United States District Court, S.D. Alabama, Southern Division
DONISHER R. HILL, Plaintiff,
DON DAVIS and DAVID ZIMMERMAN in their official and personal capacities, Defendants.
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned on Plaintiff Donisher R.
Hill's Motion to Reconsider (Doc. 49) following the
district court's adoption of the Report and
Recommendation filed on March 6, 2019. (Doc. 45). Having
considered Plaintiff's instant Motion and Defendant's
Motion for Sanctions (Doc. 32) and supplemental filings
(Docs. 34, 40), it is determined that Plaintiff's Motion
is due to be denied, and Defendant's
Motion is due to be granted, for the reasons
outlined in the earlier Report and Recommendation. (Doc. 45,
pp. 18 - 25). It is also determined that an award of
attorney's fees and costs in the amount of $2, 926.24
would constitute an appropriate sanction pursuant to Rule 11,
Federal Rules of Civil Procedure.
fully set out in the earlier-filed Report and Recommendation
(Doc. 45, pp. 1 - 5) Plaintiff commenced this action on June
25, 2018, claiming Don Davis, Probate Judge of Mobile County,
and Mr. David Zimmerman, an attorney, violated her state and
federal rights. (See Docs. 1 & 5). Thereafter,
Defendants filed Motions to Dismiss, (see Docs. 7 & 18),
arguing several grounds upon which the Court should dismiss
Plaintiff's claims. Judge Davis also filed a Motion for
Sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure seeking attorneys' fees and costs in the amount
of $5, 806.33. (Doc. 32, p. 3). On September 25, 2018, Judge
Davis supplemented his Motion for Sanctions with a
“Supplemental Filing, ” which contained invoices
from his counsel for fees and costs incurred as a result of
this litigation. (see generally, Doc. 40).
taking the parties' pleadings and motions under
submission, the undersigned found that Plaintiff's claims
were due to be dismissed (Doc. 45, pp. 7 - 15) and that
sanctions were appropriate. (Id. at pp. 16 - 25).
Specifically, it was found that sanctions were appropriate as
Plaintiff was put on notice that her claims were frivolous
(at least as early as July 9, 2018, and no later than
September 19, 2018), Plaintiff was put on notice that
sanctions would be recommended because she failed to withdraw
her claims or cure her pleading deficiencies by the deadline
set by the Court, and that Plaintiff continued this
litigation after being put on such notice. (Doc. 45, pp. 17 -
18; 20 - 24). Thereafter, Plaintiff filed an Objection to the
Report and Recommendation. The district court adopted the Report
and Recommendation in toto on March 28, 2019. Plaintiff then
filed a “Motion for Reconsideration of the Sanction
Provision of Document Number 48.” (Doc. 49). In her
Motion, Plaintiff argues that her conduct does not warrant
sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure and cites Thomas v. Evans, 880 F.2d 1235,
1240 (11th Cir. 1989) as grounds for reconsidering the
district court's imposition of Rule 11 sanctions.
Accordingly, the undersigned construes Defendant's
argument to include objections to the finding that sanctions
are warranted, as well as to any amount of fees that the
Court imposes. Each issue will be addressed in turn below.
Motion to Alter or Amend the Judgment
post-judgment motion may be treated as made pursuant to
either Fed.R.Civ.P. 59 or 60-regardless of how the motion is
styled by the movant-depending on the type of relief
sought.” Mays v. U.S. Postal Service, 122 F.3d
43, 46 (11th Cir.1997). Plaintiff's undesignated
post-judgment motion for reconsideration is construed as a
Rule 59(e) motion to alter or amend the judgment of March 28,
2019 (Doc. 48) for two reasons. First, the motion was filed
within the time period for filing Rule 59(e) motions and the
Eleventh Circuit uses this factor when determining how to
classify the motion. Cormier v. Green, 141 Fed.Appx.
808, 815, 2005 WL 1620475, at *6 (11th Cir. 2005) (“We
treat a motion that is filed within ten business days of the
Giving a favorable reading to Plaintiff's filing
following the Report and Recommendation shows that Plaintiff
disagreed with the undersigned's conclusions in the
Report and Recommendation, generally, and requested that the
district court give de novo review to her claims.
