Opinion
Case No. C-3-92-164.
March 20, 2000.
DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES (DOC. #82); CAPTIONED CAUSE DISMISSED FOR WANT OF PROSECUTION; TERMINATION ENTRY
The instant litigation, spanning much of the last decade, arises from the termination of Plaintiff James Parry's employment with Wright State University ("WSU"). After unsuccessfully attempting to pursue WSU's grievance procedures, he initiated this litigation against Paige E. Mulhollan, President of WSU; Edward J. Spanier, Vice President for Business and Finance and Treasurer of WSU; Henry A. Wilson, Mediator, Affirmative Action Programs; and Gwen M. Mattison, University Counsel for WSU. In his Complaint (Doc. #1), Plaintiff set forth three federal claims for relief, to wit: that he suffered the deprivation of a property interest without due process of law, in violation of the Fourteenth Amendment (Count One); that he suffered the deprivation of a liberty interest without due process of law, in violation of the Fourteenth Amendment (Count Two); and that he was discharged in retaliation for exercising his right to freedom of speech, in violation of the First Amendment (Count Three). In two prior Decisions (Doc. #31, Doc. #38), the Court granted summary judgment to the Defendants on Count Three and to the Defendants, in their individual capacities, on Counts One and Two, due to qualified immunity. As a result of those rulings, Plaintiff's remaining claims consisted of his procedural due process claims "insofar as they are brought against the Defendants in their official capacities, and insofar as the relief sought is prospective equitable relief." See Doc. #38 at 4. On July 15, 1995, the Court overruled Defendants' motion for summary judgment on those remaining claims (Doc. #57).
In its July 15, 1995, Decision, the Court addressed the remedy which would be available to Plaintiff in the event that he prevailed in the litigation. The Court noted that, although it was inclined to agree with the Defendants that the appropriate remedy would be to order a hearing for Plaintiff, the resolution of that issue would have to await a trial on the merits. Despite the fact that a trial had not occurred and, therefore, that Defendants had not been found to have deprived Plaintiff of a property or liberty interest without due process of law, such as would cause the Court to order a due process hearing, Defendants offered to afford him such a hearing. For much of the next two years, the parties attempted (with the aid of the Court) to come to an agreement as to the procedures by which the hearing would be held. In a status conference held on October 8, 1997, counsel for the parties informed the Court that they had arranged for depositions to be taken in November of that year, and had scheduled the due process hearing for June, 1998 (Doc. #78). In its entry journalizing that conference, the Court noted that, "[d]epending on the outcome of the aforesaid hearing, a Fee Petition may ultimately be filed." (Id.)
The parties requested that the Court determine the number of depositions that Plaintiff would be allowed to take in preparation for the hearing and resolve the issue of whether the proposed hearing satisfied the standards of procedural due process.
In July, 1998, counsel for Plaintiff informed the Court that he had been unable to contact his client since early January, 1998, and that a certified letter sent to Mr. Parry in April, 1998, had been returned as unclaimed. See correspondence from David Torchia dated July 10, 1998. The Court was further informed that the proposed due process hearing had been canceled due to the inability of Plaintiff's counsel to contact him.
In a telephone conference call held on July 24, 1998, the Court and counsel agreed that the lawsuit would remain on the Court's suspended docket until July 26, 1999, at which time it would be dismissed for want of prosecution, should Parry not have contacted his attorney by that time, in order to begin preparations for the due process hearing (Doc. #81). Plaintiff's counsel was given the option of filing a request for attorney's fees at any time within said one year period of time, covering all services rendered to that date (id.). On July 27, 1999, Plaintiff's counsel filed such a motion (Doc. #82).
Pending before the Court is Plaintiff's Motion for Attorney Fees (Doc. #82). For the reasons assigned, that Motion is OVERRULED.
Under 42 U.S.C. § 1988, district courts have the discretion to award attorney's fees to a "prevailing party" in a civil rights suit. 42 U.S.C. § 1988 provides that, in certain specified civil-rights cases, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. . . ." 42 U.S.C. § 1988(b). The determination of whether an award of attorney's fees is appropriate under § 1988 involves a two-step inquiry. Cramblit v. Fiske, 33 F.3d 633, 635 (6th Cir. 1994); Farrar v. Hobby, 506 U.S. 103 (1992). First, the district court must determine whether the moving party is a "prevailing party." Second, if the first step is satisfied, the court must determine whether the moving party's victory was sufficient to justify a fee award of a particular amount. Farrar, 506 U.S. at 114; Cramblit, 33 F.3d at 635 ("After a district court determines that a plaintiff is a prevailing party under § 1988, it must then determine what is a "reasonable" attorney's fee.").
