Ford et al v. 1280 West Condominium Association, Inc. et al, No. 1:2014cv00527 - Document 121 (N.D. Ga. 2015)
Court Description: ORDER granting Defendant's 84 Motion for Attorney Fees, and the Court awards fees of $1,890.00 to Defendant 1280 West Condominium Association and against Plaintiffs. Plaintiff's 86 Motion for Reconsideration is DENIED. Defendant� 39;s 92 Motion for Sanctions is GRANTED. Plaintiff's 94 Motion to Strike is DENIED. Plaintiff's 114 Motion for Extension of Time to Complete Discovery is GRANTED. Plaintiffs' claims against Defendant 1280 West Condominium Asso ciation are DISMISSED. The remaining parties are DIRECTED to confer in an effort to agree on a proposed scheduling order. If the parties cannot agree, the parties are DIRECTED to so inform the Court, and the Court will set a scheduling conference. Signed by Judge Richard W. Story on 5/5/2015. (cem)
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Ford et al v. 1280 West Condominium Association, Inc. et al Doc. 121 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KIBERLY FORD and MILDRED ROBINSON Plaintifs CIVIL ACTION NO. v. 1: 14-CV-00527-RWS 1280 WEST CONDOMINIUM ASSOCIATION, INC., et al., Deendants. ORDER This case comes beore the Court on Deendant's Motion for Attoney's Fees [84], Plaintif's Motion for Reconsideration [86], Deendant's Motion for Sanctions [92], Plaintif's Motion to Strike [94], and Plaintiff's Motion or Extension of Time to Complete Discovery [114]. Ater reviewing the record, the Court enters the following Order. Background This case arises out of Deendants' alleged unlawul housing discrimination against Plaintifs Kimberly Ford and Mildred Robinson. The complete background of the case is laid out in the Court's September 2, 2014 A072A (Rev.8/82) Dockets.Justia.com Order. (See Sept. 2, 2014 Order ("Sept. 2 Order"), Dkt. [83] at 2-8.) In that Order, the Court dismissed Plaintiffs claims for breach of contract based on the deactivation of the building access cards; intentional intererence with potential economic advantage and business relations; and raud. The Court also denied Plaintifs' Motion or Preliminary Injunction [78] and granted Deendant 1280 West Condominium Association, Inc.'s ("Association") Motion for Partial Summary Judgment on Its Counterclaim [38] or Plaintifs' violation of the leasing restrictions in the condominium association's declaration. In that same Order, the Court also granted the Association's Motion to Compel Discovery [81]. Plaintifs move for reconsideration of the Court's rulings. Discussion I. Defendant Association's Motion for Attorney's Fees [84] In the September 2, 2014 Order [83] granting the Association's Motion to Compel [81], the Court ound that the Association was entitled to an award of attoney's ees against Plaintifs for the bringing of the motion. The Association was ordered to ile a statement of ees within 7 days and Plaintifs were allowed to ile objections within 7 days thereater. (Sept. 2 Order, Dkt. 2 A072A (Rev.8/82) [83] at 40.) On September 5, 2014, the Association iled a Statement of Fees (the Statement was entered on the docket as a Motion for Attoney Fees [84]). Rather than ile objections, Plaintifs iled a Motion or Reconsideration [86] on September 12.1 Plaintifs having ofered no valid objections to the ees requested by the Association, the Court inds that the ees are reasonable and awards ees of $1,890.00 to the Association and against Plaintifs. II. Motion for Reconsideration [86] Plaintifs' Motion for Reconsideration [86] disputes a number of the Court's rulings in its September 2, 2014 Order. Plaintifs argue that the Court erred by: (1) dismissing Deendants Martin Paine and Lisa Weibel for insuficient service of process; (2) dismissing the breach of contract claim based on the deactivation of the building access cards; (3) denying Plaintifs' Motion for Preliminary Injunction [78]; (4) granting the Association's Motion to Compel [81]; and (5) granting summary judgment in avor of the Association on Plaintifs' breach of the condominium declaration. A. Legal Standard Under the Local Rules of this Court, "[m]otions or reconsideration shall 'The Court addresses the merits of that Motion in Pt II of this Order. 3 A072A (Rev.8/82) not be iled as a mater of routine practice[,]" but rather, only when "absolutely necessary." LR 7. 