ORDER ADOPTING REPORT AND RECOMMENDATIONS [DE 70]; GRANTING IN PART DEFENDANT’S MOTION FOR SANCTIONS [DE 53]; GRANTING IN PART DEFENDANT’S MOTION FOR FEES AND COSTS [DE 5J, 55]
THIS CAUSE is before the Court upon Magistrate Judge Chris M. McAliley’s Report and Recommendation on Defendant’s Motions for Sanctions Against Plaintiffs Counsel and Fees and Costs [DE 70], filed March 10, 2009. In the Report, Magistrate Judge McAliley recommends that I award Defendant $2,423.42 in costs against Plaintiff Tarence Robinson, and also grant Defendant an award of $1,860.00 in attorneys’ fees as a sanction against Plaintiffs counsel Erwin Rosenberg for the filing of the Motion for Reconsideration [DE 50]. Erwin Rosenberg, filed Objections [DE 71] on March 12, 2009, and Defendant filed a Response to the Objections [DE 72] on March 20, 2009. Neither party objected to Magistrate Judge McAliley’s recommendation on costs, and the time for doing so has passed. I therefore affirm and adopt Judge McAliley’s recommendation and award Defendant $2,423.42 in costs.
As to the recommendation on fees,
1
Rosenberg argues that he was not required to specify the legal standard for reconsideration in the Motion, and that the Motion was not frivolous. Defendant filed a comprehensive response [DE 72] to the objection. Whether Rosenberg was required to state the Rule 59(e) standard in the Motion for Reconsideration is not the issue. Rather, the standard itself is telling because it demonstrates that the Motion for Reconsideration would fail on its face. A motion for reconsideration may be granted on one of three grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.
Offices Togolais
1. The Report and Recommendation [DE 70] is AFFIRMED and ADOPTED.
2. Defendant’s Motion for Sanctions Against Plaintiffs Counsel [DE 53] is GRANTED in PART. Defendant is awarded $1,860.00 in attorneys’ fees as a sanction against Plaintiffs counsel Erwin Rosenberg.
3. Defendant’s Verified Motion to Tax Costs and Attorneys’ Fees Against Plaintiff [DE 54, 55] is GRANTED in PART. Defendant is awarded $2,423.42 in costs against Plaintiff Tarence Robinson.
4. This case remains closed.
DONE AND ORDERED.
ORDER DENYING MOTIONS FOR RECONSIDERATION [DE 75, 78, 79]
THIS CAUSE is before the Court upon Plaintiffs Motions for Reconsideration [DE 75, 78, 79], requesting reconsideration of my Order adopting Magistrate Judge Chris M. McAliley’s Report and Recommendation on Defendant’s Motions for Sanctions Against Plaintiffs Counsel and Fees and Costs [DE 73] and the related judgment [DE 76, 77]. In particular, Plaintiffs counsel Erwin Rosenberg seeks reconsideration of the sanction I imposed against Rosenberg for the filing of the Motion for Reconsideration. Rosenberg claims that I committed clear error because I relied on
Torres v. City of Orlando,
Rosenberg mischaracterizes the holding of
Torres.
In
Torres,
the court determined that plaintiffs lawsuit was lacking in merit and frivolous, and therefore inferred that plaintiff had intentionally filed and prosecuted claims that lacked any plausible legal or factual support.
Rosenberg also argues that the arguments in his original Motion for Reconsideration [DE 59] indicated that I committed
ORDERED AND ADJUDGED that the Motions for Reconsideration [DE 75, 78, and 79] are DENIED.
REPORT AND RECOMMENDATION ON DEFENDANT’S MOTIONS: (1) FOR SANCTIONS AGAINST PLAINTIFF’S COUNSEL AND (2) TO TAX COSTS AND ATTORNEYS’ FEES AGAINST PLAINTIFF
Pending before the Court are Defendant’s Motion for Sanctions Against Plaintiffs Counsel [DE 53] and Defendant’s Verified Motion to Tax Costs and Attorneys’ Fees Against Plaintiff [DE 54]. 1 This matter was referred to the undersigned by the Honorable Alan S. Gold. [DE 59]. Plaintiff filed memoranda in oppositions to both Motions [DE 57, 58] and Defendant filed replies. [DE 60, 61]. For the reasons set forth below, this Court recommends that both motions be GRANTED IN PART.
