Rice v. Valmont Industries, Inc.

951 F. Supp. 2d 1250, 2013 WL 3063590, 2013 U.S. Dist. LEXIS 84589
CourtDistrict Court, N.D. Oklahoma
DecidedJune 17, 2013
DocketCase No. 12-CV-602-GKF-TLW
StatusPublished

This text of 951 F. Supp. 2d 1250 (Rice v. Valmont Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rice v. Valmont Industries, Inc., 951 F. Supp. 2d 1250, 2013 WL 3063590, 2013 U.S. Dist. LEXIS 84589 (N.D. Okla. 2013).

Opinion

OPINION AND ORDER

GREGORY K. FRIZZELL, Chief Judge.

Before the court is the Motion for Attorney Fees [Dkt. # 16] of defendant Valmont Industries, Inc. (“Valmont”) and the Report and Recommendation of Magistrate Judge T. Lane Wilson [Dkt. # 31] on the motion. Magistrate Judge Wilson recommended that Valmont be awarded $12,586.12 in attorney fees. [Dkt. # 31 at 12]. Plaintiff, Rodney Henry Rice, Jr. (“Rice”), filed an Objection to the Report and Recommendation. [Dkt. # 31].

I. Standard of Review

The district court must conduct a de novo review of the Magistrate Judge’s Report and Recommendation. 28 U.S.C. § 636(b)(1); Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996) (“De novo review is required' after a party makes timely written objections to a magistrate’s report. The district court must consider the actual testimony or other evidence in the record and not merely review the magistrate’s report and recommendations.”). The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

A party wishing to object to a magistrate judge’s report and recommendation must, within 14 days, file “specific written objections” to the report and recommendation. Fed.R.Civ.P. 72(b)(2). The Tenth Circuit has adopted a “firm waiver rule” which provides that the failure to make timely objections to the magistrate judge’s findings or recommendations waives appellate review of both factual and legal questions. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). The Tenth Circuit has also held that “because only an objection that is sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute .... a party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir.1996). Thus, “[a] general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review.” Brooker v. Gould, 2012 WL 6949023 (D.Colo.2012).

II. Procedural Background

Rice sued Valmont, his former employer, in Tulsa County District Court on October 28, 2011, alleging Valmont had violated the Oklahoma State Workplace and Drug and Alcohol Testing Act (the “Workplace Act”), 40 O.S. §§ 554, 555, 558 and 563. Valmont removed the case to federal court based on diversity jurisdiction and subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [Case No. 11-CV-724GKF-TLW, Dkt. ## 2, 8]. The court, sua sponte, remanded the case to state court because Valmont, in its Notice of Removal, failed to affirmatively allege jurisdictional facts supporting its allegation that the amount in controversy was in excess of $75,000. [Id., Dkt. # 16].

Valmont’s motion to dismiss was granted by the state court district judge. Thereafter Rice, with leave of court, filed an [1253]*1253amended petition,1 and Valmont filed another motion to dismiss. Valmont subsequently removed the case to federal court again on October 26, 2012. In its Notice of Removal, Valmont once again asserted the amount in controversy exceeded $75,000, but supported the assertion with an affidavit from its human resources manager and plaintiffs responses to discovery requests.

The court retained the case and granted Valmont’s Motion to Dismiss on October 31, 2012, finding plaintiff had failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). [Dkt. # 11]. The court stated, in pertinent part:

Although the Amended Petition makes the conclusory allegation that plaintiff “was aggrieved by the employer’s alleged violations of the [Workplace Act], the mostly contradictory and confusing factual allegations fail to identify how plaintiff was aggrieved. Plaintiff alleges that he was terminated for “supposedly failing the drug test,” the employer did not have a written drug and alcohol [policy], the [testing procedure] was not random, and the employer failed to contract with a properly licensed facility to perform the testing. However, he also alleges the specimen he provided was never tested. At best, the facts alleged in the Amended Petition state a claim for wrongful termination. They do not, however, state a cognizable claim under [the Workplace Act], Additionally, a private right of action exists only for willful violations of [the Workplace Act.] The Amended Petition lacks even a conclusory allegation that the alleged violations of [the Workplace Act] were willful, intentional or made with deliberate disregard for the requirements of [the Workplace Act], nor does it allege facts supporting such a conclusion.

[Id. at 3-4].

Subsequently, Valmont filed its motion for attorney fees, citing the Workplace Act, 40 O.S. § 563(B), and 28 U.S.C. § 1447(c).2 The Magistrate Judge, in his Report and Recommendation, rejected Valmont’s argument that it was entitled to attorney fees under 28 U.S.C. § 1447(c). However, he found that attorney fees were awardable under the Workplace Act, which provides that “Reasonable costs and attorney fees may be awarded to the prevailing party, whether plaintiff or defendant.” 40 O.S. § 563(B). He concluded that under § 563(B), the decision of whether to award attorney fees was left “to the sound discretion of the trial court,” and that here, an award of attorney fees is proper in. light of the procedural history of the case. [Dkt. # 31 at 9].3

Although Valmont sought attorney fees for the entire amount accrued as a result of the litigation, at the hearing before the Magistrate Judge, counsel for Valmont agreed to limit Valmont’s fee request to those fees incurred after plaintiff amended [1254]*1254his petition- (from July 20, 2012, through October 31, 2012, the date the court dismissed Rice’s amended petition). [Dkt. #27, Minutes of Hearing], The Magistrate Judge found this period, during which requested fees totaled $13,154.00, to be reasonable. The Magistrate Judge recommended a reduction of 25 percent-in three time entries .to account for impermissible block billing, for a total recommended attorney fee award to $12,586.12.

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Bluebook (online)
951 F. Supp. 2d 1250, 2013 WL 3063590, 2013 U.S. Dist. LEXIS 84589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-valmont-industries-inc-oknd-2013.