Hunt v. Lee , 166 F. App'x 669 ( 2006 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-1016
    RON HUNT,
    Plaintiff - Appellee,
    versus
    FRANCIS LEE,
    Defendant - Appellant,
    and
    RITZ CABARET, a/k/a Tracy, Incorporated,
    Defendant.
    Appeal from the United States District Court for the District of
    Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
    (CA-02-2523-WDQ)
    Submitted:    November 30, 2005             Decided:   January 5, 2006
    Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Brenda Grantland, Mill Valley, California, for Appellant. John J.
    Hathway, Thomas Mugavero, WHITEFORD, TAYLOR & PRESTON, L.L.P.,
    Washington, D.C., for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Francis Lee appeals the district court’s order denying
    his petition for attorney’s fees and costs pursuant to 
    42 U.S.C. § 1988
     (2000) and 
    28 U.S.C. § 1927
     (2000).               We affirm.
    Ron     Hunt   and    Francis      Lee     were    owners    of    adult
    entertainment       establishments     otherwise       known     as   “gentlemen’s
    clubs.”    From February to May 2002, Hunt met periodically with Lee
    to discuss his interest in purchasing Lee’s club, the Ritz Cabaret.
    When    these     discussions    began,     Lee   owned       the   club.      While
    negotiations were ongoing, however, Lee pled guilty to conspiracy
    to commit money laundering in violation of 
    18 U.S.C. § 1956
    (h)
    (2000) and the Ritz Cabaret was forfeited to the Government.
    Nevertheless, discussions continued between Hunt and
    Joerg Eichelberger, a man Hunt believed was Lee’s real estate
    agent.     The discussions culminated in an offer from Hunt that
    matched    Eichelberger’s       demands   ($1.6      million    and    six    percent
    buyer’s    premium).       In    the   course     of    their       correspondence,
    Eichelberger referenced the forfeiture, but only as an explanation
    why he could not provide documentation relevant to the proposed
    sale.     Significantly, Eichelberger’s repeated written statements
    suggested that both Lee and Eichelberger retained some control over
    the property, or at the very least, over the solicitation of offers
    to purchase the Ritz Cabaret.
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    In fact, it appears that Lee and Eichelberger did indeed
    solicit such offers.    Leonard Briskman, an employee of the United
    States Marshal’s Service (the “Marshal’s Service”), attested that
    he was assigned the task of managing the disposition of the Ritz
    Cabaret.    Briskman explained that the property was to be sold
    through an online auction service.         Briskman stated that Lee and
    Eichelberger were never authorized to sell the Ritz Cabaret on
    behalf of the Government; however, Briskman acknowledged that Lee
    did solicit several written offers that were passed on to the
    Marshal’s Service via Briskman.         The property was eventually sold
    to the highest online bidder for $1,075,000.
    While Lee was incarcerated, he also signed a contract of
    sale, ostensibly conveying the Ritz Cabaret to Philip Bast Gagne
    and Dennis Alviani for $1.3 million. Lee entered into the contract
    despite Hunt’s then-standing offer of $1.5 million and repeated
    attempts   to   negotiate   with   Eichelberger.        Hunt    alleges    the
    purchasers of the club were Caucasian; Hunt is African-American.
    A former employee of Lee’s also claimed that Lee made disparaging
    remarks about Hunt, including a comment that he preferred the club
    be sold to a “white man.”    On this basis, Hunt filed a complaint in
    the district court, claiming defamation and racial discrimination
    in violation of 
    42 U.S.C. §§ 1981
     and 1982 (2000).
    Lee moved to dismiss Hunt’s complaint, asserting that he
    lacked   contractual   capacity    to   sell   the   property   due   to   the
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    forfeiture.      Because no discovery had been taken, the court was
    unable to resolve the agency issue.            Thus, the court denied the
    motion to dismiss, ordered the parties to conduct discovery on the
    issue of Lee’s capacity to contract, and further ordered that the
    parties   file    dispositive    motions      by    October    2003.      At   the
    conclusion of discovery, the court granted Lee’s motion for summary
    judgment.    The district court nonetheless denied Lee’s motions for
    attorney’s fees and costs.       The instant appeal followed.
