Opinion
Civil Action No. 3:99CV055-B-A
May 8, 2000
MEMORANDUM OPINION
This cause is before the court on the issue of Rule 11 sanctions issued against the plaintiff in the above styled and numbered cause. Said sanctions, in the amount of attorney's fees were granted upon proper motion of the defendant, Elizabeth Vinson, and were granted sua sponte in favor of the remaining defendants. The defendants' attorneys have submitted an itemization of fees and supporting affidavits and the plaintiff has objected to the same. Upon due consideration of the itemization, affidavits, memoranda, and the record in this cause, the court is ready to rule.
1 The plaintiff filed this suit against "Elizabeth Vinson, City of Olive Branch, Mississippi, its Mayor Samuel P. Rikard, and its Board of Aldermen, George, Collins, Aubrey Coleman, Steve Dawson, Richard E. Dlugach, George Harrison, and its Police Department, its Chief of Police Jim Harris, Detective Cleatus Oliver, Scott Gentry, the Olive Branch Municipal Court de facto Judge Les Shumake; Deputy Clerk, Billy Baldwin, the de facto City of Olive Branch Mississippi Prosecutor Wallace Anderson the de facto Municipal Court Clerk Jennifer Carson and the Mississippi Municipal Liability Plan Insurance and any and all John Doe defendants and others to be joined after discovery et al." All of these defendants, except for Elizabeth Vinson, are associated with the City of Olive Branch, Mississippi. The defendants shall herein be referred to as "the Olive Branch defendants" and "Elizabeth Vinson" respectively and as "the defendants" collectively.
LAW
Under Rule 11 of the Federal Rules of Civil Procedure, the court may impose appropriate sanctions, including attorney's fees, against any party who files a frivolous action, files an action for an improper purpose, such as harassment, or files an action which is not reasonably supported by law. See Fed.R.Civ.P. 11. Sanctions awarded under Rule 11 are essentially deterrent in nature. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 345 (5th Cir. 1990). Such sanctions are imposed to discourage dilatory tactics and the maintenance of an untenable position. Id. In this matter, the court found that the imposition of sanctions was appropriate due to the plaintiff's vexatious conduct and the frivolous nature of this action. In so finding, the court was mindful of the fact that the plaintiff has proceeded pro se in this action; however, a pro se litigant, like an attorney, has responsibility under Rule 11. It now appears that the actions of the attorneys in this cause may not have risen to the standards required under Rule 11. The court, conscious of its duty to impose the least severe sanctions necessary to achieve the objectives of Rule 11, finds that despite the frivolity of the instant action and the sanctions previously awarded, the questionable nature of the defendants' attorneys' submissions to the court regarding fees has given the court pause; therefore, the court now declines to award fees as submitted by the affidavits and itemizations in this matter. See Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866 (5th Cir. 1988).
"What constitutes a `reasonable attorney's fee' within the context of Rule11 must be considered in tandem with the rule's goals of deterrence, punishment, and compensation." Thomas, 836 F.2d at 879; citing INVST Financial Group v. Chem-Nuclear Systems,
815 F.2d 391, 404 (6th Cir.), cert. denied, 484 U.S. 927, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987). In order to make a finding of "reasonableness," the court must necessarily inquire as to the extent to which the non-violating party's expenses and fees could have been avoided or were self-imposed. Id. In the instant cause, it is unclear whether the defendants' actions were entirely necessary and whether their fees were incurred in an effort to defend the complaint filed against them by Ms. Young or whether the fees may have been lessened by more efficient use of time and skill. The itemized bills submitted by the defendants' respective attorneys, Chelye Prichard of the Phelps, Dunbar law firm in Jackson for the Olive Branch defendants and Cathy Pipkin of the Greer and Pipkin law firm in Tupelo for Elizabeth Vinson, were duplicative of those filed in the case of Vinson v. Vinson, et al, cause number 3:99cv55-B-A. The questionable nature of these submissions is peculiar in that it appears on the face of the itemizations that the majority of the log entries show that the same hours have been charged to the defendants twice; once per case.
