United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-31089
CHADWICK E. WELLS,
Plaintiff-Appellant,
versus
CITY OF ALEXANDRIA, ET AL.,
Defendants,
CITY OF ALEXANDRIA; JOHN HAMERNICK; WILLIAM GERARD ALWELL,
Defendants-Appellees.
______________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:01-CV-01686
______________________
Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
After Chadwick Wells filed various claims against defendants,
the City of Alexandria and some of its employees, the district
court granted summary judgment to defendants and later awarded them
attorneys fees and costs. Wells appeals the award of fees and
costs. We reverse in part and remand in part.
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
I
On August 16, 2001, plaintiff Chadwick Wells filed an action
in Louisiana state court against his former employer, the City of
Alexandria, and two of his former supervisors, John Hamernick and
Gerard Alwell. Wells, an employee of the City electric department,
alleged in the complaint that defendants intentionally ordered him
to perform duties that exceeded his doctor’s post-knee surgery
restrictions, exacerbating his injuries and causing him to miss a
physical therapy appointment. Although he never referenced the
Americans with Disabilities Act, he mentioned his “disability” four
times and stated that Hamernick and Alwell “deliberately did not
accommodate” his disability. Although he never referenced § 1983,
he claimed that defendants’ actions were “intentional and
discriminatory towards him.” The parties agree that he claimed
under Louisiana law an intentional tort and constructive discharge,
and under a whistleblower statute,1 for acts in reprisal for
reporting that defendants wrongfully received roofing material from
a city contractor. Wells also sought attorneys fees. Fees are
recoverable under the ADA and § 1983, but not under any of the
Louisiana causes of action.
Defendants removed to federal district court on the grounds
that Wells’s complaint alleged violations of the ADA and § 1983.
Wells did not move to remand.
1
LA. REV. STAT. ANN. 23:967 (2005).
2
Defendants then moved for summary judgment, alleging that: 1)
Wells did not timely assert a claim under the ADA or seek an
administrative remedy as required by that statute; 2) Wells did not
meet other requirements of the ADA; 3) Wells had no right under the
whistleblower statute because he did not advise the City of any
violation of the law, because defendants did not violate any law,
and because there was no proof that defendants acted in reprisal;
and 4) Wells had no claim for an intentional tort because
defendants’ actions were not “substantially certain” to cause Wells
harm. The City also argued that any illegal acts by Hamernick and
Allwell were outside the scope of their employment. Wells
responded that there were genuine issues of material fact as to the
state claims. He specifically disavowed making any federal claims,
noting that he did not contest federal jurisdiction after removal
because there was diversity jurisdiction.
The district court granted defendants’ motion on July 15,
2003. It held that Wells had abandoned any ADA or state law
disability claims he may have made initially; it did not mention §
1983. The court dismissed the remainder of Wells’s state claims on
various grounds.
Wells appealed on July 30, 2003. Prior to oral argument, in
response to a request from this court for letter briefing
concerning the subject matter jurisdiction of the district court,
Wells stated that while he never made federal claims, diversity
jurisdiction existed. We affirmed the summary judgment on April
3
29, 2004, observing that, “insofar” as Wells initially asserted ADA
or other federal claims, he had abandoned them on appeal.2 We
denied rehearing on May 24. Wells’s cert petition was denied on
November 29.
On May 13, while the petition for rehearing was pending,
defendants filed a joint motion for fees and costs, claiming
$109,540.86 in fees and $3,306.45 in costs as prevailing parties on
the federal claims.
Wells opposed the motion, denying that he ever claimed under
the ADA or § 1983 and contending that the joint motion, filed 303
days after the court granted summary judgment, was untimely under
Federal Rule 54(d) and Local Rule 54.3 and that his claims were not
frivolous, unreasonable, or without justification, as the statutes
require. He also urged that defendants were not entitled to costs
for depositions not filed in evidence and taken solely for
investigative purposes and that defendants failed to comply with
this court’s requirements for substantiating the amount of fees and
costs. The district court granted defendants’ motion on September
17, 2004, rejecting Wells’s first four arguments. Finding “some”
merit in Wells’s fifth argument, that defendants had not
substantiated the amount of their fees and costs, the court sua
sponte gave defendants ten business days to submit an itemized list
of fees and costs. The order did not indicate if or when Wells
2
The court did not make further inquiry about federal jurisdiction.
4
should oppose the filing.
Hamernick submitted his list on September 27 and Alwell and
the City submitted theirs on September 30. On October 8, without
a response from Wells, the court granted defendants all that they
asked for: $109,540.86 in fees and $3,306.45 in costs. Wells
appeals from this order, arguing essentially the same points as he
did in front of the district court and, additionally, that the
district court erred in calculating the amount of fees and costs
and erred in not allowing him an opportunity to respond to
defendants’ submission regarding that amount.
II
Although we have concerns about the timeliness of defendants’
motion for fees, we do not decide that issue because we conclude,
reviewing de novo,3 that Wells did not claim under the ADA or §
1983, the only statutes under which defendants did (or could have)
asked for fees.
The allegations in Wells’s complaint control here.4 And in
that complaint Wells never mentioned the ADA, § 1983, or any of
their respective requisite allegations - such as action under color
of law, the denial of a constitutional or statutory right, that he
3
Bejil v. Ethicon, Inc., 269 F.3d 477, 481 (5th Cir. 2001) (holding that
under what law a plaintiff claims in a complaint is a question of law).
