Case 5:11-cv-00435-CAR Document 29 Filed 09/19/13 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
No. 5:11?CV?435 (CAR)
KOOLER ICE, CORP.,
ORDER ON DEFENDANT’S PETITION FOR ATTORNEY’S FEES AND COSTS
Before the Court is Defendant Kooler Ice, Inc.’s Petition for Attorney’s Fees and
Costs [Docs. 25 & 28] upon entry of final judgment in the above?captioned case. After
carefully considering Defendant’s Petition, the record, and relevant authority, Defendant’s
request is GRANTED IN PART AND DENIED IN PART. Specifically, the Court grants
Defendant’s request for reasonable expenses caused by Plaintiff Larry Wallace’s failure to
obey this Court’s Scheduling and Discovery Order [Doc. 19] and Order to Show Cause
[Doc. 22], pursuant to Rule 37(b)(2)(C). However, the Court denies Defendant’s request
for an award under Title VII, 42 U.S.C. § 2000e?5(k). Defendant’s award is detailed below.
Plaintiff, proceeding pro se, filed a complaint against Defendant on October 31, 2011,
asserting both race and age?based discrimination and retaliation claims under Title VII of
the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act
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(“ADEA”). In response, Defendant filed a pro se answer, “Counter Suit for Damages,” and
a motion to dismiss, which the Court struck as improper submissions by a corporation.
Thereafter, Defendant obtained representation and filed a proper answer on March 27,
2012, raising typical defenses to Title VII and ADEA claims. Defendant did not file a
renewed motion to dismiss or pursue its initial “counter suit.”
The parties submitted a proposed scheduling order on May 14, 2012. For reasons
unknown, Plaintiff severed all contact with both Defendant and the Court shortly
thereafter. On August 3, 2012, the Court directed Plaintiff appear for a hearing on August
16, 2012, and show cause why his case should not be dismissed for failure to prosecute.1
Plaintiff failed to appear for the hearing, and the Court entered judgment dismissing this
case without prejudice. Now, Defendant seeks attorney’s fees and an assessment of costs
and expenses under Federal Rule of Civil Procedure 37(b)(2)(C) and Title VII, 42 U.S.C. §
2000e?5(k). Plaintiff has not responded to Defendant’s request.
In its Petition, Defendant requests $3,867.50 in attorney’s fees, representing 29.8
hours of work. Defendant also seeks $104.03 in miscellaneous costs and expenses. The
attorney’s fees are primarily attributable to two attorneys—a partner, Richard C. Foster,
working 8.9 hours at $150.00 per hour; and an associate, Andrea Alexander Guariglia,
1 While Defendant’s Petition obviously focuses on Plaintiff’s misconduct, the Court notes that it ordered the
first show cause hearing in this case after Defendant failed to appear for a discovery conference on April 10,
2012. April 20, 2012 Order to Show Cause [Doc. 18].
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working 18.9 hours at $125.00 per hour. The remaining two hours represent paralegal
work by Cari Manton at $85.00 per hour.
Defendant provides only two bases for its requested relief: Federal Rule of Civil
Procedure 37(b)(2)(C) and Title VII, 42 U.S.C. § 2000e?5(k). The Court addresses each of
these in turn.
Federal Rule of Civil Procedure 37(b)(2)(C)
Federal Rule of Civil Procedure 37 authorizes the Court to impose a variety of
sanctions for a party’s failure “to obey an order to provide or permit discovery.”2
Although the Court enjoys “broad discretion to fashion appropriate sanctions for
violations of discovery orders,”3 “the [C]ourt must order the disobedient party, the
attorney advising that party, or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure [to obey the Court’s order], unless the failure was substantially
justified or other circumstances make an award of expenses unjust.”4 There are no such
circumstances in this case.
Because Plaintiff failed to meet his obligations under the Scheduling and Discovery
Order [Doc. 19] and the Order to Show Cause [Doc. 22] for Plaintiff’s failure to participate
in discovery, Defendant is entitled to recover reasonable attorney’s fees and costs caused
by Plaintiff’s misconduct. Plaintiff did not appear for his deposition on June 11, 2012, and
2 Fed. R. Civ. P. 37(b)(2)(A).
3 Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993).
4 Fed. R. Civ. P. 37(b)(2)(C).
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never responded to Defendant’s attempts to reschedule. Moreover, Plaintiff failed to
supply his initial disclosures and did not respond to Defendant’s interrogatories, requests
for production, and requests for admissions. These actions led Defendant to expend
additional resources to address Plaintiff’s non?compliance.5 Plaintiff’s utter disregard for
Defendant’s efforts and this Court’s orders warrants sanction, which “must be applied
diligently” to penalize Plaintiff’s misconduct.6
Having found Defendant is entitled to reasonable attorney’s fees and costs, the
Court must now determine an appropriate award. To calculate the appropriate amount of
attorney’s fees, the Court must establish the “lodestar” or the number of hours reasonably
spent working on the case multiplied by a reasonable hourly rate.7 Once the Court
determines the lodestar, it may adjust this amount for other considerations not factored in
In computing the lodestar, the first step is to determine the reasonable hourly rate,
which is defined as “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”9 In
general, the relevant legal community is the place where the case is filed.10 The Court
further notes that it qualifies as an expert on the issue of hourly rates and may properly
5 Def. Exhibit C [Doc. 28?3]; Def. Invoices [Doc. 28?5].
6 See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763 (1980).
7 See Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
8 Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000).
