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Lowe v. STME, LLC

United States District Court, M.D. Florida, Tampa Division

June 28, 2019

KIMBERLY LOWE, Plaintiff,
v.
STME, LLC, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZTOVINGTON UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court in consideration of Defendant STME, LLC's Motion for Award of Attorney's Fees and to Tax Costs (Doc. # 32), filed on May 14, 2019. Plaintiff Kimberly Lowe responded on May 28, 2019. (Doc. # 33). For the reasons that follow, the Motion is denied.

         I. Background

         Lowe worked as a massage therapist for STME from January 13, 2012, until her termination on October 22, 2014. (Doc. # 25 at 2). Believing that the termination was the result of unlawful discrimination related to a planned vacation to Ghana, Lowe filed a charge with the Equal Employment Opportunity Commission (EEOC). (Doc. # 21 at 5). The EEOC subsequently sued on Lowe's behalf for disability discrimination under the Americans with Disabilities Act on April 26, 2017. EEOC v. STME, LLC, 309 F.Supp.3d 1207 (M.D. Fla. 2018).

         The EEOC action was later dismissed with prejudice and Lowe's motion to intervene was denied as moot. Id. at 1216. As a result, Lowe initiated this action in state court, alleging that STME committed associational race/national origin discrimination and retaliation in violation of 42 U.S.C § 1981 and disability discrimination in violation of the Florida Civil Rights Act (FCRA). (Doc. # 1-1 at 4-5). STME removed the case to this Court. (Doc. # 1).

         The Court granted STME's motion to dismiss the initial Complaint without prejudice after hearing oral argument. (Doc. # 16). Lowe filed an Amended Complaint re-alleging the same violations of Section 1981 and the FCRA. (Doc. # 21). The Court then dismissed the associational discrimination claim with prejudice and the retaliation claim without prejudice, but did not dismiss the FCRA claim. (Doc. # 24). Lowe filed a Second Amended Complaint re-alleging the Section 1981 retaliation claim and the FCRA disability discrimination claim. (Doc. # 25). The Court dismissed the retaliation claim with prejudice and remanded the FCRA claim to state court after declining to exercise supplemental jurisdiction over that claim on April 30, 2019. (Doc. # 31).

         STME subsequently filed this Motion on May 14, 2019, seeking an award of attorney's fees under 42 U.S.C. § 1988 and 28 U.S.C. § 1927 in the amount of $27, 372.84 and costs in the amount of $400.00 with interest accruing from the date of the judgment. (Doc. # 32). Lowe responded on May 28, 2019. (Doc. # 33). The Motion is ripe for review.

         II. Discussion

         A. Attorney's Fees under 42 U.S.C. § 1988

         The Court reviews the evidence in the light most favorable to the non-prevailing party when determining whether to award attorney's fees. Johnson v. Florida, 348 F.3d 1334, 1354 (11th Cir. 2003). A court may award attorney's fees to prevailing defendants for Title VII claims “upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Courts have extended that criteria to requests for attorney's fees in cases involving Section 1981 and FCRA claims. Hamilton v. Sheridan Healthcorp, Inc., 700 Fed.Appx. 883, 885 n.1 (11th Cir. 2017).

         Frivolity determinations are made on a case-by-case basis and take into account various factors, including: “(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a fullblown trial on the merits.” Sullivan v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985). The Eleventh Circuit has added a fourth factor: whether a claim is “meritorious enough to receive careful attention and review.” Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991).

         The first three factors are typically met in any case where a defendant prevails on a dispositive motion and the defendant does not offer to settle. See Sullivan, 773 F.2d at 1189 (“Cases where findings of ‘frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment.”). Indeed, the first three factors are met in this case. The Court dismissed both the Amended Complaint's associational discrimination claim and the Second Amended Complaint's Section 1981 retaliation claim with prejudice for failure to state a claim. Additionally, there is nothing to suggest that STME offered to settle.

         However, allegations that prove to be legally insufficient are not necessarily “groundless” or “without foundation.” Hughes v. Rowe, 449 U.S. 5, 15 (1980). A defendant is not automatically entitled to fees simply because the defendant prevailed on a dispositive motion. Ruszala v. Walt Disney World Co., 132 F.Supp.2d 1347, 1351 (M.D. Fla. 2000). The Court must also consider the fourth factor promulgated in Busby to determine whether a claim received careful attention and review despite its dismissal. See Hughes, 449 U.S. at 15 (“Even those allegations that were properly dismissed for failure to state a claim deserved and received . . . careful consideration.”).

         Here, the Court carefully considered the allegations within Lowe's three Complaints by hearing oral argument regarding STME's first motion to dismiss, addressing both claims on the merits, providing legal analysis for dismissal, and twice allowing leave to amend. See Allison v. Parise, No. 8:12-cv-1313-T-17EAJ, 2014 U.S. Dist. LEXIS 60016, at *15-16 (M.D. Fla. Apr. 11, 2014)(explaining that the court carefully considered claims ...


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