I. Background
This suit arose from Plaintiffs employment by Defendant, which contracts with the federal government to provide armed security services at numerous locations in Miami-Dade County. In the Spring of 2005 two of the Defendant’s Hispanic supervisors approached Plaintiff, a Black male Security Officer, to discuss a possible promotion. [DE 48, p. 4]. After Plaintiff was interviewed by a third Hispanic supervisor, he was promoted to the Site Supervisor position for a one year probationary period. [Id.]
Approximately two months later, two Hispanic Quality Control officers, also employed by Defendant, arrived at Plaintiffs post for an inspection. After the inspection, one of the officers submitted a critical report citing Plaintiffs lack of cooperation during the inspection, in particular his complaints that, as a fellow supervisor, he should not be subject to inspection. The Quality Control officer concluded that Defendant should reconsider Plaintiffs appointment to the supervisory position. [DE 48, p. 5].
After being advised of the report, in early June 2005, the same Hispanic supervisor who promoted Plaintiff demoted him to the position he held before, Security Officer. [DE 48, p. 6]. By that time, there was no open Security Officer shift at Plaintiffs work site, and Plaintiff was transferred to another work site of his choosing. At the new work site, the available shift offered fewer than 40 hours a week, but Plaintiff nevertheless chose it to avoid working the night shift. [DE 48, p. 7]. After Plaintiff was demoted, Defendant did not fill his Site Supervisor position, although Quality Control officers, and other supervisory personnel, continued to inspect weapons and uniforms at Plaintiffs former work site. These inspections were over and above any inspections Plaintiff would have performed as site supervisor. [DE 48, p. 8].
In September 2005, Plaintiff resigned from his position to work for FEMA in
Plaintiff filed a complaint of race discrimination with the EEOC. Thereafter, on December 29, 2006, Plaintiff brought an action in state court against Defendant for race discrimination. After the complaint had been amended twice, on March 23, 2007, Defendant removed the action to this Court. [DE 1], The operative complaint asserts a single cause of action for violation of the Florida Civil Rights Act of 1992, Florida Statute section 760 et seq., based on Defendant’s alleged discriminatory demotion of Plaintiff. 2 [DE 1, pp. 43-46],
Plaintiff was deposed on August 15, 2007. Believing that Plaintiffs testimony demonstrated that he could not establish a prima facie of case of discrimination, Defendant, on August 23, 2007, served counsel for Plaintiff with a draft motion for sanctions pursuant to Federal Rule of Civil Procedure 11 and Florida Statute section 57.105, that asked Plaintiff to dismiss his complaint with prejudice. [DE 53-1, p. 2], On September 3, 2007, within the 21 day safe harbor period provided by Rule 11, and in an effort to avoid sanctions, Plaintiff moved to dismiss his complaint without prejudice, [DE 16].
In that Motion, Plaintiff stated that a former coworker, Olga Chatters, told him that one of the Hispanic Quality Control officers assumed Plaintiffs duties after Plaintiffs demotion. However, because “Ms. Chatters is still working for Defendant she is afraid to tell the truth.” [DE 16, p. 1]. Plaintiff acknowledged his concern that “without Ms. Chatters’ truthful testimony he may not be able to prove a prima facie case.” Id. Plaintiff further represented that he “only intends to refile this action if in the future he obtains an affidavit from Ms. Chatters consistent with what she told Plaintiff in February 2007.” 3 Id.