10 See Cullens v. Ga. Dep’t of Transp., 29 F.2d 1489, 1494 (11th Cir. 1994).
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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
In this case, Plaintiff filed his complaint in Macon, Georgia; thus, Macon is the
appropriate legal community for the purpose of determining reasonable hourly rates. The
attorneys’ and paralegal’s hourly rates of $150.00, $125.00, and $85.00 per hour,
respectively, are reasonable in light of the prevailing market rate in Macon.
Unfortunately, the Court cannot as easily determine the number of hours each
individual expended as a result of Plaintiff’s misconduct. Rather than identifying these
specific expenditures, Defendant requests a flat fee of $3,867.50. Having reviewed the
attorneys’ affidavits and accompanying invoices, however, the Court finds Defendant is
entitled to $1,166.50 in attorney’s fees under Rule 37(b)(2)(C), representing a total of 8.9
hours of legal work and 0.4 hours of paralegal work.12 No other adjustments are
necessary. The Court declines to award $104.03 in additional costs and expenses;
Defendant has not demonstrated how this expenditure relates to Plaintiff’s misconduct.
I. Title VII, 42 U.S.C. § 2000e?5(k)
Ordinarily, a prevailing litigant is not entitled to collect attorney’s fees from the
11 Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (internal quotation omitted).
12 The Court’s calculations are outlined in detail in the Appendix to this Order. See Coastal Fuels Mktg., Inc. v.
Fla. Express Shipping Co., 207 F.3d 1247, 1252 (11th Cir. 2000) (stating that a court granting an award of
attorney’s fees should provide a summary table of how it arrived at the amount awarded).
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opposing party.13 However, 42 U.S.C. § 2000e?5(k) provides that the Court, “in its
discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the
costs” of a Title VII action. In 2001, the Supreme Court defined the term “prevailing
party” for purposes of fee?shifting statutes as the “party in whose favor a judgment is
rendered, regardless of the damages award.”14 To qualify as “prevailing,” the party must
be awarded some relief by a court, such as a judgment on the merits or a court?ordered
consent decree.15 Both create the “material alteration of the legal relationship of the
parties” necessary for a fee award.16 Although the prevailing Title VII plaintiffs may be
awarded attorney’s fees in “all but very unusual circumstances,”17 a prevailing defendant
has the added burden of proving that the plaintiff’s Title VII claim was “frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith.”18
Here, the Court need not reach the question of whether Plaintiff’s Title VII claim
was frivolous, unreasonable, or without foundation because Defendant has not
demonstrated it is the prevailing party for purposes of 42 U.S.C. § 2000e?5(k). Instead,
Defendant merely assumes it qualifies for an award under this statute. To the contrary,
13 Alyeska Pipeline Service Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
14 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs., 532 U.S. 598, 602?03 (2001),
superseded by statute on other grounds, Open Government Act of 2007, Pub. L. No. 110?175, 121 Stat. 2524. The
Buckhannon definition was specifically established to apply under the Fair Housing Amendments Act, 42
U.S.C. § 3613(c)(2), and the Americans with Disabilities Act, 42 U.S.C. § 12055. However, the Supreme Court
noted in dicta that the prevailing party provisions in certain other fee?shifting statutes should be interpreted
consistently, and listed 42 U.S.C. § 2000e?5(k). Id. at 602?03, n.4.
15 Id. at 603 (internal quotation omitted).
16 Id. at 604 (internal quotation omitted).
17 Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975).
18 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).
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this case was dismissed without prejudice early in the course of litigation, and the Court
did not address the merits of Plaintiff’s claims.19 Under these circumstances, the Court’s
decision did not alter the parties’ legal relationship in any substantive way.20 Accordingly,
Defendant cannot recover attorney’s fees under 42 U.S.C. § 2000e?5(k).
For the foregoing reasons, the Court hereby GRANTS IN PART AND DENIES IN
PART Defendant’s Petition for Attorney’s Fees and Costs [Docs. 25 & 28]. Plaintiff is
HEREBY ORDERED to pay Defendant an award of $1,166.50 in attorney’s fees as
calculated in the Appendix to this Order.21
SO ORDERED this 19th day of September, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
19 Order of Dismissal [Doc. 23].
20 See, e.g., Hughs v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003) (“A dismissal without prejudice is not an
adjudication on the merits…”); McRae v. Rollins College, No. 6:05cv1767Orl22KRS, 2006 WL 1320153, at *3
(M.D. Fla. May 15, 2006) (“A dismissal without prejudice does not support a finding that a defendant was a
21 See Coastal Fuels Mktg., Inc., 207 F.3d at 1252.
Case 5:11-cv-00435-CAR Document 29 Filed 09/19/13 Page 8 of 8
Calculation of Attorney’s Fees
Partner Richard Foster
Correspondence re sanctions
Report to Client re Show Cause Order
Associate Andrea Alexander Guariglia
Total Reasonable Hours
Total Attorney Fees
Correspondence re failure to respond
Research procedure & sanctions
Communicate w/ Clerk re sanctions
Communicate w/ Clerk re sanctions
Communicate w/ insured re status
Correspondence re Show Cause Order
Prepare for Show Cause Hearing
Travel to/from Macon for Hearing
Appear for Hearing
Communicate re: Hearing details
Total Reasonable Hours
Total Attorney Fees
Receipt & review of Show Cause Order
Review file of case
Total Reasonable Hours
Total Paralegal Fees
Paralegal Cari Manton
Total Fees Awarded: