Opinion
Case No. 5:02-CV-60
October 20, 2003
J. Michael O'Briant, for Plaintiff
S. Randall Field, for Defendant
OPINION
The Court has before it Defendant's motion for prevailing party costs and attorney fees. On May 30, 2003, the Court issued an Opinion and Order granting Defendant's motion for summary judgment on Plaintiff's failure to accommodate claim under the Americans With Disabilities Act, ("ADA"), 42 U.S.C. § 12101 to 12213. In the instant motion, Defendant contends that it is a prevailing party and is therefore entitled to costs and attorney fees pursuant to 42 U.S.C. § 1988. Defendant contends that the Court may award fees under § 1988 because Plaintiff brought this action under 42 U.S.C. § 1983. (Def.'s Br. Supp. at 2 n. 2.) Defendant is incorrect, because the only claim Plaintiff asserted in this case was her claim under the ADA. Section 1988 cannot serve as the basis for an award of attorney fees in this case because the ADA is not included in the list of statutes to which § 1988 applies. 42 U.S.C. § 1988(b); see also Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003) (stating that " § 1988 provides a list of the statutes to which its attorney's fee provision applies, and neither the ADA nor the [Rehabilitation Act] is on the list"); Caruthers v. Proctor Gamble Mfg. Co., 177 F.R.D. 667, 668 n. 1 (D. Kan. 1998) ("The ADA is not one of the statutes embraced by the fee-shifting provision in 42 U.S.C. § 1988(b).").
The ADA contains its own attorney fee provision, which provides that a court, in its discretion, "may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs. . . ." 42 U.S.C. § 12205. Courts applying this provision have determined that it should be interpreted in a manner consistent with § 1988. Ritter v. Clinton House Rest., 64 F. Supp.2d 374, 387-88 (D.N.J. 1999); Webb v. James, 967 F. Supp. 320, 322 (N.D. Ill. 1997).
Although Defendant may be considered a prevailing party under both 42 U.S.C. § 1988 and 42 U.S.C. § 12205, awards to prevailing defendants under § 1988 are governed by a different standard than awards to prevailing plaintiffs. Courts routinely award attorney fees to prevailing plaintiffs, whereas prevailing defendants will be awarded attorney fees in only the most extreme and egregious cases of misconduct. See Roane v. City of Mansfield, No. 98-4560, 2000 WL 1276745, at *1 (6th Cir. Aug. 28, 2000) (reversing the district court's award of fees to the defendant because the plaintiff's claim did not appear to be frivolous or unreasonable). The standard for fee awards to prevailing defendants is difficult to meet. Attorney fees may be awarded to prevailing defendants only when the plaintiff's claim "was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith."Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700 (1978). With respect to such awards, the Sixth Circuit has observed that "[a]n award of attorney's fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct." Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
The prevailing party standard for defendants enunciated inChristiansburg, a Title VII case, also governs attorney fee awards under § 1988. Hughes v. Rowe, 449 U.S. 5, 14, 101 So. Ct. 173, 178 (1980).
Defendant cites the Sixth Circuit's decision in Wilson-Simmons v. Lake County Sheriff's Department, 207 F.3d 818 (6th Cir. 2000), as support for an award of attorney fees in this case. In Wilson-Simmons, the plaintiff, a corrections officer, alleged that a co-worker told her that another co-worker had sent a racist e-mail regarding the plaintiff to another corrections officer. Id. at 821. The plaintiff complained to her supervisor but refused to identify the co-worker who had informed her about the e-mail. The plaintiff also requested to view the e-mails generated by every officer at the corrections facility for the preceding month. The plaintiff's supervisor informed the plaintiff that the e-mails were not immediately available and would need to be reconstructed. The same day, the supervisor posted a notice prohibiting racial statements in e-mails. The next day the plaintiff submitted a written request to view the e-mail of five corrections officers but was subsequently advised that the cost of reconstructing the e-mails, for which she would be responsible, would be $2,500. Id. The plaintiff filed suit alleging that the defendants discriminated against her on the basis of race because the fee to view the e-mail should have been $3.00, the price of a public record, and because the defendants failed to investigate the alleged racial slur. In addition, the plaintiff alleged several acts of retaliation. Id. The district court granted the defendants' motion for summary judgment, concluding that there was no evidence that the allegedly racist e-mail existed and the plaintiff failed to present evidence showing either that she suffered an adverse employment action or was treated worse than similarly situated, non-protected employees. Id. at 822. The defendants then moved for an award of attorney fees pursuant to § 1988, and the magistrate judge concluded that "the complete lack of substance and merit should have been so patent to Plaintiff's counsel that their failure to either advise her against pursuing the empty claims or terminate the action when its futility should have been obvious" support a fee award. Id. The district court adopted the report and recommendation, and the Sixth Circuit affirmed. The Sixth Circuit held that the district court properly concluded that the plaintiff's claims satisfied the "frivolous, unreasonable, or without foundation" standard. Id. at 823. The court of appeals observed that the plaintiff failed to present any evidence that she should have been required to pay only $3.00 rather than the $2,500 cost of reconstructing the e-mail; there was no evidence that the cost was racially-based; there was no evidence that the five co-workers the plaintiff identified were involved or that the alleged e-mail existed; the defendant took seriously and promptly investigated the plaintiff's complaint; and the retaliation claim was without factual foundation. Id. at 823-24.