2(E), NDGa. Such absolute necessity arises where there is "(1) newly discovered evidence; (2) an intervening development or change in controlling law; or ( 3) a need to correct a cler error of law or act." Byn v. Muphy, 246 F. Supp.2d 1256, 1258-59 (N.D.Ga.200 3). However, a motion for reconsideration may not be used "to present the court with arguments already heard and dismissed or to repackage amiliar arguments to test whether the court will change its mind." Id.at 1259. Furthermore, "[a] motion or reconsideration is not an opportunity or the moving party ...to instruct the court on how the court 'could have done it better' the irst time." Pres. Endangered Areas of Cobb's Histoy. Inc.v.U.S.Army Cops of Eng'r 916 F. Supp.1557, 1560 (N.D.Ga.1995), aff d, 87 F.3d 1242 (11th Cir.1996). B. Analysis All of Plaintifs' arguments are either arguments that were made in erlier brieing or arguments that could have been made in brieing the original motions. Plaintifs do not identiy newly discovered evidence or an intervening development or change in controlling law. In addition, the Court inds that as to each of the rulings Plaintifs challenge, Plaintifs ail to show a 4 A072A (Rev.8/82) need to correct a clear error of law or act. First, the Court inds that no clear error in dismissing Deendants Paine and Weibel or insuficient service of process. As the Court explained, Plaintifs ailed to include any evidence of service in the record beore the Court ruled on the motions to dismiss, even ater Plaintifs indicated at the June 3, 2014 scheduling conerence that they would take steps to perect service. Now, Plaintifs attach two proofs of service or Deendants Paine and Weibel to their Motion or Reconsideration. (See Dkt. [87] at 30, 32.) The process server signed the documents on May 23, 2014, and thus the documents were in Plaintifs' possession before the scheduling conerence and well before the Court ruled on the motions to dismiss, and yet Plaintifs ailed to ile them. What is more, the proof of service or Deendant Weibel shows that Ms. Weibel was not personally served as required under Rule 4(e)(2)(A). Instead, Chelle Gerber accepted service, and there is no indication that Ms. Gerber is authorized to accept service on Ms. Weibel's behalf. Accordingly, service was not efective on Ms. Weibel. For these reasons, the Court properly dismissed Deendants Paine and Weibel. Plaintifs next argue that the Court erred in dismissing their breach of 5 A072A (Rev.8/82) contract claim based on deactivation of the access cards. Plaintifs arguments, however, are largely repetitive of those made on the original motion or are new arguments that could have been made earlier. In any event, the Court inds no clear error of law, and or the reasons stated in its September 2 Order, (Dkt. [83] at 20-23) the Court inds that it properly dismissed the breach of contract claim. Plaintifs also contend that the Court incorrectly denied their Motion for Preliminary Injunction [78]. In that motion, Plaintifs argued that Deendants denied them ull use of their property by deactivating their access cards and requested injunctive relief. The Court denied the motion, inding that Plaintifs had ailed to establish irreparable harm because they still had access to their unit, although it was less convenient. (Sept. 2 Order, Dkt. [83] at 36-38.) The Court urther held that Plaintifs ailed to carry their heavy burden to demonstrate a substantial likelihood of success on the merits of their claims. (Id. at 38.) Plaintifs assert that they are indeed sufering irreparable harm because "irreparable harm may be presumed rom the act of discrimination and violations of the Fair Housing statutes." (Pls.' Br., Dkt. [87] at 13.) Plaintifs cite Rogers v. Windmill Pointe Village Club Ass'n, Inc., 967 6 A072A (Rev.8/82) F.2d 525, 528 (11th Cir. 1992), or the proposition that violations of air housing statutes cause irreparable ham. The court in Rogers indeed held that when such discrimination is shown, "it is reasonable to presume that irreparable injury lows rom the discrimination." Id. (quoting Gresham v. Windrush Partners. Ltd., 730 F.2d 1417, 1423-24 (11th Cir. 1984)). But the court went on to note that the presumption "may be rebutted by evidence that any injury that may occur is not irreparable." Id. The court provided reasons "why housing discrimination results in irreparable injury." Id. (intenal quotation marks omitted). For instance, a person discriminated against could be "in limbo" during litigation, the available housing where discrimination is occurring could become occupied as the case is pending, monetary relief cannot correct the injury completely, and "harm rom housing discrimination includes the loss of sae, sanitary, decent housing." Id. at 528-29. The evidence the parties submitted indicates that Plaintifs are not likely to sufer these hrms because they are not searching for their own housing but instead were attempting to lease a condominium unit that they did not occupy. Moreover, the evidence is that Plaintifs still have access to their unit. To the extent that Deendants have wrongully reused to grnt Plaintifs a permit to 7 A072A (Rev.8/82) lease their unit, such monetary harm is not irreparable. Finally, even if the Court ound that such harm was irreparable, the Court denied the preliminry injunction or the additional reason that Plaintifs had ailed to show a substantial likelihood of success on the merits of their claims. Again, Plaintifs state no valid basis or reconsideration. As for the Court's order compelling discovery, Plaintifs argue that they were not required to respond to the Association's discovery requests. For the reasons discussed in Part III in conjunction with the Association's Motion or Sanctions [92], the Court rejects this argument. Many of Plaintifs' remaining arguments pertain to the Court's grant