Defendant opposed the Motion to Dismiss, arguing that Plaintiff should not be allowed to avoid sanctions by dismissing without prejudice. As an alternative, Defendant proposed that the Court either: “(1) condition the dismissal on the Plaintiffs payment of Defendant’s reasonable fees and costs incurred in defending the matter to date; (2) condition the dismissal on the Plaintiffs payment of Defendant’s reasonable fees and costs incurred in defending the matter to date should the Plaintiff re-file his claim; or (3) deny Plaintiffs motion and allow the case to proceed through the normal course of discovery.” [DE 18, p. 4, ¶ 13]. On the day Defendant filed its opposition, Plaintiff withdrew his Motion to Dismiss. [DE 19].
Plaintiff deposed Olga Chatters on November 15, 2007. Defendant filed its Motion for Summary Judgment on January 9, 2008. [DE 36]. Shortly thereafter, Plaintiff made a $10,000,000 settlement demand on Defendant. [DE 53-2], Mediation took place on January 31, 2008 and ended in an impasse. On March 12, 2008, Defen
At the evidentiary hearing Defendant called one witness, Plaintiffs counsel, Erwin Rosenberg. In response to questions by defense counsel, Mr. Rosenberg relied on the record in this case as evidence of the fact that his actions were not reckless and that the case against Defendant was not objectively frivolous. [DE 69, p. 70]. Mr. Rosenberg also testified that he believed the fact that other Black employees of Defendant had also filed EEOC charges asserting race discrimination lent “support and context” to Plaintiffs claim. [Id. at pp. 59, 62]. Plaintiff called no witnesses. At the end of the evidentiary hearing, the Court allowed the parties ten days to file supplemental briefs addressing whether Defendant had satisfied the procedural requirements of Rule 11 and section 57.105, and further allowed Plaintiff ten days to file an affidavit setting forth his financial ability to pay. [DE 69, pp. 72-3], Defendant filed a Supplemental Memorandum of Law Addressing Procedural Issues Raised at November 10, 2008 Evidentiary Hearing. [DE 68].
II. Analysis
A. Defendant’s Motion for Sanctions Against Plaintiffs Counsel [DE 53]
Defendant seeks sanctions against Plaintiffs counsel pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and Florida Statute section 57.105. [DE 53]. For the reasons set forth below, this Court recommends granting in part the sanctions sought under § 1927, and denying sanctions under Rule 11 and section 57.105.
1. Section 1927
It is well-established that 28 U.S.C. § 1927 is not a catch-all provision for sanctioning objectionable conduct by counsel.
Peterson v. BMI Refractories,
Bad faith is the touchstone for the imposition of sanctions under § 1927 and it is measured by the attorneys’ objective conduct.
Amlong & Amlong v. Denny’s, Inc.,
Defendant focuses on four acts by Plaintiffs counsel that it argues were reckless, and unreasonably and vexatiously multiplied these proceedings: (1) Plaintiffs failure to dismiss the action with prejudice once his deposition was taken; (2) Plaintiffs withdrawal of his motion to dismiss without prejudice; (3) Plaintiffs continued litigation of the action after that point; and (4) Plaintiffs filing a motion for reconsideration of the order granting summary judgment for Defendant. [DE 53, p. 11]. The Court will consider each in turn.
Plaintiffs failure to dismiss the action with prejudice after his deposition will not support sanctions under § 1927. Plaintiff did attempt to dismiss this action without prejudice after he was deposed. His reason for asking to do so — that he held out hope that Olga Chatters would become available as a witness and provide supporting testimony — was not unreasonable and vexatious. If Defendant had not opposed the motion to dismiss, this action surely would have ended in September 2008 and without the power to subpoena Ms. Chatters once the litigation concluded, it is questionable whether Plaintiff would have ever gotten Ms. Chatters’ sworn testimony. And, if he had, given its marginal value, it is pure speculation whether Plaintiff would have refiled his lawsuit.
