Opinion
Civil Action No. CCB-06-2896.
September 29, 2008
MEMORANDUM
Now pending before the court is a motion for attorney's fees and expenses filed by defendant Howard County, Maryland ("County") against plaintiff William Savage ("Mr. Savage"). The County was the prevailing party in a dispute arising under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981. It now seeks its fees and expenses under both the fee provisions of these Acts — 42 U.S.C. § 12205 and 42 U.S.C. § 2000e-5(k) respectively — and 28 U.S.C. § 1927 ("§ 1927"). The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, fees in the amount of $657.80 will be awarded, to be paid by plaintiff's counsel Thomas B. Corbin.
The County does not base its request on Fed.R.Civ.P. 11.
BACKGROUND
The full facts of the underlying dispute in this case have been discussed previously. Savage v. Howard County Dept. of Housing Cmty. Dev., No. CCB-06-2896, 2007 WL 3268463, at *1-3 (D. Md. Oct. 29, 2007). Of importance here are those facts that gave rise to the work for which the defendant now requests fees and expenses. On September 22, 2005, Mr. Savage was terminated from his position as Regulations Inspector for the Howard County Department of Housing and Community Development. Following his termination, Mr. Savage applied for state unemployment insurance benefits. The Maryland Department of Labor, Licensing and Regulation denied these benefits, finding that Mr. Savage had engaged in "gross misconduct," on October 27, 2005. (Def.'s Mot. to Dismiss at Ex. 13.) Mr. Savage, represented by Mr. Corbin, appealed the termination decision the following spring to the Howard County Personnel Board, which concluded that the County's decision to terminate Mr. Savage was reasonable and lawful. (Pl.'s Fees Opp. Mem. at Ex. 1.) During 2006, Mr. Savage, again acting through Mr. Corbin, filed discrimination charges with the Equal Employment Opportunity Commission (Def.'s Mot. to Dismiss at Ex. 19), and on August 2, 2006, the Commission issued a notice of dismissal, stating it was "unable to conclude that the information obtained establishes violations of the [relevant civil rights] statutes." (Def.'s Mot. to Dismiss at Ex. 20.) Mr. Corbin then filed the complaint in this case on behalf of Mr. Savage on November 2, 2006.
After receiving Mr. Savage's complaint, the County, believing the claims contained within it to be without merit, sent Mr. Corbin a letter on March 16, 2007, in which it reiterated the findings of the Personnel Board and the Commission, and asked him to voluntarily dismiss the complaint with prejudice so as to prevent the County from having to "incur additional inconvenience and expense in defending these baseless claims." (Def.'s Fees Mem. at Ex. 1.) Mr. Corbin did not accede to this request, and the litigation went forward. The County filed a motion to dismiss the complaint or for summary judgment on March 21, 2007, which Mr. Corbin subsequently opposed. The County then filed a reply to this opposition. In all, the County's lead counsel recorded eleven hours of work on this case after its filing of the motion to dismiss or for summary judgment, amounting to $657.80 in fees. (Def.'s Fees Mem. at Ex. 2.) Summary judgment ultimately was granted in favor of the County.
ANALYSIS
The attorney's fee provision of Title VII authorizes the court, "in its discretion, [to] allow the prevailing party . . . a reasonable attorney's fee." 42 U.S.C. § 2000e-5(k). The analogous provision of the ADA contains virtually identical language. 42 U.S.C. § 12205. As the Supreme Court has explained, prevailing plaintiffs and prevailing defendants are treated differently under these fee provisions. Roadway Express, Inc. v. Piper, 447 U.S. 752, 762 (1980). While prevailing plaintiffs are to be awarded attorney's fees unless special circumstances dictate otherwise, prevailing defendants are to be awarded attorney's fees "only when the plaintiff's underlying claim is `frivolous, unreasonable, or groundless.'" Id. at 762 (quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978)); see also Bryant Woods Inn, Inc. v. Howard County, Maryland, 124 F.3d 597, 606 (4th Cir. 1997); Lee v. Chesapeake O. Ry. Co., 389 F. Supp. 84, 85-86 (D. Md. 1975) (declining to award fees to a prevailing defendant when it was "at least arguable" that the plaintiff's claims were not frivolous). Under these provisions, fees may be awarded against the parties but not against their counsel. See Roadway Express, 447 U.S. at 761; Quiroga v. Hasbro, Inc., 934 F.2d 497, 504 (3d Cir. 1991) ("we have said that [Title VII] does not authorize assessment of fees against the loser's attorney").
