IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 01-11569 Summary Calendar _______________
DAVID J. TEMPLE,
Plaintiff-Appellee,
VERSUS
AMERICAN AIRLINES, INC.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Northern District of Texas m 3:99-CV-2289-AH-L _________________________
August 26, 2002
Before HIGGINBOTHAM, SMITH, The magistrate judge, to whom this matter and CLEMENT, Circuit Judges. was referred by consent (hereafter called the “district court” or the “court”), granted JERRY E. SMITH, Circuit Judge:* summary judgment for American Airlines, Inc. (“American”), but declined to shift fees under 42 U.S.C. § 12205 or 28 U.S.C. § 1927. Finding no reversible error, we affirm. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be * published and is not precedent except under the (...continued) limited circumstances set forth in 5TH CIR. R. 47.5.4. interrogatory by pointing out that Temple’s I. failure to file suit within 90 days after receiving Temple asserted three causes of action a right to sue letter would bar his claim. against American: (1) wrongful discharge and a failure to accommodate under the Americans After Temple’s deposition, American did with Disabilities Act (“ADA”), 42 U.S.C. not immediately move for summary judgment, § 12111 et seq.; (2) wrongful discharge in but, instead, moved for leave to amend and violation of the Family Medical Leave Act add the affirmative defense of mitigation. The (“FMLA”), 29 U.S.C. § 2601 et seq.; and court granted the motion to amend and gave (3) promissory estoppel. American filed an Temple an opportunity to amend his answer, which included the affirmative defense complaint. American substituted counsel, that Temple’s ADA “claims are barred by the which further delayed the filing of its summary applicable statute of limitations.” In a joint judgment motion, and the district court status report, American noted that the FMLA extended the deadline for filing dispositive claim lacked merit because the FMLA does motions. not cover leaves of absence to care for a sick brother-in-law. American moved for summary judgment, alleging many alternative grounds for dismissal American deposed Temple, who testified but making only three arguments relevant to that he “guess[ed]” that he received the right this appeal. First, it asserted that Temple had to sue letter on July 7, 1999, the same day the failed to sue within ninety days from when he EEOC had signed and dated the letter. received a right to sue letter, making his ADA Temple stated that American granted his claim untimely. Second, American argued that requests for two leaves of absence so he could the FMLA does not guarantee leaves of visit his sick brother-in-law and attend the absence to care for a sick brother-in-law or to funeral. Temple admitted that the leaves of attend his funeral. Finally, American relied on absence were not because he or his parents, Temple’s testimony that he had not relied on spouse, or children suffered a serio us illness, promises made by American’s managers. or because of the birth or adoption of a child. Temple sought to dismiss without prejudice under FED. R. CIV. P. 41(a)(2); the court Temple testified, however, that he request- refused. Temple filed a response to the motion ed the leave of absence so that he could “take for summary judgment, conceding his “federal care of [his] kids” while his wife attended to discrimination claims.” He filed a motion for her terminally ill brother. Temple reported additional discovery under FED. R. CIV. P. that an American supervisor instructed him to 56(f) to explore his promissory estoppel claim. “go ahead and take care of the family situation On August 17, 2001, the district court granted first, and we’ll discuss that [training schedule] American summary judgment and denied when you get back.” Temple also admitted, Temple’s rule 56(f) motion. however, that he had no idea whether the leaves of absence would be held against him American then moved for attorneys’ fees and that he did not rely on a manager’s under two statutes. First, it sought fees as a promises. American responded to an “prevailing party” under the ADA, 42 U.S.C.