Nor did Plaintiffs withdrawal of his motion to dismiss, after Defendant filed its opposition, violate § 1927. Defendant’s argument here is premised on the belief that the motion to dismiss was frivolous and Plaintiffs counsel, by forcing Defendant to file a response, unreasonably and vexatiously multiplied the proceedings. However, as already noted, the motion to dismiss was not frivolous. Moreover, the Court cannot overlook the Defendant’s suggestion in its opposition to the motion to dismiss, that, as an alternative to dismissal without prejudice, the Court could require Plaintiff to continue with discovery in order to resolve the case. Defendant should not ask this Court to sanction Plaintiffs counsel for following the alternate course Defendant suggested. [DE 18, p. 4, DE 69, p. 54],
Defendant makes a third argument that has more merit, that after the Chatter’s deposition Plaintiffs counsel should have recognized that his claim was frivolous and he should have dismissed the complaint at that point. Defendant argues that Plaintiffs counsel acted with objective bad faith when he recklessly pursued his claim, thereby forcing Defendant to file a motion for summary judgment. The Court has carefully considered this argument and concludes that it too does not establish the objective bad faith necessary to impose sanctions under § 1927.
In his response to the Defendant’s summary judgment motion, Plaintiff established three of the four elements of his prima facie case and, as to the fourth element, Plaintiff disputed Defendant’s characterization of Chatter’s testimony regarding the assumption of Plaintiffs duties after his demotion. Plaintiffs counsel relied on a Fifth Circuit case that held that a plaintiff made a prima facie showing of racial discrimination when the plaintiff was demoted and his position eliminated, but
In sum, while Plaintiffs defense to the summary judgment motion was ultimately unsuccessful, Defendant presented no evidence that Plaintiffs counsel was reckless in making that defense. At bottom, Defendant relies on the fact that summary judgment was entered against Plaintiff; and this is not enough to satisfy the heavy burden required to impose sanctions pursuant to § 1927.
Defendant’s final basis for sanctions under § 1927 is Plaintiffs filing of a motion for reconsideration of the order granting Defendant summary judgment. [DE 50]. This Court agrees that the motion for reconsideration lacked any colorable basis, was frivolous and unreasonably and vexatiously multiplied these proceedings. The motion did not address the standard for reconsideration, regurgitated arguments made in opposition to summary judgment and improperly presented new arguments. [See DE 62, Order Denying Plaintiffs Motion for Reconsideration]. Thus, this Court recommends that Defendant be awarded the attorneys’ fees it reasonably incurred in responding to the motion for reconsideration, as a sanction against Plaintiffs counsel.
Unfortunately, Defendant did not provide the Court with the records of the attorneys’ fees spent responding to the motion for reconsideration. 6 [DE 54-2, pp. 20-70]. To avoid further delay in this matter, the Court has reviewed Defendant’s eight page opposition to the motion for reconsideration [DE 51] and finds that eight hours is a reasonable amount of time for the preparation of the opposition. Defendant’s counsel has provided billing records that show that, in 2008, the lead attorneys on this matter billed their time at hourly rates between $220.00 and $245.00. Using a blended hourly rate of $232.50, for eight hours, this Court recommends that Defendant be awarded attorneys’ fees in the amount of $1,860.00 for the time spent responding to Plaintiffs motion for reconsideration.
2. Rule 11
Rule 11 provides for sanctions against counsel who presents to the court a pleading, written motion or other paper that contains claims, defenses or other legal contentions that are not warranted by existing law or by a nonfrivilous argument
Rule 11(c) sets forth the procedural requirements for seeking Rule 11 sanctions. A motion for sanctions must be made separately and “must describe the specific conduct that allegedly violated Rule 11(b).” F.R.C.P. 11(c)(2). The motion must then be served on opposing counsel, but may be filed with the court only if, within 21 days of the date of service, the challenged paper, claim, defense or denial is not withdrawn.
Id.
Recently, the Eleventh Circuit has held that “the service and filing of a motion for sanctions must occur prior to final judgment or judicial rejection of the offending motion. Any argument to the contrary renders the safe harbor provision a mere formality”
Gwynn v. Walker,
Defendant also failed to properly serve the motion. The “draft” motion for sanctions served on Plaintiffs counsel in August 2007 consisted of five pages of case law setting forth the standard for sanctions under Rule 11 and Florida Statute section 57.105, a general statement that the complaint was frivolous, and a statement that “in its accompanying Motion for Fees and Costs, Defendant demonstrates that Plaintiffs complaint was frivolous.” [DE 53-2, p. 2], However, no accompanying Motion for Fees and Costs was served on Plaintiffs counsel with the draft motion.
