Rice v. Valmont Indus., Inc.
| Decision Date | 17 June 2013 |
| Docket Number | Case No. 12–CV–602–GKF–TLW. |
| Citation | 951 F.Supp.2d 1250 |
| Parties | Rodney Henry RICE, Jr., Plaintiff, v. VALMONT INDUSTRIES, INC., a foreign corporation, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
OPINION TEXT STARTS HERE
David Ray Blades, Shook & Johnson PLLC, Tulsa, OK, for Plaintiff.
David Eugene Strecker, Jessica Victoria Hunt, Strecker & Assoc., PC, Tulsa, OK, for Defendant.
Before the court is the Motion for Attorney Fees [Dkt. # 16] of defendant Valmont Industries, Inc. (“Valmont”) and the Report and Recommendation of Magistrate Judge T. Lane Wilson [Dkt. # 31] on the motion. Magistrate Judge Wilson recommended that Valmont be awarded $12,586.12 in attorney fees. [Dkt. # 31 at 12]. Plaintiff, Rodney Henry Rice, Jr. (“Rice”), filed an Objection to the Report and Recommendation. [Dkt. # 31].
The district court must conduct a de novo review of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1); Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996) ( ). The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
A party wishing to object to a magistrate judge's report and recommendation must, within 14 days, file “specific written objections” to the report and recommendation. Fed.R.Civ.P. 72(b)(2). The Tenth Circuit has adopted a “firm waiver rule” which provides that the failure to make timely objections to the magistrate judge's findings or recommendations waives appellate review of both factual and legal questions. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). The Tenth Circuit has also held that “because only an objection that is sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute .... a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir.1996). Thus, “[a] general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review.” Brooker v. Gould, 2012 WL 6949023 (D.Colo.2012).
Rice sued Valmont, his former employer, in Tulsa County District Court on October 28, 2011, alleging Valmont had violated the Oklahoma State Workplace and Drug and Alcohol Testing Act (the “Workplace Act”), 40 O.S. §§ 554, 555, 558 and 563. Valmont removed the case to federal court based on diversity jurisdiction and subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [Case No. 11–CV–724–GKF–TLW, Dkt. 2, 8]. The court, sua sponte, remanded the case to state court because Valmont, in its Notice of Removal, failed to affirmatively allege jurisdictional facts supporting its allegation that the amount in controversy was in excess of $75,000. [ Id., Dkt. # 16].
Valmont's motion to dismiss was granted by the state court district judge. Thereafter Rice, with leave of court, filed an amended petition,1 and Valmont filed another motion to dismiss. Valmont subsequently removed the case to federal court again on October 26, 2012. In its Notice of Removal, Valmont once again asserted the amount in controversy exceeded $75,000, but supported the assertion with an affidavit from its human resources manager and plaintiff's responses to discovery requests.
The court retained the case and granted Valmont's Motion to Dismiss on October 31, 2012, finding plaintiff had failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). [Dkt. # 11]. The court stated, in pertinent part:
Although the Amended Petition makes the conclusory allegation that plaintiff “was aggrieved by the employer's alleged violations of the [Workplace Act], the mostly contradictory and confusing factual allegations fail to identify how plaintiff was aggrieved. Plaintiff alleges that he was terminated for “supposedly failing the drug test,” the employer did not have a written drug and alcohol [policy], the [testing procedure] was not random, and the employer failed to contract with a properly licensed facility to perform the testing. However, he also alleges the specimen he provided was never tested. At best, the facts alleged in the Amended Petition state a claim for wrongful termination. They do not, however, state a cognizable claim under [the Workplace Act].
Additionally, a private right of action exists only for willful violations of [the Workplace Act.] The Amended Petition lacks even a conclusory allegation that the alleged violations of [the Workplace Act] were willful, intentional or made with deliberate disregard for the requirements of [the Workplace Act], nor does it allege facts supporting such a conclusion.
[ Id. at 3–4].
Subsequently, Valmont filed its motion for attorney fees, citing the Workplace Act, 40 O.S. § 563(B), and 28 U.S.C. § 1447(c).2 The Magistrate Judge, in his Report and Recommendation, rejected Valmont's argument that it was entitled to attorney fees under 28 U.S.C. § 1447(c). However, he found that attorney fees were awardable under the Workplace Act, which provides that “[r]easonable costs and attorney fees may be awarded to the prevailing party, whether plaintiff or defendant.” 40 O.S. § 563(B). He concluded that under § 563(B), the decision of whether to award attorney fees was left “to the sound discretion of the trial court,” and that here, an award of attorney fees is proper in light of the procedural history of the case. [Dkt. # 31 at 9]. 3
Although Valmont sought attorney fees for the entire amount accrued as a result of the litigation, at the hearing before the Magistrate Judge, counsel for Valmont agreed to limit Valmont's fee request to those fees incurred after plaintiff amended his petition (from July 20, 2012, through October 31, 2012, the date the court dismissed Rice's amended petition). [Dkt. # 27, Minutes of Hearing]. The Magistrate Judge found this period, during which requested fees totaled $13,154.00, to be reasonable. The Magistrate Judge recommended a reduction of 25 percent in three time entries to account for impermissible block billing, for a total recommended attorney fee award to $12,586.12.
In his Objection, Rice argued that Valmont is not entitled to an award of attorney fees, but stipulated he “does not object to the amount of fees as calculated by the court.” [Dkt. # 32 at 4].
Rice objects to the Magistrate Judge's finding that Valmont is entitled to recover attorney fees under 40 O.S. § 563(B). Although his objection is not a model of clarity, he appears to argue that the magistrate judge erred in applying a “discretion of the court” standard rather than the dual standard applied in civil rights actions such as Title VII, i.e., liberal awards for prevailing plaintiffs and limited awards for prevailing defendants.4
Under the Workplace Act, “[r]easonable costs and attorney fees may be awarded to the prevailing party, whether plaintiff or defendant.” 40 O.S. § 563(B) (emphasis added). The parties agree the statute is permissive rather than mandatory. The issue before the court is what standard should be used to determine whether to award attorney fees. There is no Oklahoma authority directly on point, so the court must predict how the Oklahoma Supreme Court would resolve the issue. See Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 899 (10th Cir.2006).
Rice argues the Workplace Act is analogous to federal civil rights statutes such as Title VII 5 and, therefore, the court should apply the dual standard.
The dual standard was articulated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). There, the court acknowledged it was well established that under Title VII that “a prevailing plaintiff ordinarily is to be awarded attorney's fees in all but special circumstances.” Id. at 417, 98 S.Ct. 694. At issue was what standard should apply to attorney fee requests by prevailing defendants. The employer urged application of an identical standard for defendants. Plaintiff argued a prevailing defendant should be awarded fees only in a situation where the plaintiff was motivated by bad faith in bringing the action. The court rejected both positions and staked a middle ground, holding that a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Id. at 421, 98 S.Ct. 694. In explaining its rationale, the court stated:
[T]here are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.”
First, ... the plaintiff is the chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.... [T]hese policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.
Id. at 418–419, 98 S.Ct. 694 (quotations and citations omitted). The court found the legislative history indicated “that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual...
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