of summary judgment in avor of the Association on its claim that Plaintifs breached the condominium declaration's restriction on leasing. Once again, Plaintifs' arguments do not ofer valid reasons or reconsideration. Plaintifs dispute the Court's conclusion, arguing that it decided an issue that should have been let for a jury. But as Deendants point out, construing the condominium declaration is a question of law. O.C.G.A. § 13-2-1 ("The construction of a contract is a question of law or the court."). Still, Plaintifs continue to dispute that they leased their unit to r. Paine, arguing that the 8 A072A (Rev.8/82) Fulton But County Plaintifs Plaintifs relevant Magistrate ail leased inquiry declration. Court to show their unit in deciding that had the previously Court found clearly as deined in the whether Plaintifs erred that when condominium violated there was no it analyzed lease. whether declaration-the the terms of the (See Sept. 2 Order, Dkt. [83] at 32-38.) For all these reasons, Plaintifs' Motion or Reconsideration [86] is DENIED. III. Deendant's Motion for Sanctions [92] In the Association's Motion or Sanctions [92], the Association seeks sanctions against Plaintifs based on Plaintifs' ailure to comply with the Court's September 2 Order [83] ordering Plaintifs to "provide complete and veriied responses to the First Interrogatories and the First Document Request" of the Association and concluding that "Plaintifs have waived any opportunity to object to the discovery." (Sept. 2 Order, Dkt. [83] at 39-40.) The Association asserts that Plaintifs ailed to provide complete responses to the discovery and, in several instances, lodged objections to the discovery request. The Association argues that a sanction of dismissal is proper under these circumstances. Under 28 U.S.C. § 1927, 9 A072A (Rev.8/82) Any attoney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisy personally the excess costs, expenses, and atoneys' ees reasonably incurred because of such conduct. The Eleventh Circuit has established three essential requirements for an award of sanctions: The attoney must engage in (1) "unreasonable and vexatious" conduct, which (2) "multiplies the proceedings," and (3) "the dollar amount of the sanction must bear a inancial nexus to the excess proceedings." Peterson v. B.M.I. Reractories, 124 F.3d 1386, 1396 (11th Cir. 1997). Furthermore, courts have inherent powers to impose sanctions on attoneys. See In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008). A inding of bad aith is required before imposing sanctions under either§ 1927 or under the Court's inherent powers. See id.; Amlong & Amlong. P.A. v. Denny's. Inc., 500 F.3d 1230, 1239 (11th Cir. 2006) (holding that under§ 1927, "an attoney multiplies proceedings 'unreasonably and vexatiously' within the meaning of the statute only when the attoney's conduct is so egregious that it is 'tantamount to bad aith' " (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991))). For example, bad aith is shown when "an attoney knowingly or recklessly raises a rivolous argument, or rgues a meritorious claim for the purpose of harassing 10 A072A (Rev.8/82) an opponent. A party also demonstrates bad aith by delaying or disrupting the litigation or hampering enorcement of a court order." Id. (quoting Byne v. Nezhat, 261F.3d 1075, 1121 (11th Cir. 2001)) (intenal quotation marks omitted). Even if a court inds bad aith, however, "dismissal is warranted only upon 'a clear record of delay or willul contempt and a inding that lesser sanctions would not sufice.'" Mingo v. Sugar Cane Growers Co-op. ofFla., 864 F.2d 101, 102 (11th Cir. 1989). In their Response [93],2 Plaintifs assert that they have made complete responses to all discovery requests. This assertion is based, in part, on Plaintifs' contention that the Court's decision that the case would proceed based on Plaintifs' Second Amended Complaint [21] excused Plaintifs rom their obligations to respond to the discovery. In the "Deinitions" section of 2 In addition to iling a Response [93], Plaintifs iled a Motion to Strike Defendants' Motion to Compel [94], arguing that Deendants' motion is "redundant, immaterial, impertinent, or scandalous." (Dkt. [94-1] at 4.) That iling is identical to Plaintifs' Response [93] to the Motion to Compel. While the Court considers Plaintifs' arguments opposing the Motion to Compel, the Court DENIES the Motion to Strike because Rule 12() only authorizes motions to strike material rom a pleading. FED. R. C1v. P. 12(). It is improper to move to strike a motion simply because a pary opposes it. 11 A072A (Rev.8/82) the discovery requests that were served on April 14, 2014, the Association stated, "Complaint means Plaintiffs Complaint iled in this Action on or about February 19, 2014." (Mot. to Compel, Ex. 2 [81-2] at 2; Ex. 3 [81-3] at 2; Ex. 4 [81-4] at 2.) Plaintifs iled a Second Amended Complaint [21] on April 7, 2014, without seeking leave of Court. Deendants iled a Motion to Strike [37] the Second Amended Complaint on April 22, 2014. Ater Plaintifs had iled two Amended Complaints, Deendants