1. Prevailing Party Analysis
To be considered a prevailing party, a plaintiff "must be able to point to a resolution of [a] dispute which changes the legal relationship between [him]self and the defendant." Payne v. Board of Educ., Cleveland City Schs., 88 F.3d 392, 397 (6th Cir. 1996) (quoting Texas State Teachers Ass'n, 489 U.S. at 792-93);Krichinsky, 963 F.2d at 850. A plaintiff therefore "must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Farrar, 506 U.S. at 111 (citations omitted). In other words, "a plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id. at 111-12; Payne, 88 F.3d at 397. "[T]here must be some actual benefit to the plaintiff either in terms of monetary damages, injunctive relief, or a voluntary change in a defendant's conduct." Lansing Mercy Ambulance Serv., Inc., v. Tri-County Emergency Medical Control Authority, 1997 WL 615757 (6th Cir. Oct. 3, 1997) (emphasis added).
In the present case, Plaintiff argues that he was successful on his claims that he was denied due process and that he was entitled to an administrative hearing. Although Defendants have not conceded that he was entitled to a due process hearing, Parry argues that he was vindicated. Specifically, he asserts that, "through this action, Plaintiff obtained the right to a hearing that Defendants' refused to provide in July of 1991, and vigorously contested throughout this action. Plaintiff's position that his right to a hearing had been denied was clearly vindicated." (Doc. #85 at 6)
In his Complaint (Doc. #1), Plaintiff sought reinstatement to his position at Wright State University, damages for lost income and benefits, damages for emotional distress and mental anxiety, punitive damages, and other legal and equitable relief. In the face of this prayer for relief, Defendants have consistently asserted that reinstatement and damages are inappropriate (Doc. #50). Rather, they have stated that, at most, Plaintiff would be entitled to an administrative hearing (Doc. #41 at 3-6). As discussed above, in July of 1995, Defendants offered to provide Plaintiff an administrative hearing and, over the next two years, the parties attempted to come to agreement over the procedures for that hearing. Plaintiff asserts that Defendants' agreement to grant him such a hearing renders him the prevailing party. This Court does not agree.
Although Defendants agreed to provide Parry an administrative hearing and the parties had attempted to agree to the procedures and timing of that hearing, such an agreement constituted negotiations toward a settlement, not a consummated settlement nor a Court-ordered remedy. As of October 17, 1997, the final details of the hearing, including the deposition schedule for out-of-town witnesses and the exact date of the hearing, had not yet been agreed upon by the parties (Doc. #78). There was no formal consent decree, settlement agreement, or Court-ordered judgment, and the proposed hearing was ultimately canceled due to Plaintiff's disappearance. In essence, there was no material change in the legal relationship between the parties, and Plaintiff received no actual benefit from the parties' attempts to negotiate the terms of a due process hearing for him. Because the tentative arrangements for the hearing "fell through" and no hearing was held, Plaintiff's position that his right to a hearing had been denied was not vindicated. Even if Plaintiff were vindicated by the offer of a hearing, he accrued no benefit, as no hearing was ultimately held. Accordingly, Plaintiff has not demonstrated that he prevailed in this litigation, by receiving an actual benefit as a result of this litigation.
In his reply memorandum, Plaintiff argues that his lawsuit was a catalyst for the hearing to be granted to him. He cites to Sixth Circuit authority which states that "[a] plaintiff [who does not obtain direct relief] may also qualify as the prevailing party if his lawsuit is found to be the `catalyst' which causes the defendant to make significant changes in its past practices."Othen v. Ann Arbor Sch. Bd., 699 F.2d 309, 313 (6th Cir. 1983);see Payne, 88 F.3d at 397-98.
A two-part test is used to determine "prevailing party" status under the "catalyst" test. The first determination is whether, "as a matter of fact, the plaintiff's lawsuit was a necessary and important factor in achieving the relief desired." If this first question is answered affirmatively, the second inquiry is "whether the relief obtained resulted from a gratuitous act on the defendant's part or whether defendant's actions were mandated by law."Payne, 88 F.3d at 397-98.