In contrast, the motion for sanctions now before the Court is 14 pages long and contains numerous facts and arguments not raised in the draft motion. For example, in the factual section of the motion for sanctions, Defendant devotes three and half pages to events which took place after Plaintiffs counsel was served with the draft motion. [DE 53-1, pp. 3-6]. In the argument section, Defendant relies on these post-draft motion events to make new arguments in support of its contention that Plaintiffs actions are sanctionable. [DE 53-1, pp. 9-12], Moreover, the filed motion for sanctions also incorporates Defendant’s motion for fees and costs [DE 54], which was filed at the same time as the Motion for Sanctions, but not, as noted above, provided with the draft motion.
Because of the penal nature of the Rule, the procedural requirements of Rule 11 are strictly construed.
Miller v. Relation-Serve, Inc.,
No. 05-61944-CIV,
Defendant, furthermore, has not established an entitlement to sanctions, on the merits, under Rule 11. After being served with the draft motion for sanctions, Plaintiff attempted to avail himself of the safe harbor provision by moving to dismiss the complaint without prejudice, only to have Defendant oppose this. This Court finds Defendant’s actions to be contrary to the purpose of the safe harbor provision, to allow a party to avoid sanctions by withdrawing or correcting the challenged document.
Walker,
Defendant contends that .because the Rule 11 letter asked Plaintiff to dismiss the action with prejudice, any lesser action (such as dismissal without prejudice) could not satisfy the Rule 11 safe harbor provision. Defendant, however, presents no support for this position. The safe harbor protection of Rule 11 is available to a litigant who “withdraws” the offending paper. F.R.C.P. 11(c). The Rule does not authorize the movant to place conditions on the withdrawal or require the withdrawal to be with prejudice, in order for the non-movant to avoid sanctions. 9 Moreover, as discussed above, Defendant has not shown that Plaintiffs claims were objectively frivolous.
Defendant’s request for sanctions pursuant to Rule 11 should be denied.
3. Section 57.105
Florida Statute section 57.105 provides for the award of a reasonable attorneys’ fee against both the losing party and his counsel on any claim or defense that the losing party or his counsel knew was not supported by material facts or was not supported by existing law.
10
Fla. Stat. § 57.105(1). Like Rule 11, section 57.105 contains a safe harbor provision that re
Florida courts strictly construe statutes, such as section 57.105, that authorize the award of attorneys’ fees in derogation of the common law.
Sunshine Boating Center, Inc. v. Heuer,
Even if Defendant had met the procedural requirements of 57.105, it could not prevail on the merits. The court shall award attorneys’ fees under section 57.105 only where there is an absence of a justiciable issue of either law or fact.
Visoly v. Security Pac. Credit Corp.,
B. Defendant’s Motion for Fees and Costs Against Plaintiff [DE 54]
Defendant seeks to recover its fees and costs against Plaintiff pursuant to Federal Rule of Civil Procedure 54, Local Rule 7.3, 42 U.S.C. § 2000e-5(k), 11 Florida Statute section 760.11(5) and Florida Statute section 57.105. 12
1. Florida Statute section 760.11(5)
The Florida Civil Rights Act, the statute under which Plaintiff brought his claim, provides that “[i]n any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorneys’ fee as part of the costs.” Fla. Stat. § 760.11(5). Florida courts have interpreted this statute as granting a court discretionary authority to award reasonable attorneys’ fees under the guidelines typically used for actions brought pursuant to Title VII of the Civil Rights Act of 1964.
Yoder Brothers, Inc. v. Weygant,
Specifically, “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.”
Christiansburg Garment Co. v. EEOC,
Viewing this action as a whole, the Court finds that Defendant has failed to demonstrate that it is entitled to attorneys’ fees under the FCRA. While Plaintiff ultimately was unable to prove a prima facie case, he introduced evidence supporting three of the four elements. And, as discussed above, Plaintiffs argument regarding the fourth element, replacement by a person outside the protected class, while weak, was not frivolous.
