Perry v. Orange County
| Decision Date | 27 August 2004 |
| Docket Number | No. 6:01-CV-208ORL22KRS.,6:01-CV-208ORL22KRS. |
| Citation | 341 F.Supp.2d 1197 |
| Parties | Booker PERRY, James Jackson, Stacy McLean, Terry Hawkins, Robson Suarez, and Juan Baquero, Plaintiffs, v. ORANGE COUNTY and Orange County Professional Fire Fighters Local 2057, International Association of Fire Fighters, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Thomas J. Pilacek, Thomas J. Pilacek & Associates, Winter Springs, FL, for Plaintiffs.
Kevin W. Shaughnessy, Akerman Senterfitt, Orlando, FL, for Orange County.
Joseph Egan, Jr., Egan, Lev & Siwica, P.A., Orlando, FL, for Local 2057.
This cause comes before the Court for consideration of Magistrate Judge James G. Glazebrook's Report and Recommendation ("R & R") (Doc. 190), filed on May 6, 2004. Therein, Judge Glazebrook recommends that all but one of the Plaintiffs be ordered to pay Defendant Orange County $177,071.00 in attorneys' fees, paralegal fees and expert witness costs,1 and that all Plaintiffs be required to pay Defendant Orange County Professional Fire Fighters, Local 2057, $93,743.50 in attorneys' fees. Judge Glazebrook further recommends denial of Orange County's motion for sanctions against Plaintiffs' counsel pursuant to 28 U.S.C. § 1927 and the Court's inherent power.
After initially reviewing the R & R, the Court issued an Order (Doc. 202) requiring Plaintiffs' current and former attorneys to show cause why they should not be sanctioned pursuant to Fed.R.Civ.P. 11 for conduct specified in the Order. Counsel have filed their Response (Doc. 208) to the show-cause order, as well as supporting affidavits.
After carefully examining the R & R, Plaintiffs' objections thereto, the Defendants' responses to those objections, and the remainder of the record, the Court agrees entirely with the analysis set forth in Magistrate Judge Glazebrook's detailed and comprehensive R & R, including his bottom-line conclusion that "[t]his case is so lacking in arguable merit as to be groundless or without foundation." Doc. 190 at 19. The Plaintiffs' objections to the R & R are without merit. Accordingly, the Defendants are entitled to the monetary awards specified in the R & R.
Additionally, the Court has carefully reviewed the Plaintiffs' attorneys' response to the show cause order, their detailed affidavits, and the attachments to those affidavits, for the purpose of determining whether Rule 11 sanctions should be imposed against them, personally. In conducting this inquiry, the Court is mindful that because no "safe harbor" correction opportunity exists when a court-initiates Rule 11 sanctions proceedings, it must apply "a higher standard ... than in the case of party-initiated sanctions." Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir.2003). Specifically, sanctions cannot be imposed in these circumstances unless counsel has engaged in conduct "akin to contempt." Id. at 1255-56. This standard is not satisfied in the present case. While some of Plaintiffs' counsel's positions and decisions were certainly ill-considered, they do not rise to the level of conduct tantamount to contempt. In any event, based on the language of Rule 11(c)(2), it appears the Court could not require the attorneys to share responsibility for the payment of the Defendants' fees and expenses even if the Court found a violation of the Rule, since sanctions imposed in the absence of a motion appear to be limited to "directives of a nonmonetary nature" or "an order to pay a penalty into court." Fed.R.Civ.P. 11(c)(2); see also Nuwesra v. Merrill Lynch, Fenner & Smith, Inc., 174 F.3d 87, 94 (2nd Cir.1999) ().
Hence, although the Court believes notions of fairness require Plaintiffs' counsel to share responsibility for at least some of the reimbursement their clients must now make to the Defendants, Rule 11 does not empower the Court to enter an order accomplishing that objective.
Based on the foregoing, it is ORDERED as follows:
1. The Magistrate Judge's Report and Recommendation (Doc. 190), filed May 6, 2004, is APPROVED AND ADOPTED.
2. The Plaintiffs' Objections to the Report and Recommendation of the Magistrate Judge Regarding Attorneys' Fees (Doc. 194), filed May 21, 2004, are OVERRULED.
3. Defendant Orange County's Renewed Motion for Attorney's Fees and for Sanctions (Doc. 173), filed January 27, 2004, is GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED insofar as it seeks an award of attorneys' fees, paralegal fees and expert witness costs against all Plaintiffs except James Jackson.