(See Doc. 46, p. 1) (“Donisher Hill sought
relief by motion to the district court and moved for
dismissal of the proceeding. [. . .] Donisher Hill moves this
honorable Court and presiding District Court Judge to review
the entire record and accept this pleading under the
circumstances. For sure, Donisher Hill made the right
decision to seek district court review and judge
[sic] relief in reply to audio events that surfaced
during the magistrate judge [sic] scheduled
hearing.”). entry of judgment and that asks for
reconsideration of matters encompassed in the judgment as a
motion under Rule 59(e).”) (citing Finch v. City of
Vernon, 845 F.2d 256, 258-59 (11th
Plaintiff is clearly seeking to have the Court reconsider
that portion of the judgment wherein it was determined that
Rule 11 sanctions should be imposed, a request fitting neatly
into the Rule 59 domain. Lucas v. Florida Power &
Light Co., 729 F.2d 1300, 1301 (11th Cir.
1984) (“Rule 59 applies to motions for reconsideration
of matters encompassed in a decision on the merits of the
dispute, and not matters collateral to the merits.”);
see also Hayes Family Trust v. State Farm Fire &
Casualty Company, 845 F.3d 997, 1004 (10th Cir. 2017)
(“No matter how styled, a motion will be deemed a Rule
59(e) motion if it is served within the specified time period
and seeks relief appropriate to Rule 59(e) by questioning the
correctness of the underlying judgment.”).
Eleventh Circuit admonishes that “[p]arties, however,
cannot use a Rule 59(e) motion to re-litigate old matters,
Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757, 763 (11th Cir.2005), or to raise new legal
arguments which could and should have been made during the
pendency of the underlying motion, Sanderlin v. Seminole
Tribe of Florida, 243 F.3d 1282, 1292 (11th
Cir.2001).” U.S. v. Klohn, 2010 WL 1379961, at
*2 (M.D.Fla., 2010). As this Court has explained:
Motions to reconsider under Rules 59 and 60 of the Federal
Rules of Civil Procedure are subject to a stringent legal
standard. In that regard, it is hornbook law that “[i]n
the interest of finality and conservation of scarce judicial
resources, reconsideration of an order is an extraordinary
remedy and is employed sparingly.” Longcrier v.
HL-A Co., 595 F.Supp.2d 1218, 1246 (S.D. Ala. 2008)
(citations omitted). […] “Nor are motions to
reconsider properly filed as a kneejerk reaction by a
dissatisfied federal court loser.” Lee v.
Thomas, [No. 10-cv-0587-WS-M, ] 2012 WL 3137901, at *2
(S.D. Ala. Aug. 1, 2012). Rather, under Rule 59(e),
[…] “a party may move for reconsideration only
when one of the following has occurred: an intervening change
in controlling law, the availability of new evidence, or the
need to correct clear error or prevent manifest
injustice.” Longcrier, 595 F.Supp.2d at 1247 (citations
and internal punctuation omitted).
July v. Bd. of Water and Sewer Com'rs of City of
Mobile, No. 11-cv-0635-WS-N, 2013 WL 66646, at *1 (S.D.
Ala. Jan. 4, 2013) (denying pro se plaintiff's
Rule 11 Sanctions
will impose Rule 11 sanctions: “(1) when a party files
a pleading that has no reasonable factual basis; (2) when the
party files a pleading that is based on a legal theory that
has no reasonable chance of success and that cannot be
advanced as a reasonable argument to change existing law; or
(3) when the party files a pleading in bad faith for an
improper purpose.” th Kaplan v. DaimlerChrysler,
A.G., 331 F.3d 1251, 1255 (11th Cir. 2003).
two-step inquiry is normally conducted in the evaluation of a
Rule 11 motion for sanctions. First, the court will determine
whether the non-moving party's claims are objectively
frivolous. Next, the court will consider whether the pro se
party should have been aware that the claims were frivolous.
Adams v. Austal, U.S.A., L.L.C., 503 Fed.Appx. 699,
703, 2013 WL 56640, at *3 (11th Cir. 2013) (“A court
conducts a two- step inquiry when evaluating a motion for
Rule 11 sanctions: (1) determining whether the non-moving
party's claims are objectively frivolous; and (2)
determining whether counsel [or a pro se party] should have
been aware that they were frivolous.).
are deemed frivolous when it is determined that no reasonably
competent attorney (or pro se party) could conclude that they
have any reasonable chance of success or that there is a
reasonable argument to change existing law. Worldwide
Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir.