2 § 12205. American emphasized that it had We have applied the same standards to the obtained summary judgment because Temple ADA’s fee-shifting provision for “prevailing filed his claims two days after the filing parties” that we apply to the almost-identical deadline had lapsed. Second, American fee-shifting provisions of title VII and 42 invoked 28 U.S.C. § 1927 to punish Temple U.S.C. § 1988. No Barriers, 262 F.3d at 498. for “unreaso nably” and “vexatiously” Under all three statutes, “a district court may multiplying claims or proceedings. American in its discretion award attorney’s fees to a pre- argued that Temple unnecessarily forced them vailing defendant . . . upon a finding that the to move for summary judgment. plaintiff’s action was frivolous, unreasonable, or without foundation.” Christiansburg The court described Temple’s actions as Garment Co. v. EEOC, 434 U.S. 412, 421 “disturbing” but refused to grant the motion. (1978). The court explained that American could have provided Temple with notice that his claims American argues that because the ADA’s lacked merit before moving for summary judg- filing requirements plainly barred Temple’s ment; the court also reasoned that Temple’s claim, his suit was frivolous and “without claims had too firm a basis in fact and law to foundation.” We addressed this same justify shifting fees. argument under title VII’s fee-shifting provision in Nilsen v. City of Moss Point, II. Miss., 621 F.2d 117, 122 (5th Cir. 1980), The ADA permits “prevailing parties” to holding that a district court did not abuse its recover attorneys’ fees.1 We review for abuse discretion by denying fees to a defendant that of discretion decisions shifting fees under the had prevailed on an exhaustion defense. The ADA. No Barriers, Inc. v. Brinker Chili’s plaintiff in Nilsen sued over seven months after Texas, Inc., 262 F.3d 496, 498 (5th Cir. receiving an EEOC letter, and we affirmed the 2001). “A district court abuses its discretion dismissal on that basis. Id. 120-21. We also if it awards sanctions based on an erroneous deferred, however, to the district court’s view of the law or on a clearly erroneous finding that the plaintiff had not violated the assessment of the evidence.” Walker v. City of standard set forth in Christianburg and upheld Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999). the denial of fees. Id. at 122.
American argues that Temple’s ADA claim 1 Section 12205 states: became “frivolous” when his deposition testimony established the date on which he had In any action or administrative received his right to sue letter.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 01-11569 Summary Calendar _______________
DAVID J. TEMPLE,
Plaintiff-Appellee,
VERSUS
AMERICAN AIRLINES, INC.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Northern District of Texas m 3:99-CV-2289-AH-L _________________________
August 26, 2002
Before HIGGINBOTHAM, SMITH, The magistrate judge, to whom this matter and CLEMENT, Circuit Judges. was referred by consent (hereafter called the “district court” or the “court”), granted JERRY E. SMITH, Circuit Judge:* summary judgment for American Airlines, Inc. (“American”), but declined to shift fees under 42 U.S.C. § 12205 or 28 U.S.C. § 1927. Finding no reversible error, we affirm. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be * published and is not precedent except under the (...continued) limited circumstances set forth in 5TH CIR. R. 47.5.4. interrogatory by pointing out that Temple’s I. failure to file suit within 90 days after receiving Temple asserted three causes of action a right to sue letter would bar his claim. against American: (1) wrongful discharge and a failure to accommodate under the Americans After Temple’s deposition, American did with Disabilities Act (“ADA”), 42 U.S.C. not immediately move for summary judgment, § 12111 et seq.; (2) wrongful discharge in but, instead, moved for leave to amend and violation of the Family Medical Leave Act add the affirmative defense of mitigation. The (“FMLA”), 29 U.S.C. § 2601 et seq.; and court granted the motion to amend and gave (3) promissory estoppel. American filed an Temple an opportunity to amend his answer, which included the affirmative defense complaint. American substituted counsel, that Temple’s ADA “claims are barred by the which further delayed the filing of its summary applicable statute of limitations.” In a joint judgment motion, and the district court status report, American noted that the FMLA extended the deadline for filing dispositive claim lacked merit because the FMLA does motions. not cover leaves of absence to care for a sick brother-in-law. American moved for summary judgment, alleging many alternative grounds for dismissal American deposed Temple, who testified but making only three arguments relevant to that he “guess[ed]” that he received the right this appeal. First, it asserted that Temple had to sue letter on July 7, 1999, the same day the failed to sue within ninety days from when he EEOC had signed and dated the letter. received a right to sue letter, making his ADA Temple stated that American granted his claim untimely. Second, American argued that requests for two leaves of absence so he could the FMLA does not guarantee leaves of visit his sick brother-in-law and attend the absence to care for a sick brother-in-law or to funeral. Temple admitted that the leaves of attend his funeral. Finally, American relied on absence were not because he or his parents, Temple’s testimony that he had not relied on spouse, or children suffered a serio us illness, promises made by American’s managers. or because of the birth or adoption of a child. Temple sought to dismiss without prejudice under FED. R. CIV. P. 41(a)(2); the court Temple testified, however, that he request- refused. Temple filed a response to the motion ed the leave of absence so that he could “take for summary judgment, conceding his “federal care of [his] kids” while his wife attended to discrimination claims.” He filed a motion for her terminally ill brother. Temple reported additional discovery under FED. R. CIV. P. that an American supervisor instructed him to 56(f) to explore his promissory estoppel claim. “go ahead and take care of the family situation On August 17, 2001, the district court granted first, and we’ll discuss that [training schedule] American summary judgment and denied when you get back.” Temple also admitted, Temple’s rule 56(f) motion. however, that he had no idea whether the leaves of absence would be held against him American then moved for attorneys’ fees and that he did not rely on a manager’s under two statutes. First, it sought fees as a promises. American responded to an “prevailing party” under the ADA, 42 U.S.C.
