John C. Shimman v. International Union of Operating Engineers, Local 18

719 F.2d 879, 114 L.R.R.M. (BNA) 2989

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 21, 1983
• Docket: 82-3370
• Status: Published

Opinions

ALLEN, District Judge.

This appeal challenges the district court’s award of attorneys’ fees to the plaintiff-appellee for services rendered during the 1980 appeal of the underlying claim.

The complaint was filed pursuant to 29 U.S.C. § 412 alleging malicious assault and beating of appellee by three individuals who were members of appellant Local 18, in violation of § 101 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411. The complaint also alleged violations of 42 U.S.C. §§ 1985(3) and 1986. It also set forth a claim under Ohio Common Law for assault and battery.

The district court dismissed the civil rights claims but upheld the Landrum-Griffin and Ohio Common Law claims. Judgment was entered by the district court awarding appellee $107,067.99 in compensatory damages and $675,000 in punitive damages. Also, a fee award of $75,000 was granted which the parties stipulated was reasonable but the appellant contested the question of whether they should have been awarded. On the appeal, the court affirmed the imposition of liability against all defendants except the International Union and affirmed the award of compensatory damages and attorneys’ fees in full. The punitive damages award against the three individual defendants and against Local 18 were substantially reduced. See Shimman v. Frank, 625 F.2d 80 (6th Cir.1980).

Following the decision of this court, Shimman filed an application for additional fees in the district court. He sought $56,-178 as attorneys’ fees for the work his counsel performed during the 1980 appeal. The application was documented and supported by a memorandum of law and affidavits. The appellants contested the court’s authority to issue an award but did not challenge the amount claimed. The district court then filed its opinion awarding Shimman the additional attorneys’ fees in the amount requested.

The appellant argues that only the Court of Appeals can make an award of attorneys’ fees for services rendered in that court. The decision of this court in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6 Cir.1979), reh. denied January 17, 1980, holds that district courts are ordinarily the preferable forum to determine attorneys’ fees for services rendered on appeal because of their superi- or access to fact-finding procedures. In light of Northcross and Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), appellants’ contention in this regard is without merit.

Appellant also contends that since its appeal was taken in good faith, there is no authority for levying a fee award against it under the bad faith rationale. This argument overlooks the language of the Supreme Court in Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), which states, in essence, that bad faith may be found not only in the actions that lead to a lawsuit but also to the conduct of the lawsuit. See p. 1951. In the case at bar, it is the bad faith that led to the lawsuit which prompted the Court of Appeals on the original appeal to award fees.

Since there was bad faith in the matters that led to the lawsuit, the purposes of fee-shifting which are warranted where there is bad faith can be completely served only when the plaintiffs secure an award for attorneys’ fees at both the district and the appellate court levels. To deny the appellee a fee at the appellate court level would only partially shift the fee burden to the appellants, and would defeat the essential purpose of the bad faith exception to the general American rule that prevailing parties cannot recover their attorneys’ fees. See Hall v. Cole, 376 F.Supp. 460 (E.D.N.Y.1974).

Argument is made that this court, by directing costs to be borne by the parties on the first appeal, meant to preclude the appellee from recovering any attorneys’ fees for services rendered on that appeal. That argument is resolved by holding that this court was not presented with any issue as to attorneys’ fees to be granted for services upon the first appeal when it entered its order directing the sharing of costs. While the entry of an order directing the sharing of costs under Rule 39(a), Federal Rules of Appellate Procedure, has significance in cases arising under 42 U.S.C. § 1988, where the only grounds upon which an attorney’s fee may be awarded is as part of the costs, such is not the case here where the fees were awarded under the bad faith rule theory.

We, therefore, hold that the district court had authority to award fees for services rendered upon the first appeal, and that Rule 39(a) and the previous order of the Court directing the parties to bear their own costs constitutes no bar to the award.

Finally, appellants contend that there should have been an evidentiary hearing with respect to the amount of attorneys’ fees to be awarded. The problem with that contention is that appellant at no time requested a hearing by local rules, nor did it oppose the amount of fees requested by appellee. The only objection, and the one that it has preserved on appeal, is that District Judge Don Young had no authority to enter a fee award of any amount. Given these facts, there was no error upon the part of Judge Young in refusing to alter or amend his findings concerning the attorneys’ fees, or to grant the appellant a new trial on that issue.

The court observes for the benefit of the parties that this is the final award of attorneys’ fees which will be made in this case.

The judgment of the district court granting attorneys’ fees is hereby Affirmed.