1996). “A factual claim is frivolous if no reasonably
competent attorney (or pro se party) could conclude that it
has a reasonable evidentiary basis.” Woodhull v.
Mascarella, 2016 WL 3660527, at *2 (N.D.Fla., 2016)
(citing Davis v. Carl, 906 F.2d 533, 535-37 (11th Cir. 1990),
Report and Recommendation adopted, 2016 WL 3661390 (N. D.
Fla., 2016), affirmed, 699 Fed. App'x. 872 (11th Cir.
2017), cert. denied 138 S.Ct. 2685 (2018) and Fed.R.Civ.P. 11
Advisory Committee Note (1983) (“the standard is the
same for unrepresented parties.”)). “As such
where a party does not offer any evidence or only
‘patently frivolous' evidence to support factual
contention, sanctions can be imposed.” (Id.)
(quoting Davis v. Carl, 906 F.2d at 536). A pro
se litigant's “obligations under Rule 11 are
not measured solely at the time of filing” but
reasonable inquiries must be made during the proceeding to
determine if a violation has occurred. Attwood v.
Singletary, 105 F.3d 610, 613 (11th Cir. 1997); see also
Aetna Ins. Co. v. Meeker, 953 F.2d 1328, 1332 (11th
Cir.1992) (“In our view, the district court did not
abuse its discretion in determining that Williams' urging
of Meeker's counterclaim of bad faith after August, 1988,
had no basis in fact and thereby violated Rule 11.”).
11(c) permits sanctions for any violation of Rule 11(b).
“The purpose of Rule 11 sanctions is to reduce
frivolous claims, defenses, or motions, and to deter costly
meritless maneuvers.” Kaplan v. DaimlerChrysler,
A.G., 331 F.3d 1251, 1255 (11th Cir. 2003) (quotation
omitted). Sanctions, if found necessary, “must be
limited to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated.”
Fed.R.Civ.P. 11(c)(4). The available sanctions include
“nonmonetary directives; an order to pay a penalty into
court; or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part
or all of the reasonable attorney's fees and other
expenses directly resulting from the violation.”
Id. “[T]he district court must consider the
ability to pay of the party subject to sanctions.”
Overcash v. Shelnutt, 2017 WL 4286524, at *2 (M.D.
Fla., 2017) (quoting Bullard v. Downs, 161 Fed.Appx.
886, 887 (11th Cir. 2006) (per curiam)).
The Attorneys' Fee Standard
reasonable attorney's fee is initially estimated by
multiplying the number of hours reasonably expended by a
reasonable hourly rate. Moton v. Nathan & Nathan,
P.C., 297 Fed.Appx. 930, 931 (11th Cir. 2008)
(“Under the Supreme Court's approach, …
‘[t]he initial estimate of a reasonable attorney's
fee is properly calculated by multiplying the number of hours
reasonably expended on the litigation times a reasonable
hourly rate.' [Hollis v. Roberts, 984 F.2d 1159,
1161 (11th Cir. 1993)] (quoting Blum [v. Stenson],
465 U.S. [886, ] 888, 104 S.Ct. 1541');">104 S.Ct. 1541 [(1984)].”); and
Norman v. Housing Authority of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988) (“the starting point in any
determination for an objective estimate of the value of a
lawyer's services is to multiply hours reasonably
expended by a reasonable hourly rate”) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933 (1984)). The product of reasonable hours times
reasonable rate is referred to as the “lodestar.”
Galbreath v. Hale Cty., Ala. Comm'n, 2017 U.S.
Dist. LEXIS 132019 at * 3 (S.D. Ala., August 17, 2017)
(citing Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552, 130 S.Ct. 1933, 76 L.Ed. 40 (1983)). The lodestar
is strongly presumed to represent a reasonable attorney's
“reasonable hourly rate” is generally “the
prevailing market rate in the legal community for similar
services by lawyers of reasonably comparable skill,
experience, and reputation.” Id. at * 7
(citing Blum, 465 U.S. at 895 - 96 n.11). The fee
applicant bears the burden to produce “satisfactory
evidence that the requested rate is in line with prevailing
market rates.” Norman, 836 F.2d at 1299. The
Court is itself an expert on the issue of what constitutes a
reasonable rate. Perez v. Carey Int'l, Inc., 373
Fed.Appx. 907, 913 (11th Cir. 2010) (“In determining a
reasonable hourly rate, ‘[a] court . . . is itself an
expert on the question and may consider its own knowledge and
experience concerning reasonable and proper fees'")
(quoting Loranger v. Stierheim, 10 F.3d 776, 781
(11th Cir. 1994)). The Court may rely on its own experience
in determining a reasonable fee without the assistance of
witness testimony. Norman, 836 F.2d at 1303
(“The court, either trial or appellate, is itself an
expert on the question and may consider its own knowledge and
experience concerning reasonable and proper fees and may form
an independent judgment either with or without the aid of
witnesses as to value.”).
