Lourdes del Rosario FONTANILLAS-LOPEZ, Plaintiff, Appellant, Mildred M. Lopez-Martinez; Luis A. Fontanillas-Pino, Plaintiffs, v. MORELL BAUZÁ CARTAGENA & DAPENA, LLC; Pedro A. Morell-Losada; Antonio Bauzá Santos; Edgardo Cartagena-Santiago; Ramón E. Dapena-Guerrero; Lourdes M. Vázquez, Defendants, Appellees.
No. 15-1326
United States Court of Appeals, First Circuit.
August 5, 2016
Before KAYATTA and BARRON, Circuit Judges, and McAULIFFE,* District Judge.
KAYATTA, Circuit Judge.
In March 2012, Lourdes del Rosario Fontanillas-Lopez (“Fontanillas“) filed sex discrimination claims under federal and Puerto Rico law against her former employer, Morell Bauzá Cartagena & Dapena, LLC (“MBCD“), and several individual
I. Background
Fontanillas began working as an attorney in MBCD‘s Tax Department in January 2009.1 Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC (”Fontanillas I“), 995 F.Supp.2d 21, 28 (D.P.R. 2014). Fontanillas‘s supervisor soon grew concerned with Fontanillas‘s poor relationships with her female co-workers, substandard work performance, and failure to comply with MBCD rules. Id. at 40. On the supervisor‘s recommendation, MBCD‘s capital partners decided in August 2011 to terminate Fontanillas. Id. Several months later, Fontanillas filed a complaint against MBCD and its co-owners and administrator in federal district court.2 Fontanillas‘s complaint raised sexual harassment, gender discrimination, and retaliation claims under Puerto Rico law and Title VII of the federal Civil Rights Act of 1964,
Almost a year into the proceedings, during the course of discovery, the individual defendants moved to dismiss the federal claims against them. The district court granted this motion over Fontanillas‘s opposition, leaving MBCD as the lone remaining defendant on Fontanillas‘s federal claims. Several months thereafter, the defendants moved for summary judgment on all remaining claims. In a thorough written opinion, the district court granted summary judgment in favor of MBCD on Fontanillas‘s federal claims and dismissed Fontanillas‘s supplemental claims under Puerto Rico law without prejudice. Fontanillas I, 995 F.Supp.2d at 53.
Following entry of judgment on February 7, 2014, the defendants moved for attorneys’ fees. The district court, in a November 18, 2014, written opinion, accepted the defendants’ argument that Fontanillas had continued to litigate even after she had been “duly apprised” during the course of discovery that “her claims were devoid of any merit.” Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC (”Fontanillas II“), 59 F.Supp.3d 420, 425 (D.P.R. 2014). In consequence, the district court found Fontanillas liable to the defendants for the $53,662.50 in attorneys’ fees they had accrued following the point at which, in the district court‘s estimation, Fontanillas should have been aware that she held a losing hand. Id. at 427.
On December 16, 2014, Fontanillas filed a 40-page motion for reconsideration of the attorneys’ fees award under
While awaiting decision on these motions, Fontanillas filed on February 23, 2015, a notice of appeal as to the November 18, 2014, award of attorneys’ fees and the January 23, 2015, denial of leave to file in excess of the local page limits. Just after the initial appellate briefing schedule had been set, the district court issued an opinion and order on September 30, 2015, denying Fontanillas‘s Rule 59(e) and 60(b) motions. Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC (”Fontanillas III“), 136 F.Supp.3d 152, 160 (D.P.R. 2015). Fontanillas then timely amended her notice of appeal to include challenges to these denials. In all, Fontanillas asks us to review four of the district court‘s rulings: (1) the denial of leave to submit filings in excess of the local page limits; (2) the award of attorneys’ fees to the defendants; (3) the denial of her Rule 59(e) motion to reconsider that award; and (4) the denial of her Rule 60(b) motion for relief from the underlying summary judgment order. We consider these rulings in turn.
