Ways v. Miami Univ.

MONICA P. WAYS, Plaintiff, v. MIAMI UNIVERSITY, Defendant.

Case No. 1:12-cv-450

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

September 4, 2015

Bertelsman, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

This matter is before the Court on defendant Miami University's Motion for Fees under Title VII and for Fees and Costs as Sanctions under 28 U.S.C. § 1927 (Doc. 83), plaintiff's response in opposition (Doc. 86), and defendant's reply memorandum (Doc. 87).

I. Procedural History

Plaintiff initiated this lawsuit on June 12, 2012, alleging that defendant discriminated against her on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. (Title VII), and 42 U.S.C. § 1981. Plaintiff's complaint alleged three claims: retaliation, disparate treatment, and disparate impact. (Doc. 1). On August 13, 2012, defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 2). In response to the motion to dismiss, plaintiff abandoned her disparate impact claim only. (Doc. 5). On December 3, 2012, the District Judge overseeing this matter held that "plaintiff's complaint sufficiently states plausible claims so as to survive [defendant's] motion to dismiss with the exception of her claim under 42 U.S.C. § 1981, which is barred by Eleventh Amendment immunity." (Doc 13 at 1) (citation omitted). The District Judge also noted that plaintiff had withdrawn her disparate impact claim. (Id., n.1).

On June 3, 2013, plaintiff filed a motion for leave to amend her complaint to name certain defendants in their individual capacities and to assert 42 U.S.C. §§ 1981, 1983, 1985, and1986 claims against certain officials at Miami University in their individual capacities. (Doc. 38). The Court denied the motion because the proposed amendments were futile, barred by Sixth Circuit precedent and the applicable statutes of limitations, and did not relate back to the allegations set forth in plaintiff's original complaint. (Doc. 48). Notably, neither plaintiff's original complaint nor the proposed amended complaint expressly identified a hostile work environment claim. See Docs. 1, 38.

Defendant filed a fully dispositive motion for summary judgment on February 28, 2014. (Doc. 64). In her response brief, plaintiff abandoned both her disparate treatment and retaliation claims but not her "hostile working environment claims." (Doc. 67 at 2). A hearing on defendant's summary judgment motion was held on June 10, 2014. (See Docs. 74, 75). On July 3, 2014, the District Judge granted defendant's motion for summary judgment on the grounds that plaintiff failed to plead a hostile work environment claim in her complaint and, even if she had, she failed to present sufficient evidence of a hostile work environment to create a genuine dispute of material fact. (Doc. 80). Judgment for defendant was entered that same day. (Doc. 81). Plaintiff appealed, and the Sixth Circuit subsequently affirmed the judgment of the District Court. (Doc. 91). Defendant's motion for fees under Title VII and for fees and costs as sanctions under 28 U.S.C. § 1927¹ (Doc. 83) is now ripe for review.

II. Section 1927

Imposition of sanctions against a plaintiff's lawyer is authorized by 28 U.S.C. § 1927 as follows:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof 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.

Section 1927 sanctions are warranted "when an attorney has engaged in some sort of conduct that, from an objective standpoint, 'falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'" Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1049 (6th Cir. 1996) (quoting In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)). "[Section] 1927 sanctions require a showing of something less than subjective bad faith, but something more than negligence or incompetence." Red Carpet Studios Div. of Source Advantage, Ltd. v. Safer, 465 F.3d 642, 646 (6th Cir. 2006). The purpose of imposing sanctions under § 1927 is to "deter dilatory litigation practices and to punish aggressive tactics that far exceed zealous advocacy." Id. "Thus, an attorney is sanctionable when he intentionally abuses the judicial process or knowingly disregards the risk that his actions will needlessly multiply proceedings." Id.

