Yvett Smith v. Atlanta Postal Credit Union

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12060 ELEVENTH CIRCUIT
SEPTEMBER 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01833-CV-CC-1
YVETT SMITH,
Plaintiff-Appellant,
versus
ATLANTA POSTAL CREDIT UNION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 28, 2009)
Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Yvett Smith appeals the district court’s order denying her motion for recusal,
granting in part defendant-appellee, Atlanta Postal Credit Union’s (APCU), motion
for attorney’s fees, and granting APCU’s motion to dismiss the action with
prejudice.1 Following a brief recitation of the facts, we address each of these
issues in turn.
I. BACKGROUND
Smith, proceeding pro se, filed suit against APCU seeking $10 million in
damages for alleged employment discrimination in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12112. After Smith refused to sign a form
authorizing the release of her medical records and provided inadequate responses
to APCU’s initial discovery requests, APCU moved the court for an order to show
cause or, in the alternative, an award of attorney’s fees associated with bringing the
motion. The court declined to issue an order to show cause, but it did order Smith
to sign the medical release form, respond fully to APCU’s discovery requests, and
reimburse APCU for expenses reasonably incurred in making the motion.2 In its
order, dated July 1, 2008, the court found Smith’s repeated noncompliance with the
Federal Rules of Civil Procedure and the applicable Local Rules to be without
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Smith also raises arguments concerning the case’s underlying merits, which were not pertinent
to the district court’s order and are irrelevant to this appeal.
2
APCU filed a petition showing the amount of attorney’s fees requested on July 10, 2008.
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substantial justification, and it warned her that failure to comply with the order
would result in sanctions that could include the dismissal of her lawsuit.
Four weeks later, APCU filed a motion to dismiss the action with prejudice
pursuant to Federal Rules of Civil Procedure 37(b)(2) and 41(b). APCU alleged
that although Smith had finally authorized the release of her medical records, she
had not properly responded to its discovery requests by the deadlines established in
the district court’s July 1 order.
While APCU’s motion to dismiss was pending, Smith filed a motion to
“remove” the judge from her case. She argued that the judge’s previous rulings in
APCU’s favor and the court’s delays in responding to her motions demonstrated
bias against her and warranted the assignment of a new judge.
The district court issued its final order on March 19, 2009. The court
construed Smith’s motion to remove the judge as a motion for recusal under 28
U.S.C. § 455 and denied it on the ground that adverse rulings and delays did not
constitute bias. The court also awarded APCU $3,880 for attorney’s fees it had
incurred in bringing its motion to show cause. Finally, after finding that Smith had
willfully failed to comply with her discovery obligations, the procedural rules
applicable to her case, and the district court’s order of July 1, 2008, the court
granted APCU’s motion to dismiss with prejudice. This appeal followed.
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II. RECUSAL
We review the district court’s refusal to recuse for abuse of discretion.
Gwynn v. Walker (In re Walker), 532 F.3d 1304, 1308 (11th Cir. 2008). A “judge
of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Generally, only
personal bias stemming from extrajudicial sources is sufficient to disqualify a
judge. See 28 U.S.C. §§ 144, 455(b)(1); Hamm v. Members of Bd. of Regents, 708
F.2d 647, 651 (11th Cir. 1983). An exception exists for judicial conduct
demonstrating “such pervasive bias and prejudice that it constitutes bias against a
party,” but neither “rulings adverse to a party, nor friction between the court and
counsel constitute[s] pervasive bias.” Hamm, 708 F.2d at 651 (citations omitted).
On the contrary, “the standard is whether an objective, fully informed lay observer
would entertain significant doubt about the judge’s impartiality.” Christo v.
Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000).
Smith argues that the district court abused its discretion by denying her
motion for recusal. She alleges that the judge acted as an attorney for the defense
when he granted APCU’s motions and denied hers. She also claims that the judge
acted maliciously in refusing to recuse himself and in dismissing her case after she
questioned his impartiality. She has failed, however, to state specific facts that
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would establish personal or pervasive bias. Rulings against one party in favor of
another, without more, do not require a judge to disqualify himself, Hamm, 708
F.2d at 651, and Smith has not alleged any facts that would lead a reasonable and
objective observer to question the district court judge’s impartiality. The district
court, therefore, did not abuse its discretion in denying the motion for recusal.
III. ATTORNEY’S FEES
We review the imposition of sanctions under Rule 37 for an abuse of
discretion. Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146–47
(11th Cir. 2006). We likewise review an award of attorney’s fees for abuse of
discretion. Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008).
Smith contests the district court’s award of attorney’s fees on the grounds
that they were excessive and that the associate who worked on APCU’s motion to
show cause did not enter an appearance in the case until after the motion had been
filed. She also argues that the district court should have made a finding of bad
faith before imposing sanctions.