Moreover, Defendant’s contention that Plaintiffs claim was frivolous because “Plaintiff simply ignored the fact that the person who made the decision to demote Plaintiff was the same decision-maker who had ordered his promotion ....” is untrue. [DE 54, p. 14]. In his response to the motion for summary judgment, Plaintiff addressed this issue by citing the controlling Eleventh Circuit case law that found that the fact that the same actor both promoted and demoted an individual did not per se establish a lack of discriminatory intent. [DE 40, p. 10]. Simply put, the fact that Plaintiff was promoted and demoted by the same actor did not render his claim per se frivolous. 13
Thus, Defendant has failed to meet the stringent standard for an award of fees to a defendant under section 760.11(5) and the Court recommends that the Motion for Fees pursuant to section 760.11(5) be denied.
2. Costs
Defendant seeks to recover its costs against Plaintiff as a prevailing party pursuant to Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1920. Rule 54(d) provides that a prevailing party is entitled to costs as a matter of course, while 28 U.S.C. § 1920 enumerates the costs that may be taxed.
See Crawford Fitting Co. v. J.T. Gibbons, Inc.,
a. Fees of the clerk for removal
Defendant seeks to recover $350.00 in fees paid to the clerk for removal of this
b. Fees for service of subpoenas
Defendant is entitled to recover private process server fees.
See For Play Limited v. Bow To Stern Main., Inc.,
No. 05-22002-CIV-KING,
c. Fees for court reporter and transcripts
Defendant seeks to recover $2,023.00 in costs for the depositions of Plaintiff and Olga Chatters. Taxation of deposition costs is authorized by § 1920(2), so long as the depositions were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2);
United States Equal Employment Opportunity Comm. v. W & O, Inc.,
Defendant seeks $30.00 for a CD of Plaintiffs deposition and $25.00 for a CD-ROM/mini transcript of Olga Chatters’ deposition. The cost of mini-transcripts and ASCII transcripts, in addition to regular transcripts, are generally not recoverable absent a showing that they were necessarily obtained for use in the case rather than for the convenience of counsel.
See Johnson v. Comm. Supply Corp.,
2006 No. 05-60510-CIV,
Defendant also seeks $44.70 for copies of the exhibits to Plaintiffs deposition. Copying costs are recoverable under § 1920(4) if the copies were necessarily obtained for use in the case.
See For Play,
Defendant also seeks to recover $32.00 in shipping and handling costs for Plaintiffs deposition and $25.00 in shipping and handling for Chatters’ deposition. [DE 55-2, pp. 2-3]. Shipping and handling charges by the stenographer are not taxable.
See United States v. Davis,
d. Copying costs
Defendant is seeking a total of $111.68 for in-house photocopying costs and $19.20 for external copying costs for copies of Plaintiffs payroll and personnel records from Miami-Dade County. [DE 54-1, pp. 8-9]. Copying costs are recoverable under § 1920(4) if the copies were necessarily obtained for use in the case.
See For Play,
Regarding the in-house copying costs, Defendant does not identify the nature of the copies. [DE 55-2, pp. 11-21], Some courts, but not all, when provided insufficient information regarding copy costs, have declined to award any costs. For example, the court in
Scelta v. Delicatessen Support Serv., Inc.,
The Court has broad discretion in awarding costs.
Mutual Service Ins. Co. v. Frit Indus., Inc.,
Regarding the external copying costs, Defendant filed a receipt from MiamiDade County for $19.20 for the cost of copying Plaintiffs payroll and personnel records [DE 55-2, p. 23] and represents that these records were necessary for defending against Plaintiffs claim. [DE 54-1, p. 9]. Plaintiff does not challenge that representation. Thus, this Court recommends that Defendant recover $47.12 in total copying costs.
Based on the foregoing, this Court recommends that Defendant be awarded $2,423.42 in total costs.
