UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 95-40874, 95-40889,
95-40910, 96-40333, 96-40451
Summary Calendar
OSCAR GUERRA,
Plaintiff-Appellant,
VERSUS
CELANESE CORP.; CELANESE CHEMICAL CO; ARTHUR BROTHERS INC.,
Defendants-Appellees.
ISRAEL TREVINO,
Plaintiff-Appellant,
VERSUS
CELANESE CORPORATION; CELANESE CHEMICAL; ARTHUR BROTHERS INC.,
Defendants-Appellees.
EUGENIO MIRELES; BARTOLO MENDIOLA; ISRAEL TREVINO;
FRANCISCO GONZALES,
Plaintiffs-Appellants,
VERSUS
ARTHUR BROTHERS INC.,
Defendant-Appellee.
EUGENIO MIRELES; BARTOLO MENDIOLA; ISRAEL TREVINO;
FRANCISCO GONZALES,
Plaintiffs-Appellants,
VERSUS
ARTHUR BROTHERS INC.,
Defendant-Appellee.
OSCAR GUERRA,
Plaintiff-Appellant,
VERSUS
CELANESE CORPORATION; CELANESE CHEMICAL CO; ARTHUR BROTHERS INC.,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(C-80-CV-115)
August 14, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
The Appellants, Oscar Guerra, Israel Trevino, Eulogio Mireles,
Bartolo Mendiola, and Francisco Gonzales, filed suit against the
Appellees for employment discrimination under Title VII (42 U.S.C.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
2
§ 2000e-5(f)(3)). Following settlement of their dispute, the
Appellants sought an award of attorneys' fees pursuant to 42 U.S.C.
§ 1988. The district court denied the Appellants’ motion for
attorney fees. We affirm in part, and reverse and remand in part.
FACTS AND PROCEEDINGS BELOW
Five Mexican-American plaintiffs brought three civil rights
actions to complain of discriminatory employment practices at a
Celanese Corporation (“Celanese”) chemical plant in Bishop, Texas.
Appellants were employed by Arthur Brothers, Inc. (“ABI”), a
contracting firm that provided maintenance and operating employees
at Celanese. Appellants alleged that Celanese and ABI denied them
and other Mexican-American workers an equal opportunity to compete
with Anglos for the preferred jobs at Celanese, leaving Mexican
Americans behind at ABI in disproportionate numbers while the
contractor’s Anglo employees were being promoted to steady
employment at Celanese.
1. Mireles
In 1975 Mireles, Mendiola, Trevino and Gonzalez (referred to
collectively as “Mireles”) filed charges of employment
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). Mireles claimed that ABI had discriminated against him
on the basis of his Mexican national origin. After receiving his
right to sue letter, he filed a class action complaint on October
28, 1976 against ABI. During the course of discovery, he obtained
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information that indicated substantial involvement by Celanese
managers and supervisors in decisions affecting employment with ABI
and with opportunities to compete for job openings at Celanese.
Mireles moved to join Celanese as a defendant. The district court
never ruled on that motion. Mireles later moved to file an amended
complaint naming Celanese as a defendant. That motion was granted,
but no amended complaint was ever filed. However, Celanese
subsequently filed pleadings in the Mireles case referring to
itself as “defendant Celanese” and seeking various forms of relief
from the court. Celanese eventually entered into agreements,
pursuant to which it paid the Mireles plaintiffs $24,000 in return
for release from liability in the Mireles litigation. The release
expressly excluded any claims for attorneys’ fees and costs of the
litigation.
The district court denied Mireles’s motion for attorney fees
based on a finding that Celanese was not a party to that case.
2. Trevino
Israel Trevino, while remaining a party to the Mireles
litigation, filed a new charge with the EEOC in 1979, alleging
Celanese and ABI were jointly responsible as employers for the
discriminatory practices at the Bishop plant. Trevino then filed
a Title VII action against both Celanese and ABI on April 30, 1980.
The district court denied class certification, granted summary
judgment against Trevino and awarded $24,541 in fees to the
defendants on the ground that the case was frivolous. The fee
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award was entered against Trevino and his counsel, Texas Rural
Legal Aid, Inc. (“TRLA”). In 1981, TRLA withdrew as attorney for
Trevino because he had become ineligible for their services under
the provisions of 45 C.F.R. § 1611.9 and private counsel was
substituted. On appeal, this court vacated the orders and remanded
the case with instructions to consider the joint-employer theory
argued by Trevino. Trevino v. Celanese Corp., 701 F.2d 397 (5th
Cir. 1983). In April 1992, ABI settled all claims with all
plaintiffs in the three related suits, including attorneys’ fees.
In February 1993, the district court held a hearing on the
1983 remand, but entered no order. In October 1993, Celanese
settled with Trevino and the district court dismissed his case in
December 1993. The agreement expressly waived any claim Trevino
had to an attorney fee award against Celanese. TRLA takes the
position that they remained a party to the Trevino case after
private counsel substituted in their stead due to the subsequently
reversed attorney fee award against them, and that the dismissal
was not final because they did not receive notice of Trevino and
Celanese settlement.