The district court in this case calculated APCU’s attorney’s fees using the
lodestar method, multiplying defense counsel’s reasonable hours by a reasonable
hourly rate. In determining the reasonable rate, the district court properly
considered “the prevailing market rate in the relevant legal community for similar
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services by lawyers of reasonably comparable skills, experience, and reputation.”
Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). The court
also excluded from APCU’s initial fee calculation any “hours that were not
reasonably expended,” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citation
and quotation marks omitted), subtracting 2.5 hours from the time entries
submitted by defense counsel. There is a “strong presumption that the lodestar
figure . . . represents a ‘reasonable’ fee,” Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986), and nothing in the
record before us indicates that the district court abused its discretion in calculating
and adhering to the lodestar in this case.
Smith’s argument that the district court should not have awarded fees for
time expended by the associate because he had not yet entered an appearance is
similarly unavailing. Neither the Federal Rules of Civil Procedure nor the district
court’s Local Rules require every attorney working on a case to enter an
appearance before the court. Cf. Fed. R. Civ. P. 11(a) (“Every pleading, written
motion, and other paper must be signed by at least one attorney of record in the
attorney’s name . . . .” (emphasis added)); N.D. Ga. R. 83.1(D)(1) (“Any other
attorney who signs a subsequent pleading or paper on behalf of a party must file a
notice of appearance with the clerk.” (emphasis added)).
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With respect to Smith’s contention that the imposition of sanctions required
a finding of bad faith, Rule 37 fee awards, unlike sanctions imposed pursuant to
the court’s inherent powers, do not require such a finding. Compare DeVaney v.
Continental Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (“[T]he 1970
amendments [to Rule 37] were specifically enacted to eliminate the possibility that
a bad faith requirement would be read into the rule . . . .”), with Thomas v. Tenneco
Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002) (“[B]efore a court can
impose sanctions against a lawyer under its inherent power, it must find that the
lawyer’s conduct constituted or was tantamount to bad faith.” (citation and
quotations marks omitted)).
District courts granting motions to compel discovery shall “require the party
or deponent whose conduct necessitated the motion . . . to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees,”
unless the “circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5); see also Fed. R. Civ. P. 41(b)(2)(C). Pro se litigants are “subject to
sanctions like any other litigant,” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989), and the district court here found no substantial justification for Smith’s
resistance to discovery. It therefore did not abuse its discretion by ordering her to
pay APCU’s attorney’s fees.
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IV. DISMISSAL WITH PREJUDICE
“This Court reviews dismissals under Fed. R. Civ. P. 41 and 37 for abuse of
discretion.” Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir.
1999). Rule 37 permits the district court to dismiss an action for failure to
cooperate during discovery or failure to comply with a court order. Fed. R. Civ. P.
37(b)–(d). Rule 41 similarly allows the dismissal of an action when “the plaintiff
fails to . . . comply with these rules or a court order.” Fed. R. Civ. P. 41(b).
“Dismissal under Rule 41(b) is appropriate where there is a clear record of ‘willful’
contempt and an implicit or explicit finding that lesser sanctions would not
suffice.” Gratton, 178 F.3d at 1374.
In this case, Smith repeatedly failed to comply with the Federal Rules of
Civil Procedure and refused to cooperate during the discovery process. For
instance, she filed several improper and legally insufficient motions to compel
discovery without first making any good faith attempt to confer with opposing
counsel. While APCU’s motion to dismiss was pending, Smith also refused to
answer any questions during her deposition that she deemed “personal,” including
routine inquiries about her employment, marital status, medical history, and
involvement in other litigation. Moreover, the district court found her “willful”
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failure to make adequate, timely responses to APCU’s initial discovery requests a
sign of “bad faith and blatant disregard” of the court’s July 1, 2008 order.
A district court does not abuse its discretion by dismissing an action with
prejudice “[w]hen a party demonstrates a flagrant disregard for the court and the
discovery process.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481
(11th Cir. 1982). Smith’s conduct during the course of this litigation evinced a
flagrant disregard for both her obligations as a litigant and the procedural rules
governing her case. In light of her recalcitrance, the district court made an explicit
finding that no lesser sanction than dismissal was appropriate. Having already
warned the plaintiff and attempted to deter future abuses of the discovery process
by imposing the lesser sanction of attorney’s fees, the district court did not abuse
its discretion in dismissing Smith’s action with prejudice.
V. CONCLUSION
For the foregoing reasons, the district court did not abuse its discretion in
denying Smith’s motion for recusal, awarding APCU attorney’s fees, and
dismissing the action with prejudice. The district court’s order of March 19, 2009,
is therefore
AFFIRMED.
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