2 § 12205. American emphasized that it had We have applied the same standards to the obtained summary judgment because Temple ADA’s fee-shifting provision for “prevailing filed his claims two days after the filing parties” that we apply to the almost-identical deadline had lapsed. Second, American fee-shifting provisions of title VII and 42 invoked 28 U.S.C. § 1927 to punish Temple U.S.C. § 1988. No Barriers, 262 F.3d at 498. for “unreaso nably” and “vexatiously” Under all three statutes, “a district court may multiplying claims or proceedings. American in its discretion award attorney’s fees to a pre- argued that Temple unnecessarily forced them vailing defendant . . . upon a finding that the to move for summary judgment. plaintiff’s action was frivolous, unreasonable, or without foundation.” Christiansburg The court described Temple’s actions as Garment Co. v. EEOC, 434 U.S. 412, 421 “disturbing” but refused to grant the motion. (1978). The court explained that American could have provided Temple with notice that his claims American argues that because the ADA’s lacked merit before moving for summary judg- filing requirements plainly barred Temple’s ment; the court also reasoned that Temple’s claim, his suit was frivolous and “without claims had too firm a basis in fact and law to foundation.” We addressed this same justify shifting fees. argument under title VII’s fee-shifting provision in Nilsen v. City of Moss Point, II. Miss., 621 F.2d 117, 122 (5th Cir. 1980), The ADA permits “prevailing parties” to holding that a district court did not abuse its recover attorneys’ fees.1 We review for abuse discretion by denying fees to a defendant that of discretion decisions shifting fees under the had prevailed on an exhaustion defense. The ADA. No Barriers, Inc. v. Brinker Chili’s plaintiff in Nilsen sued over seven months after Texas, Inc., 262 F.3d 496, 498 (5th Cir. receiving an EEOC letter, and we affirmed the 2001). “A district court abuses its discretion dismissal on that basis. Id. 120-21. We also if it awards sanctions based on an erroneous deferred, however, to the district court’s view of the law or on a clearly erroneous finding that the plaintiff had not violated the assessment of the evidence.” Walker v. City of standard set forth in Christianburg and upheld Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999). the denial of fees. Id. at 122.
American argues that Temple’s ADA claim 1 Section 12205 states: became “frivolous” when his deposition testimony established the date on which he had In any action or administrative received his right to sue letter. Temple’s proceeding commenced pursuant to this revelation may have supported American’s chapter, the court or agency, in its motion for summary judgment, but it fell far discretion, may allow the prevailing party, other than the United States, a reasonable short of the epiphany that American describes. attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private Temple first testified that he did not individual. remember when he received the letter. American then confronted him with a copy of 42 U.S.C. § 12205.
3 the letter that he had faxed to another person, If Temple’s deposition testimony so plainly and the fax indicated he had sent it on July 7. established the date he received the letter that Temple responded by saying that he it barred Temple’s claim, American could have “guess[ed]” he received the right to sue letter sought leave to file a short motion for on the same date the EEOC officer signed it, summary judgment. American’s counsel but he qualified that by saying that he really thereby would have avoided altogether most of did not remember receiving it. the co sts of filing for summary judgment. Taking this step, rather than submitting a so- The summary judgment evidence did prove phisticated motion for summary judgment sup- that Temple received the letter on July 7, but ported by over 200 pages of documents, the evidence was not overwhelming. His would have reduced attorneys’ fees charged to counsel reasonably could have waited for the defend against the ADA claim. summary judgment motion to determine the quantity of admissible evidence supporting III. American’s allegations about the date of American appeals the denial of fees under receipt. 28 U.S.C. § 1927, a matter we review for abuse of discretion. Mercury Air Group, Inc. American fully developed its exhaustion v. Mansour, 237 F.3d 542, 549 (5th Cir. defense only in the motion for summary 2001). According to § 1927, a court may shift judgment. It raised the ADA’s time limits reasonable fees to “any attorney” “who so generally as an affirmative defense in its multiplies the proceedings in any case answer, but it had not specifically identified the unreasonably and vexatiously.”2 The court ninety-day filing requirement. Similarly, in the must find that the sanctioned attorney deposition, American asked Temple whether multiplied the proceedings both he had received the right to sue letter on the “unreasonably” and “vexatiously.” FDIC v. same day it was signed. After Temple replied Calhoun, 34 F.3d 1291, 1297 (5th Cir. 1994). that he “guess[ed]” so, American asked no Proving that a counsel’s behavior was both further questions. American’s interrogatory “vexatious” and “unreasonable” requires response described his ADA claim as time “evidence of bad faith, improper motive, or barred. reckless disregard of the duty owed to the
An ADA plaintiff does not have an 2 obligation to dismiss his claim where the Section 1927, in full, provides: defendant has unearthed facts, but has not developed its argument or theory, Any attorney or other person admitted demonstrating that the claim is time barred. to conduct cases in any court of the United States or any Territory thereof who so mul- The plaintiff may wait until the defendant tiplies the proceedings in any case advances a legal argument, either in the form unreasonably and vexatiously may be of a motion to dismiss or a motion for required by the court to satisfy personally summary judgment. After considering that the excess costs, expenses, and attorneys’ argument and evidence, Temple accepted fees reasonably incurred because of such American’s proof of the date of receipt and conduct. conceded the claim. 28 U.S.C. § 1927.