The district court denied attorney fees in Trevino, finding
that it did not have jurisdiction to reopen the case which had been
closed more than two years earlier.
3. Guerra
Guerra filed his EEOC charges in February 1978 and his Title
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VII and § 1981 actions in 1980 against both ABI and Celanese. The
Guerra case otherwise shares its procedural history with Mireles.
Guerra’s ABI claims were settled in 1992 and his Celanese claims
were settled in 1994 for $12,500.
The district court denied attorney fees, finding that Guerra
was not a prevailing party.
DISCUSSION
1. Standard of review.
On appeal, this Court reviews the district court's ruling on
a request for attorneys' fees authorized by statute for abuse of
discretion, and the supporting factual findings are reviewed for
clear error. Cooper v. Pentecost, 77 F.3d 829, 831 (5th Cir.
1996), quoting, Watkins v. Fordice, 7 F.3d 453 (5th Cir. 1993). We
review conclusions of law underlying a denial of attorneys' fees de
novo. Texas Food Indus. Assoc. v. United States Dep't of Agric.,
81 F.3d 578, 580 (5th Cir. 1996).
2. Guerra’s prevailing party status.
We turn first to the district court's ruling that Appellant
Guerra was not a prevailing party. We hold the district court
erred. The United States Supreme Court in Farrar v. Hobby, 506
U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992), clearly set
forth the requirement for a plaintiff to be a "prevailing party"
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under 42 U.S.C. § 1988. The Farrar Court stated that "to qualify
as a prevailing party, a civil rights plaintiff 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." Id. 506 U.S. at 111, 113 S. Ct. at 573 (citations
omitted)(emphasis added). Further, the Court stated that "[a]
judgment for damages in any amount, whether compensatory or
nominal, modifies the defendant's behavior for the plaintiff's
benefit by forcing the defendant to pay an amount of money he
otherwise would not pay" and, therefore, such a plaintiff is a
"prevailing party" for purposes of attorneys' fees under 42 U.S.C.
§ 1988. Id. 506 U.S. at 113, 113 S. Ct. at 574.
In the instant case, Celanese paid Guerra $12,500 in
settlement of Guerra’s claim. According to the dictates of Farrar,
the judgment of the district court in finding that Guerra was not
a "prevailing party" must be reversed. On remand, the district
court should determine a reasonable attorney for this case, by
e.g., calculating the lodestar (reasonable number of hours times
reasonable hourly rate) then applying the factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974), and adjusting the lodestar upward or downward if
appropriate. See Riley v. Jackson, Mississippi, 99 F.3d 757, 760
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(5th Cir. 1996).1
3. District court jurisdiction to award fees in Trevino.
The district court held that it had no authority to award
attorney fees in Trevino because the order of dismissal was entered
more than two years prior to TRLA’s motion for attorney fees and
there was no basis alleged by TRLA for the district court to
exercise jurisdiction over Trevino in 1996. We agree. Appellants
advance no arguable basis for district court jurisdiction over the
Trevino case in 1996. Seeing none ourselves, we affirm.
4. Was Celanese subject to the district court’s jurisdiction in
Mireles?
The district court declined to award attorney fees in Mireles
because it found that Celanese was not a party to that case.
Celanese contends that Mireles’s complaint did not state a cause of
action against Celanese and that such complaint was never properly
served on Celanese. However, Celanese waived these defenses. Rule
12, FED.R.CIV.P., provides:
A defense of lack of jurisdiction over the person,
improper venue, insufficiency of process or insufficiency
of service of process is waived . . . if it is neither
made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by
Rule 15(a) to be made as a matter of course.
1
A “reasonable” fee for a prevailing party under the
circumstances of a particular case may be a low fee or no fee,
Farrar, 506 U.S. at 115, 113 S.Ct. at 575, in which case the
district court need not recite each of the Johnson factors or even
do the lodestar calculations. Id. We express no opinion as to
what a reasonable fee might be in these cases.
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The record in Mireles reveals no motion pursuant to Rule 12 or
objection in a responsive pleading after Mireles attempted to join
Celanese as a party to the case. In fact, Celanese filed pleadings
in the case referring to itself as a defendant and entered a
settlement agreement with Mireles in satisfaction of Mireles’s
claims asserted in the case, which expressly reserved the attorney
fee issue. We therefore find that Celanese waived the argument
that it was not a party to the suit. Further, it is clear under
Farrar that Mireles, like Guerra, met the criteria for establishing
that he was a prevailing party in the suit. Farrar, 506 U.S. at
111, 113 S. Ct. at 573. We therefore reverse the denial of
attorney fees in this case as well and remand for a determination
of the appropriate amount of fees.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
denial of attorney fees in Trevino, 95-40889, and reverse the
denial of attorney fees in Guerra, 95-40874 and 96-40451 and
Mireles, 95-40910 and 96-40333. We REMAND Guerra and Mireles for
the district court to determine a reasonable amount of attorney
fees.
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