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BAKER v. AMERICAN BROADCASTING CO.

April 20, 1984

FESTUS A. BAKER, Plaintiff, against AMERICAN BROADCASTING COMPANY, Defendant.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM and ORDER

WEINSTEIN, Ch. J.:

 Defendant, American Broadcasting Company moves for attorney's fees pursuant to 42 U.S.C. § 1988, following judgment for ABC after a non-jury trial. Because the plaintiff's claim was neither frivolous nor vexatious, the motion for fees is denied. The motion exposed a serious defect in the court's rules governing attrorneys appointed from our Pro Bono Panel.For the reasons stated below, the rules have been modified to give greater protection to lawyers who generously donate their services to assist poor people in our court. The case reveals some basic problems when compassion and concern for equal justice are substituted for market place economics in supplying legal services.

 I. FACTS

 Plaintiff pro se filed a claim against ABC, two of its employees and an employee of Bell Agency Security, charging race and national origin discrimination in his dismissal from his job as a security guard at ABC. Counsel was appointed for him from the Eastern District Pro Bono Panel.

 Prior to trial, plaintiff voluntarily dismissed the actions against the two ABC employees and settled with Bell Agency's employee for $3,500.

 At the conclusion of plaintiff's case the court granted defendant's motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and entered judgment for ABC. The evidence established that plaintiff had failed to do his job and was fired for that reason alone. On plaintiff's attorney's motion to reduce costs in view of plaintiff's indigency, the court limited costs to $250. No further motions were made or findings of fact requested.

 Subsequently, defendant filed this motion for attorney's fees, seeking to recover the $3,500 Mr. Baker received in settlement from one of the defendants. The total legal fees of ABC in defending the case were $1250,00. Plaintiff's pro bono counsel sought some $5,500 from the Court's pro bono funds for out of pocket expenses, primarily those incurred in taking depositions.

 II. LAW

 Plaintiff opposes defendant's motion for fees on the ground that it seeks to alter or amend the judgment and this right was waived when the motion was not made within ten days of the close of trial. A motion for attorney's fees under section 1988 of title 421 is not a motion to alter or amend a judgment subject to Rule 59(e) of the Federal Rules of Civil Procedure's time limitations. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982). The objection on procedural grounds is without merit.

 A defendant who prevails in an employment discrimination action is entitled to attorney's fees if plaintiff's claim was "frivolous, unreasonable, or groundless." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978); Prate v. Freedman, 583 F.2d 42, 46 (2d Cir. 1978). The district court's power to award fees is discretionary and the fact that plaintiff has not prevailed on the merits does not mean that fees are properly assessed in favor of the victorious party. Christiansburg, at 421-22, 98 S. Ct. at 700.

 Plaintiff's claims were neither frivolous nor groundless. Although he did not prevail at trial and the court found much of his testimony not credible, plaintiff did produce witnesses whose testimony provided some support for his claims. There is little doubt that many competent and ethical members of the bar would have certified his complaint as "well grounded in fact and . . . warranted by existing law" under Rule 11 of the Federal Rules of Civil Procedure.

 In addition to arguing that plaintiff's claim was frivolous, defendant relies on an unjust enrichment theory, claiming that plaintiff should not be entitled to retain the $3500 obtained in settlement. In opposing the motion, plaintiff's counsel indicated that in a routine case his firm would have recovered part of their costs out of that settlement amount. It was his opinion, however, that the Eastern District Rules Governing Procedures for Appointment of Attorneys in Pro Se Civil Actios prohibited him from doing so in this case.

 While counsel's reading of the then rule was correct, the rule never was intended to prohibit recovery of expenses out of any settlement or judgment. As a result of this case the rule has been modified, as indicated below by the italicized portions, to make it ...


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