4
See Podell v. Citicorp Diners Club, Inc., 914 F. Supp. 1025, 1028 n.1
(S.D.N.Y. 1996) (holding that the complaint “frames and limits the issues”); cf.
John Corp. V. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000) (holding that
the first step in a § 1983 is case is to determine what the complaint alleges).
5
was a member of a suspect class, that he received a right to sue
letter from the EEOC, or that he was disabled or “substantially
limited” in an activity.5 Although the complaint is vague,
requiring some divination to determine what it alleges,6 it is more
reasonable to construe it as claiming violations of state law,
especially Louisiana retaliation law.7
Furthermore, in construing the complaint we can look to the
parties’ course of conduct. Wells explicitly disavowed making any
ADA or § 1983 claims in his response to defendants’ motion for
summary judgment - before the district court ruled on whether Wells
had any viable claims.8 Defendants argue that they stated their
5
While he alleged “discrimination,” that could easily mean that he was
discriminated against because he reported his supervisors’ conduct, for which he
was retaliated against - not because he was disabled or a member of any other
identifiable group. That one word is insufficient to turn a complaint into a §
1983 complaint. And, while he mentioned his “disability” and the lack of
“accommodation” for it, that could easily refer to the means by which he was
retaliated against - that his supervisors allegedly exacerbated his injuries.
Bare mention of the words “disability” and “accommodation” is insufficient to
turn a complaint into an ADA complaint.
6
There is tension in the district court’s decision. The court, in
concluding that Wells’s claims were “frivolous, unreasonable, or without
foundation,” such that fees could be awarded, Dean v. Riser, 240 F.3d 505 508
(5th Cir. 2001); Buckhannon Bd. & Care Home, Inc. V. Va. Dep’t of Health and
Human Res., 532 U.S. 598, 602-03 (2001) (applying the § 1983 standard to ADA
cases), focused on the complaint’s lack of specific allegations sufficient to
state an ADA or § 1983 claim, not just the lack of actual factual basis. But,
in concluding that the complaint stated an ADA or § 1983 claim, the court held
that such specific allegations were unnecessary. In the end, we conclude that
Wells’s alleged ADA or § 1983 claims were clearly “without foundation” because
he never made them.
7
The district court, in granting summary judgment on any possible state
law disability claim, noted Wells’s focus on retaliation.
8
While acknowledging that Wells disavowed such claims, defendants contend
that Wells “cited” federal law in the same response. But Wells’s citation to
federal cases related to his constructive discharge claim - a state claim - not
any alleged ADA or § 1983 claim. And the federal cases he cited were construing
Louisiana constructive discharge law, not federal law. We also note that Wells
6
intention to file for fees under the ADA and § 1988 in their
answers and that Wells “abandoned” his federal claims in his
response to their motion for summary judgment because he realized
they were fruitless. But the plaintiff is the master of his
complaint,9 and defendants cannot restate his claims, consistently
recasting the claims against the plaintiff’s consistent
opposition.10
Defendants’ best argument, and it is flimsy,11 is that Wells
himself, in requesting fees in his complaint, must have claimed
under the ADA or § 1983 since his other claims did not provide for
fees. This is too large a leap in logic, and we decline to take
it.
never conceded federal question jurisdiction by failing to contest removal
because it was clear that diversity jurisdiction existed over his state law
claims: Wells acknowledged the existence of diversity jurisdiction in his brief
to this court on the first appeal, and this court found that diversity
jurisdiction existed.
9
See BP Chemicals, Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir.
2002) (holding that plaintiff controls what the complaint contains, even where
jurisdiction is not at issue).
10
We note, for example, that Wells argued on first appeal that he made no
federal claims, but defendants still devoted part of their brief to contesting
alleged ADA and § 1983 claims.
11
Defendants also contend that the district court, in ruling on summary
judgment, found that Wells made ADA and § 1983 claims. Although this would not
be controlling even if true, it is not. In ruling on the motion for summary
judgment, the district court stated that, “[a]lthough some of the allegations in
Well’s petition for damages could be construed as stating a claim under the ADA,
Well’s rejection of the notion that he is bringing an ADA claim provides
sufficient basis for granting the defendants’ motion for summary judgment on this
particular issue” (emphasis added). It did not mention § 1983. That court, like
this one on the first appeal, held that even if Wells had made federal claims,
he had abandoned them; it did not decide the issue. The district court’s
contrary construction of its prior holding in its order granting fees and costs
is incorrect.
7
We conclude that Wells claimed only under state law, not the
ADA or § 1983. As a result, we reverse that portion of the
district court’s order awarding fees to defendants.
III
We must still address the issue of costs. Under Federal Rule
of Civil Procedure 54(d), the prevailing party usually is awarded
costs. Here, the district court, concerned that defendants had not
substantiated their amount of costs, sua sponte gave defendants ten
business days to clarify their costs and awarded costs eight days
after the last defendant submitted his list. Wells complains about
the lack of opportunity to respond to defendants’ submission,
stating that he would have argued that defendants were not entitled
to the cost of depositions not filed in court and taken solely for
“investigative” purposes.
The record is not clear about the events leading to the
decision on the bill of costs. It does not reflect that Wells
received notice. Without attempting to resolve that question, we
vacate the award and remand the case to the district court to
consider Wells’s objection.
For the foregoing reasons, we REVERSE the award of attorneys
fees to defendants, VACATE the award of costs, and REMAND for
reconsideration of costs upon plaintiff’s filing his opposition.
8
9