United States Court of Appeals,
Eleventh Circuit.
No. 93-9403.
Gail HEAD, Plaintiff-Counter-Defendant-Appellee,
v.
Larry MEDFORD, individually and as Mayor of the City of Rutledge,
Ga., Dewey H. Richardson, individually and as City Manager for the
City of Rutledge, Ga., Hazel Conner, individually and as Member of
the City Council for the City of Rutledge, Ga., Virginia Davis,
individually and as Member of the City Council for the City of
Rutledge, Ga., Jimmy Thompson, individually and as Member of the
City Council for the City of Rutledge, Ga., Brad Overstreet,
Defendants-Appellants,
The City of Rutledge, Ga., Defendant-Cross-Defendant, Counter-
Claimant, Cross-Claimant, Appellant,
The Cincinnati Insurance Company, Intervenor-Defendant, Cross-
Claimant, Counter-Defendant, Cross-Defendant.
Aug. 25, 1995.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CA-91-128-ATH), Duross Fitzpatrick, Chief
Judge.
Before EDMONDSON and CARNES, Circuit Judges, and MOYE*, Senior
District Judge.
PER CURIAM:
BACKGROUND
This litigation began as an action for damages in connection
with the termination of plaintiff's employment, in the Superior
Court of Morgan County, Georgia, against appellants, Larry Medford,
Dewey H. Richardson, Hazel Conner, Virginia Davis, Jimmy Thompson,
Brad Overstreet, and the City of Rutledge, Georgia (hereinafter
"defendants"). Appellee, Gail Head (hereinafter "plaintiff"),
*
Honorable Charles A. Moye, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
filed a five-count complaint containing four state law claims and
claims based on federal law. Plaintiff's federal claims charged
that defendants had deprived her of a property interest in her
employment with the City of Rutledge (the "City") in violation of
the state and federal constitutional rights to due process of law.1
Defendants removed this case to the United States District
Court for the Middle District of Georgia on the basis of the
federal question presented by the due process claim brought by
plaintiff under the Fourteenth Amendment of the United States
Constitution. Plaintiff thereafter moved to amend her complaint to
delete any reference to a federal constitutional claim asserting
that such language was surplusage and to remand the case to state
court. Plaintiff conceded that she "cannot and has not stated a
cognizable claim for relief in a Federal forum," referring at that
time to her 14th amendment due process claims. [App. Rec. 16 at
2.] The district court denied plaintiff's motion for remand, as
well as her motion to amend the complaint, noting that since
federal question jurisdiction existed at the time of removal
amending the complaint would not divest the court of jurisdiction.
The Cincinnati Insurance Company ("Cincinnati"), the insurer
which issued a position fidelity bond covering plaintiff for
$25,000 and naming the City as the insured, sought to intervene in
this matter. The district court granted the motion to intervene.
Cincinnati filed a counterclaim against plaintiff and a cross-claim
against the City. The City then filed a cross-claim against
1
"[N]or shall any State deprive any person of life, liberty,
or property, without due process of law...." U.S. Const.Amend.
XIV, § 1.
intervenor Cincinnati.
Following approximately one year of discovery, on all claims,
state and federal, defendants sought summary judgment on all
claims, including the federal constitutional claims, which
plaintiff opposed. The district court granted defendants' motion
for summary judgment on plaintiff's federal constitutional claims
only.2 The district court declined to exercise supplemental
jurisdiction over the remaining state law claims, and dismissed
them without prejudice pursuant to 28 U.S.C. § 1367(c), a dismissal
contested by defendants.
Defendants sought reconsideration of the district court's
dismissal of plaintiff's state law claims on the ground that the
court retained jurisdiction, and equitable considerations warranted
retention of jurisdiction. Defendants also filed a motion for
attorneys fees and a bill of costs. Similarly, plaintiff filed a
motion for attorneys' fees, costs and expenses.
The district court denied defendants' motion for
reconsideration. This appeal followed.
This case presents two issues only. First, did the district
court err in denying without explanation the bill of costs sought
by appellants pursuant to Rule 54(d) of the Federal Rules of Civil
Procedure? Second, did the district court err in denying without
explanation appellants' motion for attorneys' fees brought under 42
2
The district court determined that plaintiff alleged three
federal constitutional violations: 1) violation of due process
for failing to follow established municipal procedures for firing
employees, 2) violation of due process by the taking of her
property right in employment, and 3) violation of the takings
clause of the Fifth Amendment [incorporated in the XIV Amendment]
by unlawfully discharging plaintiff. [App.Rec. 128 at 2-3.]
U.S.C. § 1988 or Rule 11 of the Federal Rules of Civil Procedure?
There is no claim here that the district court abused its
discretion in dismissing all state law claims. We conclude that
the answer to both questions is "yes," and thus, remand this case
to the district court to award costs and attorneys' fees in an
appropriate amount or to explain its decision to award no costs or
fees.