Defendant maintains that it is entitled to sanctions against plaintiff's attorneys under 28 U.S.C. § 1927. (Doc. 83, Defendant's motion; Doc. 83, Ex. 1, Defendant's supporting memorandum). Defendant enumerates nine instances of purportedly unreasonable conduct during the course of this lawsuit that justify an award of fees under § 1927: (1) plaintiff immediately abandoned her disparate impact claim in her response to defendant's successful motion to dismiss (Doc. 83, Ex. 1 at 2, citing Doc. 5); (2) plaintiff pursued her 42 U.S.C. § 1981 claims despite defendant's well-taken argument that it was immune from suit under the Eleventh Amendment (Id., citing Doc. 75 at 10-11); (3) plaintiff was warned by the District Judge during oral argument on defendant's motion to dismiss that she should dismiss the case if, following theclose of discovery, there were insufficient facts to support her discrimination and retaliation claims (Id. at 3, citing Docs. 2, 5, 7); (4) plaintiff's responses to defendant's discovery requests were vague and evasive and required defendant to seek Court intervention on several occasions (Id. at 3-4, citing Docs. 20-22, 26-27, 30-31, 36-37, 41, 43, 46); (5) plaintiff sought to amend her complaint to add additional claims under 42 U.S.C. § 1981 despite the Court's previous determination that such claims are precluded by Eleventh Amendment immunity and to add claims under 42 U.S.C. § 1983 which were barred by the applicable statute of limitations (Id. at 4, citing Docs. 41, 42, 48); (6) plaintiff wasted time and resources by attempting to proffer inadmissible expert opinions (Id. at 4-5, citing Doc. 75); (7) plaintiff wasted time and resources by propounding discovery requests to which defendant thoroughly responded, but which plaintiff did not use during any deposition or during the summary judgment briefing, and instead relied solely on the discovery conducted by defendant (Id. at 5, citing Docs. 59-61, 67, 80); (8) plaintiff abandoned all of her claims at summary judgment and attempted to assert a new "eleventh-hour" claim of hostile work environment to avoid summary judgment (Id. at 5-6, citing Docs. 67, 73, 80-81); and (9) plaintiff's attorney at oral argument on summary judgment effectively conceded that he knew plaintiff did not have a valid discrimination or retaliation claim at the close of discovery which is why plaintiff attempted to assert a frivolous hostile work environment claim (Id. at 6-9, citing Docs. 40, 64, 75, 80). Defendant asserts that these nine instances unreasonably and vexatiously multiplied these proceedings.

Plaintiff responds that although defendant may be entitled to some reasonable attorneys' fees, it is not entitled to fees from the beginning of this lawsuit. In support, plaintiff notes that the District Judge denied defendant's motion to dismiss and expressly authorized the parties to engage in discovery. (Doc. 86 at 4). Plaintiff also notes that defendant moved for an extensionof the discovery deadline to conduct additional depositions. (Id.). Plaintiff maintains that "[t]hese facts are fatal to any attempt at attorney fees for either the filing of the [c]omplaint or the conducting of the discovery authorized by the Court."' (Id.). Plaintiff further asserts defendant is not entitled to attorneys" fees in connection with plaintiff's argument that she had alleged facts sufficient to state a hostile work environment because "there were and are colorable legal arguments in favor of said claim. . . ." (Id. at 5). Plaintiff concedes, however, that she and her attorneys' request to amend the complaint to add claims that were time-barred "is at least possibly sanctionable." (Id.). Likewise, plaintiff admits that her attorneys may have been under a legal duty to re-evaluate her discrimination and retaliation claims at the close of discovery to avoid imposing on defendant the costs associated with moving for summary judgment. (Id.).

Plaintiff requests that the Court require defendant to submit detailed billing sheets documenting the work done by defense counsel at each stage of this litigation and award only those fees related to defendant's work at the summary judgment stage should the Court find that the imposition of sanctions is appropriate. (Id.). Plaintiff also requests a "50% across the board cut in support staff (paralegal) time."² (Id. at 6). Plaintiff maintains that it is reasonable to assume defense counsel expended 100 hours of attorney time on summary judgment which would yield an award of $18,424.00 per the hourly rates provided in defendant's motion. (Id.). Plaintiff therefore asks that the Court deny defendant's motion for fees and sanctions against plaintiff Monica Ways and, if the Court intends to award fees, only impose those fees against counsel Gary and Kolenich as sanctions under 28 U.S.C. § 1927 in the amount identified above. (Id.). Plaintiff does not dispute that defendant is entitled to costs under Title VII. (Id., n. 10).

In its reply memorandum, defendant maintains that contrary to plaintiff's assertion, it isentitled to fees and costs from the outset of this lawsuit and not just from the close of discovery. Defendant reiterates plaintiff's abandonment of various claims at the motion to dismiss stage and her abandonment of all claims at the summary judgment stage aside from her attempt to proceed on a procedurally and...