4 court.” Edwards v. Gen. Motors Corp., 153 On the FMLA claim, Temple advanced a F.3d 242, 246 (5th Cir. 1992). legal argument or theory, although it was not Section 1927 only authorizes shifting fees very compelling. By its terms, the FMLA associated with “the persistent prosecution of guarantees leave for employees to care for a meritless claim.” Browning v. Kramer, 931 spouses, parents, and children with “serious F.2d 340, 345 (5th Cir. 1991) (citation health condition[s]”; the statute does not en- omitted) (internal quotation omitted). The sure leave to care for sick brothers-in-law. 29 courts often use repeated filings, despite U.S.C. § 2612(a)(1). One other litigant has warnings from the court, or other proof of argued that courts should extend the FMLA’s excessive litigiousness to justify sanctions. protections to other relatives similar to those Nat’l Ass’n of Gov’t Employees v. Nat’l Fed’n expressly covered.3 of Fed. Employees, 844 F.2d 216, 224 (5th Cir. 1988). We have interpreted § 1927 as We have not addressed the question wheth- penal and have construed it in favor of the er the FMLA’s list of covered relatives is ex- sanctioned party. FDIC v. Connor, 20 F.3d haustive or illustrative, and Temple could have 1376, 1384 (5th Cir. 1994). This construction made a (weak) argument that the list is merely prevents the courts from dampening “the illustrative. He also testified that he was legitimate zeal of an attorney in representing caring for his children during the leaves of her client.” Browning v. Kramer, 931 F.2d absence. He could have relied on the 340, 344 (5th Cir. 1991). illustrative list argument in combination with his actions in caring for his children to make a American contends that Temple should weak argument for extending the FMLA to have known that his case lacked merit after his this case. This dubious theory of recovery was deposition, which revealed the ADA claim as not frivolous enough to warrant § 1927 time barred, the absence of facts supporting an sanctions. FMLA claim, and the shaky grounds for prom- issory estoppel. Section 1927, however, Temple had some evidence to support his requires more than knowledge of a case’s promissory estoppel claim. Although he did weaknesses, even if fatal. American has not not advance proof of subjective reliance, he pointed to evidence of bad faith, improper mo- did testify that an American supervisor had tive, or a reckless disregard of duties owed to told him not to worry about his job during his the court. Edwards, 153 F.3d at 246. We ex- absence. Despite the fact that the summary amine each claim in turn and find that none judgment evidence failed to support a was outlandish or baseless enough to shift the promissory estoppel claim, Temple was costs for the motion for summary judgment: justified in forcing American to file for summary judgment. On the ADA claim, Temple had some basis for waiting until American fleshed out its ex- haustion argument in the motion for summary judgment. We decline to shift fees under 3 Krohn v. Forsting, 11 F. Supp. 2d 1082, § 1927 for substantially the same reasons we 1091-92 (E.D. Mo. 1998) (rejecting argument that declined to shift fees under the ADA’s more the FMLA guaranteed leave of absence to care for lenient standard. grandmother who had not served as primary caregiver).
5 The evidence on all three claims, although weak, does not justify shifting fees for American’s motion for summary judgment. Where the plaintiff has some evidence to support his claim, § 1927 usually does not require the plaintiff to dismiss voluntarily. Jackson Marine Corp. v. Harvey Barge Repair, Inc., 794 F.2d 989, 992 (5th Cir. 1986). The plaintiff may merely refuse to oppose the summary dismissal of those weak claims. Id. The district court, which watched events unfold firsthand, did not abuse its discretion by refusing to grant fees under § 1927.
AFFIRMED.