The itemizations submitted by Ms. Pipkin in this cause and in cause number 3:99cv54-B-A are identical in every respect. The itemizations submitted by Ms. Prichard in this cause and in cause number 3:99cv54-B-A are substantially similar; however, it does contain some entries and/or portions of entries which are original to one or the other case specifically.
In determining the appropriate amount of attorney's fees to award, the court applies the "lodestar" method of computation. The "lodestar" is computed multiplying the number of hours reasonably expended by the prevailing hourly rate in the community for similar work. The court then adjusts the lodestar upward or downward depending on the respective weights of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir. 1992). The twelve Johnson factors are as follows:
(1) the time and labor required;
(2) the novelty and difficulty of the questions involved;
(3) the skill required to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to the acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the "undesirability" of the case;
(11) the nature and the length of the professional relationship with the client;
(12) awards in similar cases.
Johnson, 488 F.2d at 717-719. Even though the Johnson factors must be addressed to ensure that the resulting fee is reasonable, not every factor need be necessarily considered. Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir. 1995); Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir. 1993) ("rarely are all the Johnson factors applicable . . .") (quoting Brown v. Phillips Petrol. Co., 838 F.2d 451, 456 (10th Cir. 1988)).
This case and the case of Vinson v. Vinson, et al are virtually identical. The defendants were represented by their respective attorneys in both cases and the cases proceeded along the standard case track together. Each time the a party filed a pleading in one cause, the same was filed in the other. In this case, the Olive Branch defendants seek $6,210.00 in fees based on 51.75 hours at $120.00 per hour by Ms. Prichard. Elizabeth Vinson seeks $7,620.00 in fees based on 50.8 hours at $150.00 per hour by Ms. Pipkin. The defendants have respectively submitted an itemization of fees and supporting affidavits from their attorneys. The affidavit of Chelye Prichard is supported by the affidavit of James Keith, an attorney in Jackson, Mississippi, who verified that the rates charged by Ms. Prichard are customary and reasonable. Ms. Pipkin's affidavit is not supported by any such documentation.
The plaintiff filed an objection to each attorneys' itemization and affidavit stating that the defendants' claimed amounts of fees are improper, that the defendants' attorneys' affidavits are fraudulent, and that the itemization of fees and expenses should be dismissed or a more definite statement required. However, the plaintiff provides no substantive basis for these objections or accusations of fraud. The plaintiff further objects to the duplicative billing, stating that each attorney billed the same amount in each case (this and cause number 3:99cv54-B-A) for identical actions. Neither Ms. Pipkin nor Ms. Prichard has filed a response to the plaintiff's objection to their respective itemizations and affidavits.
As stated by the plaintiff, "the dates worked, hours performed, the material covered is exactly the same between the two cases."
See plaintiff's response and objection to affidavit of Anna Catherine Pipkin, ¶ II. Upon diligent review, it appears that there is no difference in the itemizations submitted by Ms. Pipkin in each case as to the dates and hours logged and very little difference in those submitted by Ms. Prichard. The logged items that differ from the Olive Branch defendants' submissions in this case and the case of Vinson v. Vinson, et al. are as follows:
The court has distinguished differentiating portions of entries which appear substantially similar in bold .
VINSON V. VINSON, ET AL.
