Morris v. Adams-Millis Corp.
| Decision Date | 01 April 1985 |
| Docket Number | ADAMS-MILLIS,No. 82-1025,82-1025 |
| Citation | 758 F.2d 1352 |
| Parties | 36 Empl. Prac. Dec. P 35,102, 1 Fed.R.Serv.3d 1278 Laura Ann MORRIS, Plaintiff, v.CORPORATION, Defendant-Appellee, Michael T. Braswell, Attorney for Plaintiff, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael T. Braswell, Oklahoma City, Okl., for appellant.
Peter T. Van Dyke of Lytle Soule, Curlee, Harrington, Chandler & Van Dyke, Oklahoma City, Okl., for defendant-appellee.
Before HOLLOWAY, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
This is an appeal from the trial court's order denying a motion under Fed.R.Civ.P. 60(b) for relief from an earlier order which had assessed defendant's costs including attorneys' fees against plaintiff's counsel (Michael T. Braswell) personally. The court found that Mr. Braswell had acted in bad faith during the litigation. The sole issue which we must decide is whether the trial court abused its discretion in refusing to set aside its earlier order taxing costs including attorneys' fees against Mr. Braswell. We find no abuse of discretion and affirm.
Appellant Braswell represented Laura Ann Morris in an action under Title VII, 42 U.S.C. Sec. 1981 and for age discrimination. Ms. Morris is a Black woman who worked for Adams-Millis as a supervisor or assistant supervisor in its factory. She claimed that her civil rights were violated when defendant fired her after seven and one-half years of employment and replaced her with a white person. Brief of Appellant 1-2.
The Equal Employment Opportunity Commission (EEOC) issued a right to sue letter after determining that "[e]xamination of the evidence indicates that there is not reasonable cause to believe that [Ms. Morris' charge of racial discrimination was] true." Brief of Appellant, Attachment D. Ms. Morris still wanted to pursue her claim, and after a request by her, the EEOC referred Ms. Morris to Mr. Braswell.
Mr. Braswell filed a complaint in January 1980 against Adams-Millis Corporation, alleging that Ms. Morris was removed from employment with Adams-Millis "for reasons based solely upon her race and age." I R. 2. 1 Discovery followed. Plaintiff submitted interrogatories that defendant maintains were "form book" interrogatories. Brief of Appellee 2. Defendant says that it responded to some of plaintiff's inquiries, objected to others, and "gave partial responses for others based on its assessment of what was relevant." Brief of Appellee 2. There is no indication in the record that plaintiff sought any further discovery. Defendant also submitted interrogatories to plaintiff, and plaintiff answered all but one interrogatory. I R. 58-64. 2
Defendant wanted to take the deposition of James H. Colling who was the Employee Relations Manager of Adams-Millis during plaintiff's employment there. II R. 4. The deposition was taken in Texas. Mr. Braswell did not attend, and plaintiff was not represented at the deposition. Whether Mr. Braswell advised defendant that he would not be present is unclear. Mr. Braswell states in his brief that he "notified defendant's counsel that [he] would go to Texas for the deposition." Brief of Appellant 4. However, at the beginning of Mr. Colling's deposition, defendant's counsel stated that he had a discussion with Mr. Braswell during which Mr. Braswell indicated that he would not be present at the deposition. II R. 3-4. 3
In April of 1981, defendant moved for summary judgment. On May 5 the district court entered an order directing movant to file a supplemental memorandum within ten days. I R. 140. The order gave parties opposing the motion 20 days from the date on which the supplemental memorandum was filed to file a memorandum in opposition. I R. 140.
On July 17, 1981 the trial court granted defendant's motion for summary judgment. I R. 147. The court reasoned that defendant had supported its motion with affidavits and other materials to establish that there was no genuine issue of material fact. Conversely, plaintiff's counsel, Mr. Braswell, had failed to respond in opposition to the motion for summary judgment; nor had he requested a continuance for the purpose of obtaining supporting affidavits. The court believed that there was no issue of material fact, and in addition that defendant had conclusively established that it was entitled to judgment in its favor as a matter of law. I R. 147. No issue is directly before us concerning the summary judgment as we explain below.