iled a Motion for a Rule 16 Conerence [31] so that the Court could determine which Complaint would be the efective Complaint on which the case would proceed. The Court grnted the Motion [54] and held a Rule 16 Conerence on June 3, 2014. At that conerence [74], the Court announced that the case would proceed on the Second Amended Complaint [21]. Thereater, the Association iled its Motion to Compel [81] on July 14, 2014. Plaintifs iled no response to the Motion. On September 2, the Court entered the Order ordering Plaintifs to respond to the discovery. In the same Order, the Court reconirmed that the case was proceeding on the Second Amended Complaint. (Sept. 2 Order, Dkt. [83] at 7.) Thus, when the Court 12 A072A (Rev.8/82) ordered Plaintifs to comply with discovery, the Court was ully aware that the case was not proceeding on the original Complaint iled February 19, 2014, but was proceeding on the Second Amended Complaint. However, the act that the case was proceeding in this manner had no impact on the discovey requests of the Association. First, many of the requests make no reerence to the Complaint. Second, the act that the original Complaint is used by the Association to describe the information sought does not excuse Plaintifs rom their obligation to respond to the request. The position taken by Plaintifs is unreasonable. The iling of an amended complaint in no way excuses a party rom its discovery obligations. If Plaintifs had reasonable objections, they should have been stated in a timely ashion. However, Plaintifs neither responded to the discovery nor the Motion to Compel. The Court thereore inds that Plaintifs' ailure to respond to the discovery and subsequent ailure to comply with the Court's September 2, 2014 Order constitutes bad aith. Plaintifs' ailure to comply with their discovery obligations has caused needless delay, and the Court urther inds that Plaintifs' ailure to comply was willul because, as they argue, they chose not to comply with the Court's Order because they believed they were excused 13 A072A (Rev.8/82) rom their discovery obligations. hat is more, Plaintifs did not raise these issues at the Rule 16 conerence or in response to the Motion to Compel. And, even if Plaintifs were correct that they did not have to respond to discovery requests reerencing the original Complaint, Plaintifs also raised objections to other discovery not related to the Complaint even ater the Court ound that they had waived their opportunity to object. Finally, the Court concludes that no lesser sanction than dismissal of Plaintifs' claims against the Association3 will sufice. An award of attoney's ees would not be an adequate remedy because the Court has already ordered Plaintifs to comply with discovery and to pay attoney's ees, but these measures have ailed to ensure Plaintifs' cooperation. The Court urther inds that attoney's ees would not adequately remedy the resulting delay in this case. Consequently, a sanction of dismissal is appropriate based on Plaintifs' patten of delay nd willul disregard of the Court's Order. See. e.g., Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (inding that ny lesser sanction than dismissal would not have served the interests of justice when 3The discovey, Motion to Compel [81], and Motion or Sanctions [92] were only sought on behalf of the Association. Thereore, the Court only orders dismissal of Plaintifs' claims against the Association. 14 A072A (Rev.8/82) "plaintiffs counsel engaged in a patten of delay and deliberately reused to comply with the directions of the court"); Vaughan v. Apel, 209 F.R.D. 496, 499 (M.D. Fla. 2001) ("Lesser sanctions would not serve justice where plaintiffs misconduct not only constituted a clear record of delay, but also a willul disregard of an order."). For these reasons, Plaintifs' claims against the Association are DISMISSED. IV. Plaintif's Motion for Extension of Time to Complete Discovery [114] Plaintiffs Motion for Extension of Time to Complete Discovery [114] is GANTED. The remaining parties are directed to coner in an efort to agree on a proposed scheduling order. If the parties cannot agree, the parties are directed to inorm the Court, and the Court will set a scheduling conerence. Conclusion For the foregoing reasons, Defendant's Motion for Attoney's Fees [84] is GANTED, and the Court awards ees of $1,890.00 to Deendant 1280 West Condominium Association and against Plaintifs. Furthermore, Plaintiffs Motion or Reconsideration [86] is DENIED, Deendant's Motion for Snctions [92] is GANTED, Plaintiffs Motion to Strike [94] is DENIED, 15 A072A (Rev.8/82) and Plaintiffs Motion for Extension of Time to Complete Discovery [114] is GANTED. Plaintifs' claims against Deendant 1280 West Condominium Association are DISMISSED. The remaining parties are DIRECTED to coner in an efort to agree on a proposed scheduling order. If the parties cannot agree, the parties are DIRECTED to so inform the Court, and the Court will set a scheduling conerence SO ORDERED, this 51. day of . 16 A072A (Rev.8/82) 2015.
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