II. Analysis
A. Leave to Exceed Local Page Limits
Fontanillas‘s first claim of error is that the district court abused its discretion in declining to allow her Rule 59(e) motion and the memorandum in support of her Rule 60(b) motion to exceed the page limits established by the district court‘s local rules. Fontanillas recognizes that district courts’ “broad latitude in administering local rules” entitles those courts “to demand adherence to specific mandates contained in th[ose] rules.” Air Line Pilots Ass‘n v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994). But Fontanillas
Fontanillas‘s argument flips abuse-of-discretion review on its head by suggesting that we may reverse the district court merely because it could have exercised its “ample latitude” differently. This is not the prerogative of an appellate court. Cf. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 (1st Cir. 2002) (finding it “within the district court‘s discretion” to enforce local rules where “the result does not clearly offend equity“). Fontanillas did not offer the district court any reason to grant an exception to the usual page restrictions beyond the bare assertion that her arguments required her to “address numerous issues of fact and quote extensively from the evidence in the case.” Nor does Fontanillas provide a more robust explanation on appeal as to why she required the extra pages she sought. Instead, she observes that the district court had previously granted the defendants’ motion to file an overlength motion for summary judgment and suggests that “[w]hat‘s good for the goose, is good for the gander.” The district court, though, was within its discretion to find that the defendants, having the burden of persuasion in trying to prove a negative (i.e., that there are no disputed issues of material fact supportive of a discrimination claim) and the need to anticipate arguments that might or might not be made in response, presented a more persuasive case for an exception to the usual page limits than did Fontanillas. Under these circumstances, the district court did not abuse its wide discretion in holding Fontanillas to the default standards the local rules establish as appropriate for the typical litigant.
B. Attorneys’ Fees
1. Jurisdiction
Fontanillas next appeals both the award of attorneys’ fees to the defendants and the district court‘s denial of her Rule 59(e) motion for reconsideration of that award. The defendants accept that this court has jurisdiction over the latter appeal but argue that we do not have jurisdiction over the former. This distinction could matter: on appeal from the denial of a Rule 59(e) motion, it is not fully settled to what extent the reviewing court may revisit the underlying judgment, see McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213–14 & n.5 (1st Cir. 2012), and, in any event, “Rule 59(e) relief is granted sparingly, and only when ‘the original judgment evidenced a manifest error of law, if there is newly discovered evidence, or in certain other narrow situations,‘” Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (quoting Global Naps, Inc. v. Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir. 2007)); see also Ira Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 28 (1st Cir. 2014) (“[R]evising a final judgment [pursuant to Rule 59(e)] is an extraordinary remedy....“).
Whether we have jurisdiction to entertain the merits of Fontanillas‘s challenge to the attorneys’ fees award turns on whether the notice of appeal seeking review of that award was timely. A civil appellant must typically file a notice of appeal “within 30 days after entry of the judgment or order appealed from.”
There is a relevant exception, however. When a litigant files a timely Rule 59(e) motion asking the district court to reconsider a judgment, “the time to file an appeal” of the underlying judgment “runs ... from the entry of the order disposing of” the Rule 59(e) motion.
The defendants nonetheless respond that when the district court rejected Fontanillas‘s timely filed Rule 59(e) motion as overlength, it struck that motion from the record entirely. By taking this step, the defendants argue, the district court created a record that treated Fontanillas‘s Rule 59(e) motion as though it had never been filed and, in so doing, rendered Fontanillas‘s submission of that timely but noncompliant motion incapable of having delayed, or “tolled,” the beginning of the 30-day appeal window triggered by the November 18, 2014, fees award. Because we have already upheld the district court‘s decision to restrict Fontanillas‘s timely but noncompliant Rule 59(e) motion to the ordinarily applicable page limits, and because Fontanillas raises no challenge to the district court‘s act of striking that motion as the specific means of enforcing its decision, the determinative question is whether, as defendants urge, the order striking Fontanillas‘s timely motion from the record vitiated the tolling effect that the motion would have had if the district court had simply denied it, whether on the merits or for noncompliance with the local rules, without striking it.