Section 1927, however, empowers the court to order any attorney who "multiplies the proceedings in any case unreasonably and vexatiously" to "satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. The language of § 1927 makes plain that its main purpose includes both deterring the attorney who engaged in the offending conduct and compensating opposing counsel for having to respond to it. If an attorney is found to have multiplied the proceedings unreasonably and vexatiously — i.e., in bad faith — then he is liable for the payment of attorney's fees under § 1927. "Bad faith" here can refer both to the attorney's actions that led to the present lawsuit and to the attorney's conduct during litigation. Roadway Express, 447 U.S. at 766.
The Fourth Circuit understands "multiplied" to mean that the offending attorney made at least two unreasonable or vexatious court filings. See DeBauche v. Trani, 191 F.3d 499, 511-12 (4th Cir. 1999) (when "the filing of a single complaint cannot be held to have multiplied the proceedings unreasonably and vexatiously . . . § 1927 cannot be employed to impose sanctions").
See Brubaker v. City of Richmond, 943 F.2d 1363, 1382 n. 25 (4th Cir. 1991) ("section 1927 . . . requires a finding of counsel's bad faith as a precondition to the imposition of fees"); U.S. for Use Benefit of Union Light Power Co. v. CamCo Const. Co., Inc., 221 F. Supp. 2d 630, 634 (D. Md. 2002) ("[v]exatious conduct involves either subjective or objective bad faith") (internal quotations and citation omitted).
In this case, Mr. Corbin continued to litigate on behalf of Mr. Savage after it became unreasonable to do so. Not only did Mr. Corbin file a new complaint after three separate labor agencies found his client's claims to be without merit, but he also filed additional responses defending the claims after the County had urged him to dismiss the complaint, and even after the court granted summary judgment to the County. ( See, e.g., Pl.'s Fees Opp. Mem. at 4.) While it is unclear whether the plaintiff himself sought to multiply the litigation unnecessarily in this way, it is clear that plaintiff's counsel should have known not to do so. Mr. Corbin thus demonstrated objective bad faith by multiplying the proceedings well beyond the stage at which a reasonable attorney would have ended litigation. See, e.g., Davis v. Target Stores Div. of Dayton Hudson Corp., 87 F. Supp. 2d 492, 494 (D. Md. 2000) ("the continuation of litigation of claims which have become frivolous has been held to amount to `bad faith' justifying a fee award").
Because it is at least arguable that Mr. Savage's original claims were not themselves frivolous, unreasonable, or groundless, this court declines to award attorney's fees against Mr. Savage under 42 U.S.C. § 12205 and 42 U.S.C. § 2000e-5(k). However, it is plain that Mr. Corbin's handling of Mr. Savage's claims — particularly his continuation of litigation after the County moved for dismissal or summary judgment — amounted to unreasonable and vexatious multiplication of the proceedings. Therefore, the court will award attorney's fees under § 1927 for work the County performed in response to Mr. Corbin's continued litigation. These fees, in the reasonable amount of $657.80, will be paid by Mr. Corbin.
This court remains skeptical that Mr. Savage's racial discrimination claim would be strengthened by full discovery, as Mr. Corbin continues to assert. As noted in the grant of summary judgment, it is highly unlikely that those who hired Mr. Savage — men who share his racial identity — would then discriminate against him on the basis of race in order to terminate him. See Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991).
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendant's motion for attorney's fees (docket entry no. 17) is GRANTED in part and DENIED in part; and
2. The defendant is awarded $657.80 in fees, to be paid by plaintiff's counsel Thomas B. Corbin.