The Sixth Circuit also upheld an award of attorney fees to a prevailing defendant in Yinger v. City of Dearborn, No. 96-2384, 1997 WL 735323 (6th Cir. Nov. 18, 1997) (per curiam). The plaintiff in Yinger, as in this case, alleged a claim under the ADA. The plaintiff had previously filed a complaint in federal court and a complaint in state court, both of which were dismissed. The district court held that the plaintiff's claims were barred by the doctrine of claim preclusion and were untimely. The plaintiff moved for a rehearing, which the district court heard and denied. The plaintiff then moved to amend his complaint. At the hearing on the motion to amend, the district court denied the motion and ordered the plaintiff to pay the defendants' attorney fees for bringing "a frivolous and vexatious lawsuit." Id. at *4. The Sixth Circuit held that the plaintiff's claims fell within the Christiansburg standard for an award of fees to a defendant:
In this case, plaintiff filed identical allegations in three lawsuits — such squandering of the courts' already too scarce time and resources cannot be tolerated. The attorneys' fee award was justified.
The number of lawsuits, the length and frequency of motions for rehearing, and the number of appeals, all on the same subject, exhibit bad faith by the plaintiff. In such a case, we will not consider plaintiff's ability to pay since doing so would not deter the filing of frivolous and vexatious suits. Any other holding would enable plaintiffs to make themselves judgment proof and then pursue litigation endlessly and with impunity.Id. at *5-6 (footnotes and citation omitted).
On the other hand, in Riddle v. Egensperger, 266 F.3d 542 (6th Cir. 2001), the Sixth Circuit reversed a district court's award of attorney fees because the district court and the magistrate judge "engaged in hindsight logic." Id. at 551. The court noted that the defendants did not file motions to dismiss for failure to state a claim and the district court dismissed the case only after discovery had been completed and the parties had filed briefs on the defendants' motion for summary judgment. The court made clear that under such circumstances, attorney fees may not be awarded simply because the defendants prevail on a summary judgment motion:
A plaintiff who continues to litigate claims after discovery has concluded, proceeds to summary judgment, and a judge thereafter rules that the claims are without merit, does not necessarily support the conclusion that the plaintiff's claims were frivolous, unreasonable, or groundless, especially if there are viable claims intertwined to the meritless claims. Even though the claims after discovery are found to be without merit by a court, such a finding does not equate with a determination that the claims were without foundation when the complaint was initially filed. Although the District Court found that there was no evidence to support some of Riddle's claims, the District Court noted that discovery was "necessary" to evaluate Plaintiff's extensive complaint and to prepare the filings "necessary" to "obtain" summary judgment. If the underlying claims and Appellants' actions were frivolous, Defendants could have used Rule 12(b)(6) to narrow the claims at the onset of the case, rather than engaging in extensive discovery in order to "obtain" summary judgment. Rule 56 is a tool to narrow the factual and legal issues to be brought to trial but does not necessarily mean that a finding not in favor of a plaintiff means that the plaintiff has no basis for filing a complaint.Id. at 551. The court concluded that the district court should not have awarded fees because the plaintiff's claims were interrelated to his Fourth Amendment claim, which the district court and the magistrate judge both found to be viable. Id. at 551-53.