At first glance, our decision in Air Line Pilots Ass‘n v. Precision Valley Aviation, Inc., 26 F.3d 220 (1st Cir. 1994), would seem to suggest so. In Air Line Pilots, the appellant had filed a timely Rule 59(e) motion in the district court, seeking reconsideration of a summary judgment order. Id. at 222. The motion, however, failed to comply with an applicable local rule. Id. The clerk of court refused to accept the noncompliant motion for filing, and the district court endorsed the clerk of court‘s exclusion of the motion from the record. Id. Although the appellant then submitted a compliant Rule 59(e) motion, the statutory window for filing original Rule 59(e) motions had closed in the interim, and the district court rejected the compliant motion as untimely. Id. at 222–23.
The appellant filed a notice of appeal as to the underlying summary judgment order within 30 days of the order rejecting the compliant but untimely Rule 59(e) motion (though not within 30 days of the summary judgment order itself nor of the district court‘s endorsement of the clerk‘s exclusion of the noncompliant filing from the record). Id. at 223. We held that we lacked jurisdiction over the appeal. Id. at 226. An untimely Rule 59(e) motion does not toll the 30-day window for filing an appeal, id. at 223-24, and we held that the untimely Rule 59(e) motion could not relate back to the filing date of the timely but noncompliant Rule 59(e) motion because—critically—that earlier motion, having never become part of the record, was “a nullity,” id. at 225.
Here, in contrast, there is nothing in Puerto Rico‘s local rules warning a litigant that an overlength motion or, for that matter, an otherwise noncompliant motion, such as a motion that lacks page numbers or a motion that is not “stapled or otherwise attached,”
ORDER denying ... Motion for Leave to File motion in excess of pages allowed by local rule [7(d)]. [Fontanillas‘s Rule 59(e) motion, as well as her Rule 60(b) motion and accompanying memorandum] are hereby stricken from the record. Should the plaintiff wish to re-file these motions, they must comply with the local rules’ page limit.
Nothing in this order implies that the motion was wholly without effect during the period it sat, as in fact filed, under the district court‘s consideration.
That said, Air Line Pilots did suggest in dicta that New Hampshire‘s local rules may not have been dispositive to that case‘s outcome. The Air Line Pilots court observed that the local rule directing the clerk of court to refuse any noncompliant filings was in tension with a then-current provision of the Federal Rules of Civil Procedure—substantially identical to today‘s
Whatever the force of this dicta, it was issued in the context of a different jurisdictional question than the one we face here. In Air Line Pilots, the appellant had not filed a notice of appeal within 30 days of
We need not determine, then, whether Air Line Pilots’ rejection of that argument controls where, as here, there is no local rule providing that a noncompliant motion is a nullity or indeed where the district court specifically invites re-filing after striking a noncompliant motion. Cf. Lexon Ins. Co. v. Naser, 781 F.3d 335, 339-40 (6th Cir. 2015) (an invited revision of a timely but noncompliant Rule 59(e) motion related back to the filing date of the original, noncompliant motion, even though that original motion had been stricken from the record). Even assuming that it does, the district court‘s order rejecting Fontanillas‘s Rule 59(e) motion for its noncompliance with the local rules was an “order disposing of” that motion,
We therefore hold that, at least barring any sort of contrary contextual indicators in the local rules or in the district court‘s interpretation of those rules, a district court‘s order striking a Rule 59(e) motion from the record for noncompliance with local rules is an order disposing of that motion, such that the order‘s entry represents the beginning of the 30-day window for appealing the judgment that forms the underlying subject of the Rule 59(e) motion. Therefore, Fontanillas‘s noncompliant Rule 59(e) motion of December 16, 2014, tolled the onset of the 30-day window for appeal of the attorneys’ fees award until the district court disposed of that motion by striking it from the record on January 23, 2015. As a result, Fontanillas‘s February 23, 2015, notice of appeal as to the fees award was timely filed, and, our jurisdic-
2. Merits
The default rule in American litigation is that all litigants must pay their own attorneys’ fees. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 (1978). Title VII, however, overrides the default by expressly providing that “[i]n any action or proceeding under [Title VII] the court, in its discretion, may allow the prevailing party ... a reasonable attorney‘s fee (including expert fees) as part of the costs.”