movant's burden to establish a reasonable hourly rate
requires more than an affidavit of the attorney performing
the services at issue. Norman, 836 F.2d at 1303
(“Satisfactory evidence at a minimum is more than the
affidavit of the attorney performing the work.”).
Likewise, mere testimony that a particular fee is reasonable
is insufficient. Id. Rather, “satisfactory
evidence necessarily must speak to rates actually billed and
paid in similar lawsuits.” Id. at 1299. Such
evidence “may be adduced through direct evidence of
charges by lawyers under similar circumstances or by opinion
evidence.” Id. See also Duckworth v.
Whisenant, 97 F.3d 1393, 1395 (11th Cir. 1996)
(“this circuit has recognized that a movant may meet
his burden [to demonstrate a requested rate corresponds with
the prevailing market rate] by producing either direct
evidence of rates charged under similar circumstances or
opinion evidence of reasonable rates.”).
calculating the lodestar, the Court may consider the
“relevant factors among the twelve factors identified
in Johnson v. Georgia Highway Express, Inc., [488
F.2d 714, 717 -719 (5th Cir. 1974)].”
Galbreath, 2017 U.S. Dist. LEXIS 132019 at * 3 n.2
(S.D. Ala., August 17, 2017) (citing Bivens v. Wrap it
Up, Inc., 548 F.2d 1348, 1350 (11th Cir. 2008)
(“the Johnson factors are to be considered in
determining the lodestar figure”)). The
Johnson factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment caused by accepting the case; (5) the
customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or circumstances;
(8) the amount involved and the results obtained; (9) the
attorney's experience, reputation, and ability; (10) the
"undesirability[”] of the action; (11) the nature
and length of the relationship between the attorney and
client; and (12) awards in similar cases.
Galbreath, 2017 U.S. Dist. LEXIS 132019 at *3 n.2.
The Eleventh Circuit in Norman commended the Johnson
factors to the district courts, “to the extent that
[the factors] suggest that comparables offered may not be
relevant to the issues before the court or as they may affect
the weight to be given to the comparables being offered the
calculating this fee, the Court should then consider whether
an adjustment is necessary, as Rule 11's award of
sanctions “must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others
similarly situated.” Fed.R.Civ.P. 11(c)(4); see also
Baker v. Alderman, 158 F .3d 516, 528 (11th Cir.
1998) (“[D]eterrence remains the touchstone of the Rule
11 inquiry.”) (footnote omitted). The Court should also
consider “the conduct and resources of the party to be
sanctioned . . . to determin[e] the amount of sanctions to be
imposed.” Id. “The district court should
also inquire as to the extent to which the non-violating
party's expenses could have been avoided, or mitigated,
and reduce or increase the awarded accordingly.”
Baker, 158 F .3d at 528. (footnotes omitted). The
Eleventh Circuit has stated that a court should consider the
following factors for determining an appropriate Rule 11
(1) whether the improper conduct was willful, or negligent;
(2) whether the conduct was part of a pattern of activity, or
an isolated event; (3) whether the conduct infected the
entire pleading, or only one particular count or defense; (4)
whether the person being sanction engaged in similar conduct
in other litigation; (5) whether the conduct was intended to
injure; (6) what effect the conduct had on the litigation
process in time or expense; (7) whether the responsible
person is trained in the law; (8) what amount, given the
financial resources of the responsible person, is needed to
deter that person from repetition in the same case; and (9)
what amount is needed to deter similar activity by other
Thomas v. Early County, Ga., 518 Fed.Appx. 645, 646
(11th Cir. 2013) (unpublished) (citing Fed.R.Civ.P. 11,
advisory committee notes (1993 Amendments)). “Finally,
the court enjoys wide discretion in determining reasonable
attorney's fees.” AL ex rel PLB v. Jackson
County School Bd., 2014 WL 2155223, at *4 (N.D. Fla.
Plaintiff's “Motion ...