The Motion is DENIED insofar as it seeks an award against Plaintiffs' counsel.
4. Defendant Local 2057's Renewed Motion for Attorney's Fees and Costs (Doc. 170), filed January 20, 2004, is GRANTED.
5. The Clerk shall enter a judgment providing as follows:
Plaintiffs Booker Perry, Stacy McLean, Terry Hawkins, Robson Suarez and Juan Baquero, jointly and severally, shall pay to Defendant Orange County, Florida the sum of $177,071.00 in attorneys' fees, paralegal fees, and expert witness costs; and
Plaintiffs Booker Perry, James Jackson, Stacy McLean, Terry Hawkins, Robert Suarez and Juan Baquero, jointly and severally, shall pay to Defendant Orange County Professional Fire Fighters Local 2057, International Association of Fire Fighters, the sum of $93,743.50 in attorneys' fees.
This cause came on for hearing on February 26, 2004 on the following motions:
THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.
MOTION: DEFENDANT, LOCAL 2057'S, AMENDED RENEWED
MOTION FOR ATTORNEY'S FEES AND COSTS (Doc. No. 175)
FILED: January 29, 2004
THEREON it is RECOMMENDED that the motion be GRANTED.
On February 15, 2001, plaintiffs commenced this action against defendants Orange County and Orange County Professional Fire Fighters Local 2057 (the "Union") for employment discrimination pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e) et seq. Plaintiffs' four-count complaint alleged (Count I) disparate treatment in violation of Sec.1981; (Count II) disparate treatment pursuant to Title VII; (Count III) disparate impact in contravention of Title VII; and (Count IV) retaliation under Title VII. Doc. No. 1. The allegations in the complaint arise out of a promotional exam ("lieutenant's exam") administered in 1999 for the position of Operations/Fire Lieutenant.
On September 4, 2002, the Honorable Anne C. Conway granted defendants' motions for summary judgment as to all counts not previously dismissed.1 Doc. No. 129. The Clerk entered judgment in favor of the defendants and directed that they shall recover their costs. Docket No. 130. The United States Court of Appeals for the Eleventh Circuit subsequently affirmed the Court's decision in its entirety. Docket No. 168.
Orange County seeks to recover its attorneys' fees and expert fees from the plaintiffs and their counsel under 42 U.S.C. § 2000e-5(k), 28 U.S.C. § 1927, and this Court's inherent power. The Union seeks attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988. For the reasons detailed below, the undersigned RECOMMENDS that Orange County's motion [Docket No. 173] for attorneys' fees and sanctions be GRANTED in part and DENIED in part, and that the Union's motion for attorneys' fees and costs [Docket No. 175] be GRANTED.
The United States Congress has determined that a court, in its discretion, may award reasonable attorneys' fees, including expert fees, under Title VII and under § 1988 to a prevailing party as part of its costs. See 42 U.S.C. § 2000e-5 (k); 42 U.S.C. § 1988(b); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416, 421 — 22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Entitlement to attorneys' fees by a prevailing party under Title VII is governed by the United States Code, which provides:
In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
42 U.S.C. § 2000e-5 (k) (emphasis supplied). Similarly, § 1988(b) provides in relevant part:
In any action or proceeding to enforce ... [42 U.S.C. § 1983] ... the court, in its discretion, may allow the prevailing party ..., a reasonable attorney's fee as part of the costs.
42 U.S.C. § 1988(b). Congress specifically drew the language of § 1988(b) from preexisting fee provisions like those in Title VII (i.e., § 2000e-5(k)). Congress intended that the standards for awarding fees under § 1988 be the same as those under the fee provisions of the 1964 Civil Rights Act. Thus, courts interpret § 2000 e-5(k) and § 1988(b) in tandem when addressing the propriety of awarding attorney fees to a prevailing civil rights party.
The attorneys' fee statutory provisions, however, are not self-executing. The statutes do not inform the judge as to what factors are relevant to the exercise of his discretion or as to what standards to apply. Given the numerous ways in which litigation can come to an ultimate conclusion, the statutes also do not provide the judge with guidance about when a party should be considered a "prevailing party." Congress left these difficult issues for judicial interpretation.
Congress has employed the legal term of art "prevailing party" in numerous statutes authorizing awards of attorneys'...
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