THIS CAUSE
5/12/99 Telephone conference with Bill Beasely re Vinson and other cases he has filed; telephone conference with city clerk re complaint .50
5/13/99 Receipt and review of complaint; telephone conference with Les Shumake re complaint; drafting of motion for time; drafting of order; letter to clerk 1.00
5/13/99 Receipt and review of complaint; drafting of motion for time; drafting of order; letter to clerk .75
6/1/99 Telephone conference with Jack re complaint being served on service company .25
7/12/99 Receipt and review of order granting plaintiff additional time to respond to Defendant Vinson's motion to dismiss .25
7/12/99 Meeting with Friedman re reassignment of case to Biggers; telephone conference with Judge Alexander's office re same; letter to clerk; edit and revise motion 1.25
8/20/99 Receipt and review of notice resetting case management conference .25
8/20/99 Receipt and review of notice resetting case management conference; telephone conference with court re conflict .50
9/10/99 Receipt and review of plaintiff's amended discovery request .25
10/27/99 Receipt and review of Plaintiff's Motion to Reconsider and Set Aside Order; receipt and review of Plaintiff's response to Reconsider Court order re Case Management Order; receipt and review of Order Denying Plaintiff's Motion to Compel 1.00
10/27/99 Receipt and review of Plaintiff's Motion to Reconsider and Set Aside Order; receipt and review of Plaintiff's response to Defendants' Motion to Amend Responses; receipt and review of Plaintiff's response to Reconsider Court order re Case Management Order; receipt and review of Order Denying Plaintiff's Motion to Compel 1.00
11/1/99 Drafting responses to requests for Admissions for the City, MMLP and Cleatus Oliver 1.00
11/29/99 Telephone Conference with Cleatus Oliver re requests for admissions; edit and revise responses 1.00
12/2/99 Factual investigation into plaintiff's claims 2.00
12/3/99 Discovery responses in Vinson case 4.00
12/3/99 Edit and revise responses to requests for admissions; telephone conference with city clerk re responses; drafting of responses to requests for admissions 2.75
12/3/99 Telephone conference with city clerk re responses; drafting of responses to requests for admissions 2.75
12/21/99 Telephone conference with plaintiff re discovery .25
1/12/00 Drafting of responses to discovery; telephone conference with Charlene re depositions; telephone conference with police department re records; telephone conference with Mayor David re 911 tapes 4.00
1/13/00 Telephone conference with City Administrator re discovery .50
1/16/00 Drafting of responses to discovery requests; edit and revise responses; receipt and review of documents from city 2.50
1/16/00 Drafting of responses to discovery requests; edit and revise responses; receipt and review of documents from city 2.75
1/20/00 Telephone conference with Scott Elzey re plaintiffs .50
1/21/00 Receipt and review of deposition subpoenas; receipt and review of information on plaintiffs from Scott Elzey; telephone conference with city clerk re trial and discovery; receipt and review of proposed settlement 1.00
1/21/00 Telephone conference with city clerk re trial and discovery; receipt and review of proposed settlement; receipt and review of information on plaintiffs from Scott Elzey 1.00
1/24/00 Telephone conference with Judge's office re depositions; telephone conference with plaintiff re depositions; telephone conference with city clerk, city manager, chief, municipal clerk, Les Shumake re depositions .75
1/24/00 Telephone conference with Judge's office re depositions; telephone conference with plaintiff re depositions; telephone conference with city clerk, city manager, chief, municipal clerk, Les Shumake re depositions; letter from Les Shumake re case .75
1/24/00 Telephone conference with plaintiff re depositions; drafting motion to quash 1.25
1/24/00 Telephone conference with plaintiff re depositions; drafting motion to quash; study and review information from Scott Elzey and Judge Biggers' Orders 1.25
1/25/00 Drafting motion for a protective order; study and review of the file re discovery procedures; letter to clerk; letter to judge; edit and revise motion; telephone conference with Jim Napper re depositions and motion; telephone conference with Charlene re motion 2.25
1/25/00 Drafting motion for a protective order; study and review of the file re discovery propounded; letter to clerk; letter to judge; edit and revise motion; telephone conference with Charlene re motion; telephone conference with Judge Alexander's office re motion 2.25