STANDARD OF REVIEW
We review the factual findings underlying a district court's
determination regarding prevailing party status for clear error.
Church of Scientology Flag Serv., Org., Inc. v. City of Clearwater,
2 F.3d 1509, 1512-13 (11th Cir.1993), cert. denied, --- U.S. ----,
115 S.Ct. 54, 130 L.Ed.2d 13 (1994). "Whether the facts as found
suffice to render the plaintiff a "prevailing party' is a legal
question reviewed de novo." Church of Scientology, 2 F.3d at 1513.
Finally, a district court's determination that a party has
prevailed for purposes of awarding attorneys' fees is reviewed for
abuse of discretion. Id.
I. Bill of Costs
The district court's order denying attorneys' fees and costs
in this case stated: "[a]fter careful consideration Plaintiff's
and Defendant's motions for attorney's fees, costs and expenses are
hereby DENIED." [App. Rec. 151.] The district court made no
finding whether defendants were prevailing parties for purposes of
determining costs under Rule 54(d), Fed.R.Civ.P., or attorney's
fees under 42 U.S.C. § 1988. Neither did the district court
explain its decision to deny attorney's fees and costs to both
parties.
Rule 54(d) of the Federal Rules of Civil Procedure provides
that "costs other than attorneys' fees shall be allowed as of
course to the prevailing party unless the court otherwise directs."
Fed.R.Civ.P. 54(d). This Court has held that "where the trial
court denies the prevailing party its costs, the court must give a
reason for its denial of costs so that the appellate court may have
some basis upon which to determine if the trial court acted within
its discretionary power." Gilchrist v. Bolger, 733 F.2d 1551, 1557
(11th Cir.1984) (citation omitted) (emphasis added). Thus,
although the district court has discretion to deny a prevailing
party costs, such discretion is not unfettered.
In the case sub judice, the district court did not determine
whether defendants were prevailing parties and gave no reason for
denying defendants' bill of costs. This was an abuse of the
court's discretion. Gilchrist v. Bolger, 733 F.2d at 1557.
We have determined previously, in connection with 42 U.S.C.
§ 1988, that "we may decide, rather than remanding the issue to the
district court, whether the ... [party] is now a prevailing party
entitled to an ... award of attorneys' fees and costs. See Jones
v. Diamond, 636 F.2d 1364, 1381-83 (5th Cir. Jan. 29, 1981) (en
banc)." Ensley Branch, NAACP v. Siebels, 31 F.3d 1548, 1582 (11th
Cir.1994). We see no principled reason not to extend this rule to
allow us to decide as a matter of law whether a party has prevailed
in connection with assessing costs under Federal Rule of Civil
Procedure Rule 54(d).
To be a prevailing party
[a] party need not prevail on all issues to justify a full
award of costs, however. Usually the litigant in whose favor
judgment is rendered is the prevailing party for purposes of
rule 54(d).... A party who has obtained some relief usually
will be regarded as the prevailing party even though he has
not sustained all his claims.... 10 Wright & Miller, supra,
§ 2667, p. 129-130. Cases from this and other circuits
consistently support shifting costs if the prevailing party
obtains judgment on even a fraction of the claims advanced.
United States v. Mitchell, 580 F.2d 789, 793-94 (5th Cir.1978)
(citations omitted).3
There is no question but that the district court rendered a
judgment in defendants' favor by granting their motion for summary
judgment on plaintiff's federal claims although practically that
apparently constituted only a small part of plaintiff's claims.
That the district court declined to exercise its supplemental
jurisdiction under 28 U.S.C. § 1367 and dismissed all of
plaintiff's remaining state law claims, does not impair the fact
that, as far as the federal case was concerned, defendants
prevailed. Thus, defendants were the prevailing party in the
district court for purposes of Rule 54(d) and are entitled to their
costs unless the district court has some special reason to deny the
costs.
II. Attorneys' Fees
The district court's order denying plaintiff's and defendants'
motions for attorneys' fees did not determine which party had
prevailed for purposes of 42 U.S.C. § 1988,4 or whether plaintiff's
3
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc ), the Eleventh Circuit Court of Appeals
adopted as precedent the decisions of the former Fifth Circuit
issued before October 1, 1981.
4
42 U.S.C. § 1988 provides:
federal claims were frivolous. Again, we properly may determine
which party has prevailed so as to be entitled to an award of
attorneys' fees pursuant to 42 U.S.C. § 1988. Ensley Branch, NAACP
v. Siebels, 31 F.2d at 1582. See Jones v. Diamond, 636 F.2d at
1381-83.
Defendants assert that plaintiff admitted that her federal
claim was frivolous, thus entitling them to attorneys' fees under
both 42 U.S.C. § 1988 and Rule 11, Fed.R.Civ.P. Plaintiff contends
that the district court did not abuse its discretion by denying
defendants attorneys' fees.
