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Hill v. Davis

United States District Court, S.D. Alabama, Southern Division

August 19, 2019

DONISHER R. HILL, Plaintiff,
v.
DON DAVIS and DAVID ZIMMERMAN in their official and personal capacities, Defendants.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.

         This matter is before the undersigned on Plaintiff Donisher R. Hill's Motion to Reconsider (Doc. 49)[1] 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.

         I. Background

         As more 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).[2] 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).

         After 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.[3] 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.

         I. Controlling Authorities

         A. Motion to Alter or Amend the Judgment

         “A 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 Cir.1988).[4]

         Secondly, 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.”).

         The 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 post-judgment motion).

         B. Rule 11 Sanctions

         Courts 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).

         A 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.).

         Claims 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.”).

         “Rule 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)).

         C. The Attorneys' Fee Standard

         A 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 fee. Id.

         A “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.”).

         A 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.”).

         In 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 court."[5]

         After 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 sanction:

(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 litigants.

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. 2014).

         II. Discussion

         A. Plaintiff's “Motion ...


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