Although this Court granted summary judgment to Defendant on the alternative bases that Plaintiff was not disabled under the ADA and that Defendant made a reasonable accommodation, Plaintiff's complaint was neither an egregious case of misconduct nor frivolous or groundless. The Court finds the instant case distinguishable from Wilson-Simmons because here there was at least some factual basis for Plaintiff's claim. That is, Plaintiff alleged that she suffers from fibromyalgia and that she requested a reclining chair as an accommodation. In moving for summary judgment, Defendant argued that Plaintiff was not disabled under the ADA and that Defendant reasonably accommodated Plaintiff. Defendant did not argue, and the Court did not find, that fibromyalgia could not support a disability under the ADA. Rather, the Court held that the evidence failed to show that Plaintiff's physical impairment was so severe as to render Plaintiff disabled. Moreover, Plaintiff supported both her allegations of disability and request for an accommodation with letters from her physician recommending a reclining chair. Although the Court held that Defendant provided a reasonable accommodation without furnishing a reclining chair, the Court cannot say that Plaintiff's claim was groundless from the outset or that Plaintiff continued to litigate after it became clear that the claim was groundless. In fact, the Court finds this case to be more analogous to Riddle than to Wilson-Simmons.
In fact, Defendant argued in its brief that the chair it provided to Plaintiff was a reclining-type chair similar to the chair described by Plaintiff's physician. However, there was no evidence to support this assertion, because Plaintiff testified that in order to make the chair recline, the user was required to hold it back in the reclining position, which could have been worse for Plaintiff's condition.
Defendant also cites 28 U.S.C. § 1927 as a basis for an award of fees against Plaintiff. It is unnecessary for the Court to address the applicability of § 1927 as a basis for an award of attorney fees because Defendant has not presented any argument on this issue. However, an award would not be proper under that section, which provides:
Any attorney or other person . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.28 U.S.C. § 1927. A court may impose sanctions under § 1927 "when an attorney has engaged in some sort of conduct that, from an objective standpoint, `falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'" Holmes v. City Massillon, 78 F.3d 1041, 1049 (6th Cir. 1996) (quoting Rathbun v. Warren City Sch., (In re Ruben), 825 F.2d 977, 984 (6th Cir. 1987)). While a finding of bad faith is not necessary under § 1927, see Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997), an attorney's misconduct "must amount to more than simple inadvertence or negligence that has frustrated the trial judge." Holmes, 78 F.3d at 1049. Defendant has not attempted to show that Plaintiff's counsel engaged in any conduct which meets this standard.
Although Defendant is not entitled an award of attorney fees, Defendant is entitled to costs pursuant to Fed.R.Civ.P. 54(d) as a prevailing party. Costs allowed pursuant to Rule 54(d) are set forth in 28 U.S.C. § 1920. Allowable costs include, among other things, "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case," and "[f]ees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920(2), (4). Defendant's billing statements show that Defendant is seeking reimbursement for the cost of the transcripts of Plaintiff's deposition as well as of the transcripts for the depositions of K. Christopherson and M. Phillips. Costs allowable under § 1920(2) include "the expenses of taking, transcribing, and reproducing depositions." Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). The Court concludes that the deposition transcripts were necessarily obtained and that the expenses incurred were reasonable. Therefore, $715.80 for deposition transcripts will be taxed to Plaintiff. In addition, Defendant seeks $143.60 for photocopies at the rate of twenty cents per copy. Recoverable costs under § 1920(4) include "costs for photocopying documents necessary for maintenance of the action, including copies attributable to discovery, copies of pleadings, correspondence, documents tendered to the opposing party, copies of exhibits, and documents prepared for the court's consideration." Jordan v. Vercoe, No. 91-1671, 1992 WL 96348, at *1 (6th Cir. May 7, 1992). The Court concludes that the charges are reasonable, with the exception that Defendant seeks $57.40 for a group of 287 copies and $56.00 for a group of 280 copies in connection with the motion for summary judgment. Given that either number of pages would be more than sufficient to produce four copies of the motion, brief, and exhibits, it appears that one of the charges is a duplicate charge. Therefore, Court will disallow the $56.00 charge as excessive. Thus, $87.60 will be taxed to Plaintiff for photocopy charges, for a total award of costs in the amount of $803.40.
An Order consistent with this Opinion will be entered.