Following entry of the summary judgment, defendant submitted a bill of costs totalling $125.00. Mr. Braswell objected to the bill of costs, apparently taking the position that defendant was not entitled to them because the court in its summary judgment order did not state that it was awarding costs to defendant. I R. 152. Defendant later moved "for the allowance of reasonable attorneys' fees to be taxed as costs against plaintiff, and further that attorneys' fees and costs be taxed against Michael T. Braswell." I R. 153.
On August 27, 1981 the trial court entered an order directing plaintiff and her attorney to respond within ten days to defendant's motion to tax attorneys' fees. I R. 163. Plaintiff and her attorney failed to respond to the motion. On October 25, the trial court entered an order taxing defendant's costs including attorneys' fees against Mr. Braswell.
The trial court found that Mr. Braswell "failed to present any opposition to either the defendant's Motion for Summary Judgment or the motion [to tax attorneys' fees]." I R. 167. Defendant's factual assertions in its motion to tax attorneys' fees were taken as true because plaintiff did not dispute or challenge them. Moreover, the court believed that defendant's summary judgment motion "clearly established" that plaintiff's action was commenced "without sufficient grounds" to support the claim.
As to Mr. Braswell's conduct throughout the litigation, the court noted that the facts recited by defendant indicated that Mr. Braswell failed to represent properly plaintiff's interests at the Colling deposition. The district court found that Mr. Braswell had "conducted himself in bad faith by commencing this action without sufficient legal basis, continuing to prosecute the action when it became clear that no such grounds for prosecution would develop, and essentially abandoning his client's cause when it became clear to him that the defendant would not respond with a nuisance value settlement of sufficient magnitude to justify his further involvement." I R. 167. On the basis of these findings and 28 U.S.C. Sec. 1927, the court concluded that defendant's attorneys' fees in the amount of $4,700 were to be taxed as costs, and that all of defendant's costs were to be assessed against plaintiff's counsel personally. I R. 167.
In December 1981, some two months after the entry of the order granting defendant's motion for attorneys' fees, Mr. Braswell filed a motion pursuant to Fed.R.Civ.P. 60(b) for relief from that order. I R. 169. The district court denied the motion on December 21, 1981. I R. 194. The court reasoned that its action in assessing costs and attorneys' fees against Mr. Braswell personally was not "undertaken lightly," but only after a finding of bad faith and Mr. Braswell's failure to respond to the motion for attorneys' fees when he had been directed to so respond. I R. 194-95.
On appeal, appellant's arguments are that the district court erred in assessing the costs and attorneys' fee against him personally, that the order sets an unsound precedent, that it is not supported by the authorities and should be reversed. At one point in his brief, counsel in effect asserts that the district court's decision would require that counsel for plaintiff accept a settlement offer tendered by a defendant, although the final decision rests with the client. Brief of Appellant 5. Mr. Braswell also argues that to permit this order to stand would be a signal to the public that discrimination suits are not viewed favorably and that any attorney who handles such cases should be concerned. Brief of Appellant 6-7. Finally, Mr. Braswell contends that 28 U.S.C. Sec. 1927, cited by the district court, did not give that court the authority to tax attorneys' fees against counsel personally. Brief of Appellant 9, 7. 4
From the arguments outlined above, it appears that Mr. Braswell is attempting to appeal the merits of the district court's October 2, 1981 order assessing defendant's costs, including attorneys' fees, against him personally. However, no notice of appeal from that order was filed. A timely notice of appeal is mandatory and jurisdictional. See, e.g., Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Averitt v. Southland Motor Inn of Oklahoma, 720 F.2d 1178, 1180 (10th Cir.1983); Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270 (1974). The only notice of appeal which is before us states that the appeal is taken from the December 21, 1981 order which denied the Rule 60(b) motion. I R. 197. 5
The Rule 60(b) motion filed in the district court referred only to Rule 60(b) generally. I R. 169. In his brief on appeal Mr. Braswell does not discuss Rule 60(b). As noted, he argues essentially that the district court's order assessing costs including attorneys' fees was in error. The most favorable consideration which can be given to the appellant's arguments is to treat them as made under Rule 60(b)(1) or 60(b)(6). 6
Rule 60(b)(1) permits a court to relieve a...
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