Ordinarily, a prevailing plaintiff "is to be awarded
attorney's fees in all but special circumstances." Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.
648, 654 (1978) (Title VII). By contrast, a more stringent
standard applies to prevailing defendants who may be awarded
attorney's fees only when a court finds that the plaintiff's claim
was "frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith." Christiansburg Garment Co.,
434 U.S. at 421, 98 S.Ct. at 700, 54 L.Ed.2d at 657. This standard
applies equally to awards of attorneys' fees sought under 42 U.S.C.
§ 1988 by prevailing civil rights defendants. Hughes v. Rowe, 449
In any action or proceeding to enforce a provision
of sections 1981, 1981a, 1982, 1983, 1985, 1986 of this
title, title IX of Public Law 92-318, the Religious
Freedom Restoration Act of 1993, or title VI of the
Civil Rights Act of 1964, 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.
(Emphasis added).
U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980).
But, the Supreme Court has cautioned that
[i]n applying these criteria, it is important that a
district court resist the understandable temptation to engage
in post hoc reasoning by concluding that, because a plaintiff
did not ultimately prevail, his action must have been
unreasonable or without foundation. This kind of hindsight
logic could discourage all but the most airtight claims ...
Even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely
reasonable ground for bringing suit.
Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700, 54 L.Ed.2d at
657.
In Sullivan v. School Bd., 773 F.2d 1182, 1188-90 (11th
Cir.1985), this Court stated that frivolity determinations are not
subject to immutable rules but rather must be made on a
case-by-case basis. In reviewing the cases, the Court explained
that findings of frivolity have been sustained when either a motion
for summary judgment or a motion for involuntary dismissal,
Fed.R.Civ.P. 41(b), has been granted in instances where plaintiffs
did not introduce any evidence to support their claim. Sullivan,
773 F.2d at 1189 (citations omitted) (emphasis added). See EEOC v.
Reichhold Chems., Inc., 988 F.2d 1564, 1568-69 (11th Cir.1993).
Where plaintiffs introduced evidence sufficient to support their
claim, findings of frivolity generally do not stand. Sullivan, 773
F.2d at 1189. In addition, courts consider several other factors
in determining whether a claim is frivolous: 1) did plaintiff
establish a prima facie case; 2) whether defendant offered to
settle; and 3) whether the trial court dismissed the case prior to
trial or held a full-blown trial on the merits. Id.
In the case sub judice, plaintiff did not survive summary
judgment on her federal constitutional claims. The district court
determined that plaintiff, in accordance with long and firmly
settled Georgia state law, was an at-will employee and, thus, had
no cognizable federal constitutional right to due process or a
claim for a taking. Although the district court did not
specifically determine that plaintiff failed to establish a prima
facie case for her federal constitutional claims, this concept was
the necessary import of the district court's order.
There is no evidence of record to suggest that defendants
offered to settle this case. On the contrary, shortly after
removal of this case to federal court, plaintiff offered to amend
the complaint to eliminate her federal claim and obtain a remand to
state court. Plaintiff, however, never offered voluntarily to
dismiss her federal claims with prejudice. There thus would have
remained a possibility of refiling in the federal court as well as
full litigation of the same issues as applied to the Georgia
constitutional claims, a possibility not even obviated by the
district court's ruling. In obtaining summary judgment, defendants
thus obtained more than the voluntary dismissal without prejudice
offered by plaintiff.
Defendants successfully defeated plaintiff's federal
constitutional claims on the merits. Merely because plaintiff did
not ultimately prevail on her federal claims does not determine
that her claims were groundless. But the assertion of a
constitutional claim based knowingly on a nonexistent property
interest was legally groundless. Accordingly, we find that
plaintiff's federal due process claims were legally frivolous as a
matter of law, Sullivan, 773 F.2d at 1189, and defendants are
entitled to attorneys' fees in accordance with 42 U.S.C. § 1988,
unless the district court points out special circumstances that
justify making no award of fees.
Although appellants contend that they are also entitled to
attorneys' fees under Rule 11 of the Federal Rules of Civil
Procedure, we do not find it necessary to reach that issue.
Thus, we remand this case to the district court for a
determination of the attorneys' fees to which defendants are
entitled, confident that court will be able properly to weigh and
assess the amount of attorneys' fees realistically attributable
solely and exclusively to the plaintiff's federal due process
claims and not to the defendants' attempt to litigate state law
claims in federal court. If there are special circumstances that
justify an award of no costs or no fees the district court must
make these circumstances clear in its order.
The district court's order denying attorneys' fees and costs
is therefore REVERSED. This case is REMANDED to the district court
for further proceedings in accordance with this opinion.5
REVERSED and REMANDED.
5
The award of fees and costs involves judicial discretion.
Thus, a remand is appropriate. See Macklin v. Singletary, 24
F.3d 1307, 1311-12 (11th Cir.1994).