Herein, Defendants' proposed hearing, a proposal which they were not obligated to make, given the then procedural posture of the case, was directed solely to benefit Plaintiff, and there is no indication that they have altered their policy with respect to pre-termination grievance hearings as a result of this litigation. Thus, there is no indication that the present lawsuit was a catalyst for Defendants to make significant changes to their past practices, to the benefit of others. Even assuming, arguendo, that this prong had been answered in the Plaintiff's favor, the grant of a hearing was purely a gratuitous act by the Defendants, not mandated by settlement of this lawsuit or by judgment. Thus, the catalyst theory is inapplicable under the present circumstances, and Parry has not demonstrated that he has prevailed under that theory.
Because this Court concludes that Plaintiff did not prevail in this litigation, the Court need not determine the appropriate amount of attorney's fees to be awarded.
2. Proponent of the Instant Motion for Attorney's Fees
Even if the Court had concluded that Parry was the prevailing party in this litigation, the Court has serious reservations as to whether this Motion has been brought by Plaintiff, as opposed to Plaintiff's counsel. At the time this Motion was filed, Plaintiff's counsel had not had contact with his client since early January of 1998, a period of one and a half years. In fact, the billing statement submitted by Plaintiff's counsel, Mr. Torchia, as Exhibit B to his Motion, indicates that he last spoke with his client on November 1, 1997, more than two and a third years ago. To date, there is no indication that Mr. Parry has been in contact with his attorney since that time.
It is undisputed that a fee award belongs to the client and not the attorney. (Doc. #85 at 2) However, Mr. Torchia has indicated that the instant motion is for the benefit of his client, because Mr. Parry will be refunded the $4,483 in legal fees and the $868 in expenses that he has paid. Moreover, he argues that there is a clear difference between a client being unavailable and a client who has expressly not authorized counsel to do something.
The Court agrees that an unavailable client does not necessarily equate with a client who has expressly not authorized counsel to act. However, in the present circumstances, that distinction has become a distinction without a difference. As acknowledged by counsel, the decision to seek attorney fees in a civil rights case belongs to the client. Mr. Parry therefore is within his rights to forego that statutory remedy. Venegas v. Mitchell, 495 U.S. 82, 88 (1990) ("[J]ust as we have recognized that it is the party's entitlement to receive the fees in the appropriate case, so have we recognized that as far as [ 42 U.S.C. § 1988] is concerned, it is the party's right to waive, settle, or negotiate that eligibility."); United States ex rel. Virani v. Jerry M. Lewis Truck Parts Equip., Inc., 89 F.3d 574, 577 (9th Cir. 1996) ("The Supreme Court has made it clear that, in general, statutes bestow fees upon parties, not upon attorneys. Those fees can, therefore, be waived by the party himself.") (citations omitted); Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1230 (10th Cir. 1998) (same). In light of the fact that he has failed to avail himself of Defendants' proposed administrative hearing, the basis for his argument that he has prevailed, and ceased to prosecute this litigation as of January of 1998, the Court cannot reasonably infer that Mr. Parry has sought attorney fees in this action, even though to do so might have been to his benefit. The extended lack of contact between Plaintiff and his counsel, without any evidence that Mr. Parry intended for his attorney to continue to prosecute fully this litigation throughout his extended absence, negates any inference that he authorized such a motion to be filed, particularly one and a half years after the cessation of contact.
The Court is sympathetic to Mr. Torchia's predicament. He is a capable and respected attorney, whose services have not been fully and adequately compensated by his client. As aptly stated inThompson v. Penn. Parole Bd. Member Jefferson, 544 F. Supp. 173, 176 (E.D.Pa. 1982), Parry "has repaid his attorney's industry and dedication by disappearing and denying [him] the opportunity to establish [his] right to a fee." The Court is sincerely disappointed that Parry has not seen fit to pursue the proposed due process hearing, and to seek attorney's fees and the reimbursement of expenses on his and his counsel's behalf.
For the foregoing reasons, Plaintiff's Motion for Attorney's Fees (Doc. #82) is OVERRULED.
As stated above, the Court indicated during a telephone conference with counsel, held on July 24, 1998, that the captioned cause would remain on the Court's suspended docket until July 26, 1999, at which time it would dismiss for want of prosecution, should Plaintiff not have contacted his lawyer by that time, in order to begin preparations for the administrative hearing (Doc. #81). To date, the Court has received no indication that Plaintiff has contacted his attorney. Accordingly, the captioned cause is hereby DISMISSED for want of prosecution.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.