III. Recommendations
Based on the foregoing, this Court recommends that Defendant’s Motion for Sanctions Against Plaintiffs Counsel [DE 53] be GRANTED IN PART and Defendant be awarded $1,860.00 in attorneys’ fees as a sanction against Plaintiffs counsel Erwin Rosenberg. This Court also recommends that Defendant’s Verified Motion to Tax Costs and Attorneys’ Fees Against Plaintiff [DE 54] and Bill of Costs [DE 55] be GRANTED IN PART and Defendant be awarded $2,423.42 in costs against Plaintiff, Tarence Robinson.
IV. Objections
The parties may file written objections to this Report and Recommendation with the Honorable Alan S. Gold no later than March 20, 2009. Failure to timely file objections shall bar the parties from at
RESPECTFULLY RECOMMENDED in chambers at Miami, Florida this 10th day of March, 2009.
Notes
. Judge McAliley stated, "This Court agrees that the motion for reconsideration lacked any colorable basis, was frivolous and unreasonably and vexatiously multiplied these proceedings. The motion did not address the standard for reconsideration, regurgitated arguments made in opposition to summary judgment and improperly presented new arguments.” [DE 70, p. 9]. Judge McAliley therefore recommended "that Defendant be awarded the attorneys' fees it reasonably incurred in responding to the motion for reconsideration, as a sanction against Plaintiff’s counsel.” [Id]. She concluded that eight pages was a reasonable amount of time to spend on preparation of Defendant’s opposition to the motion for reconsideration, and applying a blended hourly rate of $232.50, recommended I award Defendant $1,860.00 in attorneys fees for the time spent responding to Plaintiff's motion for reconsideration. [Id., p. 10],
. Defendant also filed a Bill of Costs in support of its Motion to Tax Costs. [DE 55],
. Plaintiff did not allege that his termination from his temporary FEMA position or Defendant’s failure to rehire him at that time was discriminatory.
. In correspondence with defense counsel, Plaintiff’s counsel conceded that Plaintiff’s testimony alone did not establish a prima facie case, but stated that Plaintiff believed based on conversations with Chatters, that she would testify “that one of the Hispanic quality control persons took over [Plaintiff's] work.” [DE 54-2, p. 12].
. The transcript of that hearing has been filed with the Court. [DE 69].
. Defendant points out that Plaintiff’s counsel acted unreasonably in malting a settlement demand of $10,000,000 on January 29, 2008. [DE 53-2, p. 28], While the Court agrees that this demand was entirely unreasonable, Defendant did not establish that the demand, made after the summary judgment was fully briefed and pending resolution and after mediation had failed, multiplied the proceedings.
. While the last invoice provided by Defendant is dated May 7, 2008, it only includes professional services rendered for the time period ending March 31, 2008, before the motion for reconsideration. [DE 54-2, p. 20].
. Defendant's contention that the holding in
Walker
conflicts with
Baker v. Alderman,
.The two cases cited by Defendant do not support its position. In
Ideal Instr. v. Rivard Instr., Inc.,
. Had Plaintiff refiled his action after a voluntary dismissal, Defendant could have then sought its costs for this action, and a stay until those costs were paid, pursuant to Federal Rule of Civil Procedure 41(d).
. In its Verified Motion to Tax Costs and Attorneys’ Fees Against Plaintiff [DE 54], Defendant also seeks sanctions against Plaintiff pursuant to Florida Statute section 57.105. For the reasons set forth below, this claim should also be denied.
. Although Defendant’s cites § 2000e-5(k) as a basis for recovery, Plaintiff did not bring a discrimination claim under the federal statute and therefore, this statute does not allow for the recovery of fees here.
. See, supra, n. 10.
. Even if this Court were to find that, after Plaintiff's deposition, it became clear that Plaintiff's claim was objectively groundless, this Court would recommend, in the exercise of its discretion under section 760.11(5), the denial of Defendant’s request for fees. The Court finds that Defendant's own actions in opposing Plaintiff’s voluntary dismissal after the Plaintiff's deposition extended the life of this litigation and resulted in the expenditure of the fees Defendant is now seeking to recover.