Opinion
1:06-cv-0544-RLY-TAB.
July 3, 2008
ENTRY ON DEFENDANT'S MOTION FOR COSTS and DEFENDANT'S MOTION FOR PARTIAL PAYMENT OF FEES
On September 27, 2007, the court granted the Motion for Summary Judgment filed by the defendant, Raybestos Products Company ("Raybestos"). Raybestos, as the prevailing party, now seeks costs in the amount of $4,359.48, partial payment of its attorney's fees from Plaintiff in the amount of $11,490.30, and sanctions against her attorney in the amount of $5,400. For the reasons explained below, the court DENIES both motions.
I. Background
While under the employ of Raybestos, Plaintiff had long-term problems with migraine headaches and high blood pressure. She therefore sought, and was approved for, intermittent leave under the Family and Medical Leave Act ("FMLA"). She was eventually terminated on October 7, 2005, for violating the terms of her collective bargaining agreement; specifically, for working for profit while on approved FMLA leave.
On April 5, 2007, Plaintiff filed a Complaint in this matter asserting claims under the FMLA, 29 U.S.C. § 2601 et seq., and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Plaintiff's FMLA claims included the following: (1) a claim for reinstatement and (2) a claim that Raybestos unlawfully contacted her health care provider, Dr. Hussain. (Complaint ¶¶ 29-30).
29 C.F.R. § 825.307(a) provides, "If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider."
On April 18, 2007, Raybestos deposed Dr. Hussain; Dr. Hussain's nurse, Kimberly Miller ("Nurse Miller"); and a member of Dr. Hussain's office staff, Lisa Blackford ("Ms. Blackford"). Nurse Miller and Ms. Blackford confirmed that Plaintiff, and not Raybestos, contacted Dr. Hussain's office on October 7, 2005, for a note confirming Plaintiff's absence from work and the reasons therefor. (See Deposition of Kimberly Miller at 17, Defendant's Ex. 5 to Motion for Partial Payment of Fees; Deposition of Lisa Blackford at 15-16, Plaintiff's Ex. J to Plaintiff's Response to Defendant's Motion for Summary Judgment). Dr. Hussain added nothing to the discussion as she testified that she had no personal knowledge concerning who contacted her office. (See Deposition of Amber Hussain at 64, Defendant's Ex. 4 to Motion for Partial Payment of Fees). The following week, Raybestos' counsel wrote a letter to Plaintiff's counsel, accusing Plaintiff of engaging in bad faith by pursuing her FMLA claims, particularly her claim that Raybestos unlawfully contacted Dr. Hussain. Raybestos requested that Plaintiff dismiss her claims.
Raybestos' request apparently went unnoticed, for on June 6, 2007, Raybestos filed a Motion for Summary Judgment. In Plaintiff's Response, Plaintiff did not address her claim that Raybestos unlawfully contacted her health care provider. In fact, in her statement of facts, she included the factual allegation that she contacted Dr. Hussain's office to ask if her office would fax a note certifying Plaintiff's absence from her October 7 shift, citing Ms. Blackford's deposition as support. (Plaintiff's Response at 7).
Following the court's September 27, 2007, Entry granting Raybestos' Motion for Summary Judgment, Raybestos filed the instant Motion for Partial Payment of Fees and a Bill of Costs.
II. Motion for Partial Payment of Fees
A. Motion for Partial Payment of Fees Against Plaintiff
Raybestos seeks partial payment of its attorney's fees against Plaintiff pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure and under its inherent power to award sanctions. Raybstos claims entitlement to these fees on grounds that Plaintiff's "primary allegation" that Raybestos unlawfully contacted Dr. Hussain was false; that Plaintiff knew this allegation was false at the time she filed her Complaint; and that she unreasonably continued to pursue this claim until Raybestos filed its summary judgment motion. In short, Raybestos' claim is based upon its perception that Plaintiff filed her claim in bad faith.
The court is of the opinion that Rule 54(d)(2) does not apply to Raybestos' motion. Rule 54(d)(2)(E) specifically provides, " Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927."
The general rule in the United States is that a party must pay her own attorney's fees. McCandless v. Great Atlantic and Pacific Tea Co., Inc., 697 F.2d 198, 200 (7th Cir. 1983). The court has inherent authority, however, to award attorney's fees to the prevailing party where it finds that the opposing party "`has acted in bad faith, vexatiously, wantonly or for oppressive reasons.'" Id. (quoting F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1974)); Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 259-60 (1975). The "bad faith" exception is a punitive measure and should be used against the losing party only when that party "[is] aware that [her] claim is baseless but press[es] on for some improper reason. . . . " McCandless, 697 F.2d at 201.
Plaintiff's April 5, 2006, Complaint alleged that "Defendant violated the FMLA by contacting Plaintiff's health care provider [on October 7, 2005]." (Complaint ¶ 29). The April 18, 2007, depositions of Nurse Miller, and Ms. Blackford revealed that Raybestos did not call the office; Plaintiff did. A week later, Raybestos requested that Plaintiff drop her claims. Raybestos filed its motion for summary judgment on June 6, 2007.