2/1/00 Telephone conference with Judy Herrington re Aldermen's depositions; telephone conference with Charlene re same .50
2/3/00 Telephone conference with Judge Herrington re depositions .25
2/4/00 Telephone conference with plaintiff re deposition; letter to plaintiff re same; edit and revise letter to plaintiff; drafting notice of deposition; letter to clerk 1.50
2/4/00 Telephone conference with plaintiff re deposition; drafting notice of deposition; letter to clerk .50
2/7/00 Telephone conference with Gary Snyder re depositions; telephone conference with Judge Herrington re depositions .50
2/8/00 Telephone conference with Harry Vinson re deposition and plaintiff's motion to extend discovery deadline; telephone conference with Judge Alexander's office re same; telephone conference with Chief Harris re depositions; telephone conference with Charlene re depositions .50
2/8/00 Telephone conference with Patty Vinson re deposition and plaintiff's motion to extend discovery deadline; .25
2/9/00 Letter to plaintiff re depositions .25
2/9/00 Telephone conference with Patty Young re depositions; letter to Patty Young re depositions .50
2/22/00 Telephone conference with Hampton Inn re depositions .25
2/28/00 Letter to defendants, Jack Combs and Gary Snyder re dismissal; receipt and review of memorandum opinion and order dismissing complaint and granting attorney's fees .50
2/28/00 Letter to defendants, Jack Combs and Gary Snyder re dismissal; receipt and review of memorandum opinion and order dismissing complaint and granting attorney's fees; telephone conference with court reporter re depositions; telephone conference with Charlene re depositions and order .75
3/1/00 Draft letters to defendants .25
3/2/00 Telephone conference with Gary Snyder re dismissal and affidavit; telephone conference with Kathy Pipkin re sanctions 1.00
3/6/00 Edit and revise affidavit of attorneys fees .50
3/8/00 Telephone conference with Charlene re affidavits .25
3/10/00 Telephone conference with Wallace Anderson re plaintiff's case .25
3/13/00 Telephone conference with Cathy Pipkin re sanctions .25See Exhibit "A" to the Affidavit of Chelye E. Prichard.
After review of the facts and record in this cause in light of the twelve Johnson factors, it is evident that the time and labor logged by the attorneys could have been minimized by dividing the work between the two like cases; that the novelty and difficulty of the questions presented by the cases were basic and relatively well settled; that the skill required to perform the legal services properly was that of an average attorney; that there has been presented no evidence of awards in similar cases, no evidence of the experience or reputation of the attorneys, nor evidence of time limitations and exclusion of other employment by the attorneys; and that the undesirability of the case was high given the plaintiff's past history of litigation. Upon due consideration, the court finds no award should be granted for any duplication of charges where it is not clear that the fees were aptly divided between like cases. The court finds that it is unable to determine whether the hours logged and rates charged by Ms. Pipkin were customary and reasonable. It is evident that all fees logged by Ms. Pipkin were duplicative; therefore, the court declines to award any fees whatsoever as sanctions against the plaintiff on behalf of the defendant Elizabeth Vinson. The court further finds that the fees charged by Ms. Prichard which are not duplications of those fees charged in cause number 3:99cv54 are customary and reasonable; therefore, the award of $300.00 as sanctions against the plaintiff on behalf of the Olive Branch defendants is proper.
The amount of sanctions, $300.00 is equal to the total non-duplicative hours, 2.5, at $120.00 per hour, as charged by Ms. Prichard.
CONCLUSION
For the forgoing reasons, the court now declines to award any attorney's fees as a sanction against the plaintiff under Rule 11 of the Federal Rules of Civil Procedure on behalf of Elizabeth Vinson, and shall award $300.00 in attorney's fees as a sanction against the plaintiff on behalf of the Olive Branch defendants.An order will issue accordingly.
ORDER
In accordance with the memorandum opinion this day issued, it is ORDERED:
that the defendant, Elizabeth Vinson is not awarded any attorney's fees in this cause; and that the Olive Branch defendants shall be awarded $300.00 in attorney's fees in this cause.