Chief Deputy Sheriff for Stark County at the time the complaint was filed, had formerly served as an investigating officer with the Internal Revenue Service. However, information that he had developed in that capacity was not available to him to support his suit brought in his private capacity and thus his decision to voluntarily dismiss his action against the defendants, knowing it would be with prejudice, was the proper course of action to take. Plaintiff argues that under those circumstances, he should not be required to bear Watkins' attorney fees. Additionally, the plaintiff and his counsel contend by way of a motion for partial summary judgement, that since Watkins was sued in his official capacity, he had no need to hire private counsel and thus the application for fees should be denied on that basis as well.
As a threshold matter, the Court finds that where a public official is charged with corrupt activity in a lawsuit filed by a chief deputy sheriff for the county that the accused public official is serving, apparently limited by an indication that the suit is brought against the public official in only his official capacity, the public official designated and accused is entitled to seek private counsel and to be reimbursed for those attorney fees for such private counsel. Moreover, in this case, the other two members of the Board of Commissioners for Stark County, Norman Sponseller and Gerald Patrick, were sued in their individual capacity, and the nature of the unsupported allegations against Watkins, if proved, would support a judgment against Watkins in his individual capacity. Under such circumstances, Watkins was more than justified in obtaining private counsel to protect his individual interest. Thus, plaintiff's motion for partial summary judgment against Watkins on the issue of attorney fees and expenses is denied.
The defendant Watkins advances three grounds for an award of fees:
Rule 11 of the Federal Rules of Civil Procedure was amended in 1983 to increase a sense of responsibility on the part of lawyers with respect to the filing of complaints and other papers in federal litigation. As amended Rule 11 reads in pertinent part:
Watkins' claim for attorney fees under Rule 11 is grounded on the Boettler affidavit indicating that the inclusion of Watkins was based upon the suspicion that his companies had engaged in illegal contracts with the governmental agencies Watkins served as a public official. However, a routine check of public records would have disclosed the absence of any evidence to support such an allegation. The plaintiff, trained in investigation, could have performed such an investigation. The absence of any affidavit from the plaintiff or his counsel indicates that no such investigation was undertaken. The signatures of counsel on the amended complaint joining Watkins as a defendant constitutes a certificate under the provisions of Rule 11 that the charges against Watkins are based upon their knowledge, information and belief formed after reasonable inquiry and that the complaint was not interposed for any improper purpose such as to harass. The Court finds under all the circumstances of this case as demonstrated by the affidavits filed in support of the motion for attorney fees and the response filed by plaintiff's counsel that Rule 11 was violated with respect to the defendant Watkins. A routine check would have disclosed that there was no basis in fact for the suspected involvement in illegal contract. Given the fact that Watkins was a candidate for election in 1984 to the very office for which the plaintiff had been an unsuccessful candidate in the May primary, the allegation that the amended complaint was filed for the purpose of harassing Watkins is evident.
The Court finds that Watkins is entitled to an award for reasonable attorney fees against counsel of record for the plaintiff.
The Court finds that the submission of the defendant Watkins in support of an award for fees against counsel for the plaintiff is sufficient to support an award of fees against the plaintiff on the basis of bad faith. Alaska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975); Gordon v. Heimann, 715 F.2d 531 (11th Cir.1983). Grounds for a bad faith award exist when a plaintiff brings a groundless suit and forces the defendant to expend time and effort conducting his defense. Such is the case with respect to plaintiff's action against the defendant Watkins. Consequently, the defendant Watkins is also entitled to an award for reasonable attorney fees against the plaintiff.
The filing of the lawsuit and the amended complaint set off a discovery battle of substantial magnitude as the defendants, including Watkins, attempted to smoke out the plaintiff's claims. The process was difficult and delayed on several occasions by actions of the plaintiff thereby prompting the claim that the provisions...
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Sigcho-Lopez v. Ill. State Bd. of Elections
...did not specifically identify anything any of the defendants was alleged to have done to support the claims); Hawkins v. Schirack , 659 F. Supp. 1, 3 (N.D. Ohio 1986) (because routine check would have disclosed no basis in fact for public official's suspected involvement in illegal contract......