Given these facts, Raybestos' claim that it was forced to incur unnecessary legal expenses defending itself against her baseless claim is without merit. A mere six weeks passed between the time it took the depositions of Dr. Hussain and her staff, and the filing of its summary judgment motion. In Plaintiff's Response, she did not respond to the argument, and advanced as a material fact that she contacted Dr. Hussain's office on October 7, 2007. See Plaintiff's Response at 7, Fact # 35 ("[A]ccording to the records of the office of Dr. Hussain, [Plaintiff] requested a note from Dr. Hussain to certify her absence from the October 7, 2007 `work day.'"). At most, the evidence in this case shows that Plaintiff was mistaken when she alleged that Raybestos contacted Dr. Hussain. The evidence most certainly does not scream of bad faith which would justify an award of sanctions. Raybestos' motion for partial payment of attorney's fees against Plaintiff is therefore DENIED.
B. Motion for Partial Payment of Fees Against Plaintiff's Attorney
Raybestos seeks partial payment of its attorney's fees against Plaintiff's attorney, Ronald Weldy ("Mr. Weldy), under 28 U.S.C. § 1927. Section 1927 provides: "Any attorney . . . 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. "The purpose of section 1927 is to deter unnecessary delays in litigation occasioned by the dilatory litigation practices of attorneys." Cronshaw v. Philips Medical Sys., Inc., 1995 WL 22877, at *3 (N.D.Ill. Jan. 13, 1995) (citing H.Rep. 1234, 96th Cong., 2d Sess. 8-9 (1980), reprinted in 1980 U.S.C.C.A.N. at 2781)). Such sanctions are proper against an attorney "where that attorney has acted in an objectively unreasonable manner by engaging in a serious and studied disregard for the orderly process of justice, or where a claim [is] without a plausible legal or factual basis and lacking in justification." Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir. 1988) (internal quotations and citations omitted); see also The Jolly Group, Ltd. v. Medline Indust., Inc., 435 F.3d 717, 720 (7th Cir. 2006).
Raybestos claims that Mr. Weldy had a duty to dismiss Plaintiff's claim (that Raybestos contacted Dr. Hussain) following the depositions on April 18, 2007, and that his failure to do so resulted in Raybestos unnecessarily spending nearly $5,400 in fees defending itself against the claim on summary judgment. The court finds that Raybestos' argument goes too far. As noted earlier in this opinion, Raybestos promptly filed a motion for summary judgment following the depositions of Dr. Hussain and her staff on April 18, 2006. Raybestos devoted one page of argument to her claim that Raybestos unlawfully contacted Dr. Hussain, to which Plaintiff mounted no response. Thus, Raybestos' claim that it incurred thousands of dollars in attorney hours litigating a baseless claim is without merit. There is no evidence of bad faith on the part of Mr. Weldy, nor evidence that Mr. Weldy vexatiously prolonged the litigation in this case. Raybestos' motion for attorney's fees under Section 1927 is therefore DENIED.
III. Bill of Costs
Raybestos, as the prevailing party in this case, moves for the taxation of costs against Plaintiff in the amount of $4,359.48. Plaintiff asks the court to waive these costs on grounds of indigency.
In order to invoke the indigency exception, the "court must make a threshold factual finding that the losing party is `incapable of paying the court-imposed costs at this time or in the future.'" See Rivera v. City of Chicago, 469 F.3d 631, 635 (7th Cir. 2006) (quoting McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)). The burden is on the losing party to establish, by documentary evidence in the form of an affidavit or otherwise, that she is unable to pay such costs. Id. In addition, "the court should consider the amount of costs, the good faith of the losing party, and the closeness and difficulty of the issues raised by a case. . . ." Id.
Since the filing of Raybestos' bill of costs, Plaintiff sought, and the court granted, her leave to file her appeal in forma pauperis. ( See Docket ## 70, 80). In support thereof, Plaintiff filed a verified affidavit dated October 26, 2007, stating that her gross monthly income was $1,250.00, and her checking and savings account held a combined total of $205.00. (See Docket # 80). Given her financial condition, the court finds that Plaintiff, as the losing party, has satisfied the threshold inquiry that she is unable to pay costs in this matter. The court now turns to the second step in this inquiry — the amount of the costs, the good faith of Plaintiff, and the closeness and difficulty of the legal issues presented.
The costs sought by Raybestos total approximately one-third of Plaintiff's gross income. Thus, while $4,300 is not a substantial figure to a company like Raybestos, it certainly is to Plaintiff. The court also finds that although Plaintiff eventually conceded some of her claims on summary judgment, Plaintiff commenced this litigation and pursued this litigation in good faith. There is nothing in the record to suggest otherwise. Finally, with respect to the third element — the closeness and difficulty of the issues raised by Plaintiff — the principal argument raised by Plaintiff was that she was not on intermittent FMLA leave on the morning of October 7, 2007. Raybestos refuted Plaintiff's allegation by presenting evidence that at the time in question, she was at New Richmond Cemetery performing lawnmowing duties for her husband's business. The court did not determine whether or not she was actually on FMLA leave at that time, instead finding that the dispositive inquiry was whether Raybestos held an honest suspicion that Plaintiff was abusing her leave. The court found that Raybestos carried its burden in that regard, and that as such, Plaintiff's FMLA claim failed as a matter of law. Accordingly, the court finds, in its discretion, that Plaintiff's FMLA failure to reinstate claim was sufficiently close to warrant a denial of costs in this matter. Plaintiff therefore satisfies the elements necessary for the court to properly exercise its discretion to deny costs to Raybestos as the prevailing party. Raybestos' Motion for Costs is therefore DENIED.
IV. Conclusion
SO ORDERED
DENIED.