The Supreme Court has provided specific guidance as to “what standard should inform a district court‘s discretion in deciding whether to award attorney‘s fees to a successful defendant in a Title VII action.” Christiansburg Garment Co., 434 U.S. at 417 (emphasis omitted). Because excessive generosity toward prevailing defendants would “substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII” by discouraging private plaintiffs, “a plaintiff should not be assessed his opponent‘s attorney‘s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at 422. Thus, “an award of fees in favor of a prevailing plaintiff in a civil rights suit is ‘the rule, whereas fee-shifting in favor of a prevailing defendant is the exception.‘” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 236 (1st Cir. 2010) (quoting Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)).
In finding that this case was such an exception, the district court did not express the view that Fontanillas‘s suit was frivolous when filed. See Fontanillas II, 59 F.Supp.3d at 423. Rather, it determined that this case was among the “rare occasions,” Lamboy-Ortiz, 630 F.3d at 241, in which litigation that was not necessarily frivolous at the outset continued past the moment at which it became clear that the claims asserted were “frivolous and without foundation,” Fontanillas II, 59 F.Supp.3d at 425. That revelatory moment, according to the district court, was the taking of Fontanillas‘s deposition testimony.7 Id.
With the arguable exception of several beside-the-point and underdeveloped assertions made in appealing the denial of her Rule 60(b) motion, Fontanillas offers no challenge to the district court on this point. Making no merits-based argument against the district court‘s finding that her deposition testimony revealed her suit to be frivolous, she simply warns against “the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail,
Instead, Fontanillas seems to argue that the district court abused its discretion by impermissibly basing its fees award in part on her conduct during discovery and not on the frivolity of her claims or, alternatively, by using fee-shifting as a substitute for sanctions. See Indep. Fed‘n of Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989) (“[U]nless the plaintiff‘s action is frivolous a district court cannot award fees to the prevailing Title VII defendant.“);
Again eschewing any argument as to the non-frivolity of her discrimination claims, Fontanillas next contests the notion that she sought to continue litigating, pointing to a voluntary motion to dismiss with prejudice she submitted on October 7, 2013, after the district court, having made a “perfunctory review” of the defendants’ summary judgment motion, had “forewarned [her] of the possibility that her claims be summarily dismissed and that attorney fees be awarded to the Defendants upon dismissal” if the district court determined that those claims were frivolous. Id. at 424. Fontanillas concedes that the district court acted within its discretion in denying her motion to dismiss at that late stage, but she argues that, in light of her willingness to accept a dismissal with prejudice, it was an abuse of discretion to determine that she acted inappropriately in continuing to litigate the case after the district court had essentially refused to allow her to surrender.
Assuming that we would ordinarily agree that a plaintiff may not be saddled with her opponents’ attorneys’ fees for continuing to litigate after her unconditional motion to voluntarily dismiss with prejudice is denied, the problem for Fontanillas is that she did not simply move to dismiss with prejudice. Rather, she moved to dismiss “with prejudice and without the imposition of costs, expenses or attorney‘s fees.” (Emphasis supplied.) In essence, Fontanillas told the district court, “I will continue to litigate these frivolous claims unless the defendants surrender any argument that my litigation of the claims to date has been frivolous.” Cf. Fid. Guar. Mortg. Corp. v. Reben, 809 F.2d 931, 937 (1st Cir. 1987) (plaintiff‘s “decision to ter-
Having thus failed to demonstrate any abuse of discretion, Fontanillas mounts an alternative attack on the fees award, arguing that at least a portion of the award in MBCD‘s favor is barred as a matter of law by the Supreme Court‘s decision in Kay v. Ehrler, 499 U.S. 432 (1991), which held that pro se litigants, including attorneys who represent themselves, cannot seek attorneys’ fees under the Civil Rights Attorney‘s Fees Awards Act of 1976, see id. at 437-38. Because one of the two attorneys representing MBCD in this litigation, Rosangela Sanfilippo-Resumil (“Sanfilippo“), was “a salaried associate of ... MBCD,” Fontanillas argues, “MBCD was representing itself” through Sanfilippo and so has no claim to compensation for her work.8