    On appeal, Lee claims that the district court erred in
    refusing to award attorney’s fees under 
    42 U.S.C. § 1988
     (2000).
    Under § 1988(b), a district court may award attorney’s fees to the
    prevailing party in a civil rights action.                   A district court’s
    denial of fees is reviewed for abuse of discretion.                    Johnson v.
    City of Aiken, 
    278 F.3d 333
    , 336 (4th Cir. 2002).
    The Supreme Court has held that a prevailing defendant is
    entitled to recover attorney’s fees under § 1988(b) only if the
    lawsuit was frivolous, unreasonable, or groundless, or if the
    plaintiff continued to litigate after it clearly became so.                     See
    Christiansburg Garment Co. v. EEOC, 
    434 U.S. 412
    , 422 (1978).
    Thus, when awarding attorney’s fees under a civil rights statute,
    “prevailing      defendants   are    to   be       treated    differently      from
    prevailing    plaintiffs,     even   though    the    statutory    language     is
    neutral.”    Bryant Woods Inn, Inc. v. Howard County, Md., 
    124 F.3d 597
    , 606 (4th Cir. 1997).            In so ruling, the district court
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    carefully analyzes plaintiffs’ legal claim, the evidence adduced in
    support of that claim, and when plaintiffs should have realized
    that the claim was groundless.         Hutchinson v. Staton, 
    994 F.2d 1076
    , 1079 (4th Cir. 1993).      We cannot conclude that Hunt’s claim
    of racial animus was without legal basis or factual foundation.
    Arguably, the district court referred to Hunt’s complaint
    as “frivolous.”     As this court stated in Arnold v. Burger King
    Corp., 
    719 F.2d 63
    , 68 n.7 (4th Cir. 1983), there are “varying
    degrees of frivolousness.”        The district court noted that the
    complaint was not demonstrably frivolous on the question of racial
    animus, although the claim that Lee had the authority to convey the
    property ultimately lacked a factual underpinning. The totality of
    the district court’s findings indicate that the court did not
    intend, by its use of the term, to connote that Hunt’s claim was so
    utterly baseless as to warrant sanctions.           Where, as here, a case
    is not absolutely groundless, an award of attorney’s fees is not
    compelled.
    Moreover,      a   finding   of   bad    faith   is   a   necessary
    precondition to imposition of fees on an attorney under 
    28 U.S.C. § 1927
     (2000).     See Brubaker v. City of Richmond, 
    943 F.2d 1363
    ,
    1382 n.25 (4th Cir. 1991). Section 1927 provides: “Any attorney or
    other person admitted to conduct cases . . . who so multiplies the
    proceedings   in   any   case   unreasonably      and   vexatiously   may   be
    required by the court to satisfy personally the excess costs,
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    expenses, and attorneys’ fees reasonably incurred because of such
    conduct.”    
    28 U.S.C. § 1927
    .       Although the litigation in this case
    was contentious, we do not find Hunt or his counsel engaged in the
    duplicative or unnecessary filings that would trigger sanctions
    under § 1927.
    “Discretion      allows     district      courts     latitude     in
    determining fee awards--even those that an appellate court might
    initially have set in a different amount.”            See Carroll v. Wolpoff
    & Abramson, 
    53 F.3d 626
    , 631 (4th Cir. 1995).                  Clearly, Hunt’s
    counsel     could   have    conducted       more   comprehensive    pre-filing
    discovery.     Nevertheless, Hunt’s claim of racial animus was not
    frivolous on its face.        Moreover, the threshold legal issue--not
    only Lee’s capacity to contract but his agency to contract--was not
    clearly determined at the outset of the litigation.                Given these
    facts, coupled with the district court’s discretion, we find that
    the district court did not abuse its discretion when it denied
    Lee’s petition.
    Accordingly, we affirm the district court’s denial of
    attorney’s fees and costs.       We dispense with oral argument because
    the facts and legal contentions are adequately presented in the
    materials    before   the    court    and     argument   would   not   aid   the
    decisional process.
    AFFIRMED
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