This argument fails. Sanfilippo was not among the individual named MBCD defendants, and as for Fontanillas‘s argument that Sanfilippo‘s status as an MBCD employee rendered MBCD a pro se litigant in this case, Kay itself provides that “an organization is not comparable to a pro se [individual] litigant because the organization is always represented by counsel, whether in-house or pro bono, and thus, there is always an attorney-client relationship.” Id. at 436 n.7. Accordingly, every circuit we know to have considered the issue has determined that Kay does not prohibit the award of fees to an attorney who represents his or her own law firm. See Treasurer, Trs. of Drury Indus., Inc. Health Care Plan & Tr. v. Goding, 692 F.3d 888, 897-98 (8th Cir. 2012) (fees under the Employee Retirement Income Security Act); Baker & Hostetler LLP v. U.S. Dep‘t of Commerce, 473 F.3d 312, 315 (D.C. Cir. 2006) (fees under the Freedom of Information Act); Bond v. Blum, 317 F.3d 385, 398-400 (4th Cir. 2003) (fees under the Copyright Act), abrogated on other grounds by Kirtsaeng v. John Wiley & Sons, Inc., — U.S. —, 136 S.Ct. 1979, 1983, 195 L.Ed.2d 368 (2016); cf. also Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Mfg. Corp., 236 F.3d 214, 218–19 (5th Cir. 2000) (relying on Kay to find that a law firm litigant may collect attorneys’ fees for its employees’ work under a Louisiana state statute). We agree with our sister circuits’ straightforward reading of Kay and see no reason, moreover, not to apply Kay‘s generally applicable reasoning in the Title VII context. We therefore hold that MBCD was not prohibited as a matter of law from seeking attorneys’ fees for the work Sanfilippo contributed to this litigation.
Having considered and rejected all of Fontanillas‘s arguments to the contrary, we hold that the district court acted within its discretion in awarding attorneys’ fees to the prevailing defendants.9 And in
light of that determination, we further hold that the district court acted within its discretion in declining to overturn that fees award in response to Fontanillas‘s Rule 59(e) motion for consideration. Despite our ruling here, however, we sound a reminder that “decisions to grant defendants their fees” in the Title VII context “are, and should be, rare.” Tang v. State of R.I., Dep‘t of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998). While “one relevant factor” in determining whether a prevailing defendant is entitled to attorneys’ fees is whether the plaintiff has managed to put forward a prima facie case of discrimination, Foster v. Mydas Assocs., Inc., 943 F.2d 139, 144 (1st Cir. 1991), the mere fact that a plaintiff fails to do so on summary judgment does not imply that the plaintiff‘s decision to continue litigation up to the summary judgment stage has been “frivolous, unreasonable, or groundless,” Christiansburg Garment Co., 434 U.S. at 422. Indeed, this court on occasion reverses grants of summary judgment to defendants in discrimination cases. See, e.g., Burns v. Johnson, No. 15-1982, 2016 WL 3675157, at *1 (1st Cir. July 11, 2016); Reyes-Orta v. P.R. Highway & Transp. Auth., 811 F.3d 67, 70 (1st Cir. 2016); Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 22 (1st Cir. 2015); García-González v. Puig-Morales, 761 F.3d 81, 84 (1st Cir. 2014); Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 131 (1st Cir. 2012). In this particular case, the district court expressly acknowledged the need for “[g]reat caution” in making awards of this type. Fontanillas II, 59 F.Supp.3d at 423 (alteration in original) (quoting Lamboy-Ortiz, 630 F.3d at 241). And, as we have noted, Fontanillas does not offer any substantive challenge to the district court‘s determination that her deposition testimony revealed her claims to be frivolous. We can therefore affirm the award as within the district court‘s discretion without in any way implying that the standard for making such awards is at all loosened.
C. Denial of Relief from Summary Judgment
Finally, Fontanillas contends that the district court erred in declining to grant her Rule 60(b) motion for relief from the summary judgment order issued in the defendants’ favor.10 This claim, argued in cursory fashion, is meritless. “[R]elief un-
As for fraud, misrepresentation, or misconduct under
As for mistake under
Finding no merit in any of Fontanillas‘s underdeveloped claims under
III. Conclusion
Finding that Fontanillas has failed to show that the district court abused its discretion in holding her to the local rules’ ordinary page limits, in awarding attorneys’ fees to the prevailing defendants, or in rejecting her motions to set aside the summary judgment order and the fees award, we affirm. Costs to defendants.