Appendix — Riggs v. Scrivner, Inc.

® I © ys 3 8 Supreme court, US

a Fi: 2D

Case No. JUN 29 1991

IN THE SUPREME COURT OF THE UNITED § OF THE CLERK

October Term, 1991

Ernest E. Riggs, Petitioner

¥.

Scrivner, Inc., an Oklahoma

corporation, Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

APPENDIX

Michael T. Braswell

Braswell & Associates

Counsel of Record for

Petitioner, Ernest E.

Riggs

3621 North Kelley

Oklahoma City, OK

¥aaee

(405) 232-1950

a ,

APPENDIX TABLE OF CONTENTS

A. Appeal from the United States

District Court for the Western

District of Oklahoma (D.C. No. CIV-

90-2301-W) filed 5/13/91.

B. Order filed 2/7/89.

¢. Order filed 9/1/88.

D. Motion to Reconsider Defendant's

Motion for Judgment Notwithstanding

the Verdict.

omens ones

E. Notice of Appeal filed 10/4/88.

F. Order filed October 4, 1988.

7)

Notice of Appeal filed 9/27/88.

te

Appendix A

Filed 5/13/91

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERNEST E. RIGGS, )

)

Plaintiff/Appellant, )

)

/

vs. ) Nos. 89-6297

&

SCRIVNER, INC., an 89-6350

)

)

Oklahoma corporation, )

)

)

Defendant/Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-90-2301-W)

Submitted on the briefs:

Michael T. Braswell, Oklahoma City,

Oklahoma

for Plaintiff/Appellant.

David M. Curtis of Lytle Soule & Curlee,

Oklahoma cacy, Oklahoma, for

Defendant/Appellee.

Before ANDERSON, TACHA, and BRORBY,

Circuit Judge

ANDERSON, Circuit Judge.

Plaintiff appeals from several

adverse district court rulings made in

this civil action, commenced pursuant to

42 U.S.C. Section 1981 and Title VII, 42

U.S.C. Section 2000e, alleging Defendant

wrongfully terminated Plaintiff's

employment on the basis of his race,

white. In appeal No. 89-6297, Plaintiff

asserts ten grounds of error in the trial

court proceedings, which ultimately

resulted in verdicts in favor of

Defendant on both claims. In appeal No.

89-6350, Plaintiff challenges the trial

1 cane

court's award of costs to Defendant’.

Plaintiff commenced this action in

November 1987, seeking reinstatement,

back pay, and actual and ~»punitive

damages. Following a trial on the

merits, the jury, on June 2, 1988,

returned a verdict in favor of Plaintiff

on the Section 1981 claim. Also on June

2, the trial court, addressing the Title

| VII claim, made an initial determination

in favor of Defendant.

On June 10, Defendant filed a Motion

for Judgment Notwithstanding the Verdict

or, in the alternative, a New Trial,

challenging the jury's verdict on the

, After examining the briefs and

appellate record, this panel has

determined unanmiously that oral argument

| would not materially assist the

determination of these appeals. See Fed.

! R. App. P. 34(a); 10th Cir. R. 34 1.9.

The cases are therefore ordered submitted

without oral argument.

ee ee eee

Section 1981 claim. The district court

denied that Motion on September 1. Also

on September 1, the district court,

ruling it was bound by the jury's

determination on the issue of

discrimination, reversed its initial

determination on the Title VII clain,

held in favor of Plaintiff and set a

hearing on the issue of Title VII relief.

The district court held that hearing on

September 9, but did not rule on the

issue of Title VII relief.

Defendant filed a notice of appeal

on September 27, 1988, challenging the

district court's September 1

determinations. On December 7, Defendant

filed a Motion for Reconsideration of the

denial of its Motion for New Trial,

asserting for the first time that the

jury's verdict on the Section 1981 claim

was the result of a jury compromise. The

district court denied the Motion to

Reconsider, but sua sponte ordered a new

trial, determining the jury verdict was

the result of a compromise.

The district court conducted a

second jury trial, which resulted in a

verdict in favor of Defendant on the

Section 1981 claim. The trial court then

held in Defendant's favor on the Title

VII claim and awarded Defendant costs.

The issue presented by Plaintiff's

first ground for error in appeal No. 89-

6297 is whether the district court's

referral of this action to mandatory,

nonbinding arbitration, pursuant to

Western District of Oklahoma Local Rule

43, violated Plaintiff's constitutional

right to a jury trial on his Section 1981

Claim. See generally Skinner v. Total

Petroleum, Inc., 859 F.zd 1439, 1443

(10th Cir. 1988) (where Title VII and

Section 1981 claims combined in one

action, seventh amendment entitles

Plaintiff to jury trial on Section 1981

but not on Title VII claim).

Local Rule 43(P) (1) provides, at the

request of a party, for a trial de novo

before the district court following

arbitration. Further, Rule 43(P) (2)

provides, that "unless the parties have

otherwise stipulated, no evidence of or

concerning the arbitration may be

received into evidence" during the trial

de novo.

The record indicates that, following

the arbitration proceedings, the district

court conducted a de novo jury trial on

Plaintiff's Section 1981 claim. Referral

of this action to arbitration, therefore,

did not deny Plaintiff his right to a

jury trial. See New England Merchant's

Nat'l] Bank v. Hughes, 556 F. Supp. 712,

714 (E.D. Pa. 1983) (local compulsory

arbitration rule, similar to Local Rule

43, “does not in any way abridge the

constitutional right of a litigant to

trial a jury since the litigant is

entitled to demand a trial de novo

provided he has complied with the

procedures set forth" in the local rule).

In his second ground for error,

Plaintiff asserts the district court

erred in considering Defendant's Motion

for Reconsideration of the denial of its

Motion for a New Trial because Defendant

filed the Motion to Reconsider beyond the

ten-day period provided by Fed. R. Civ.

P. 59(b).° Similarly, in his third

ground for reversal, Plaintiff asserts

. In his appellate brief,

Plaintiff also asserts defendant's Motion

for Reconsideration was frivolous and

requests an award of sanctions against

Defendant. Appellant's Brief (No. 89-

6297), 7. This request is denied.

7

that the district court erred in sua

sponte granting a new trial beyond the

ten-day time frame provided by Rule

59(d).

The ten-day period provided by Rule

59 begins to run only from the entry of

a final judgment. Anderson v. Deere &

Co., 852 F.2d 1244, 1246 (10th Cir.

1988); see generally Coopers & Lybrand

v. Livesay, 437 U.S. 463, 467 (1978)

(final order ends litigation on merits

and leaves nothing for court to do but

execute judgment). At the time Defendant

filed the Motion for Reconsideration and

at the time the district court sua sponte

ordered a New Trial, there had been no

final judgment entered in this action

because the issue of Title VII relief had

not yet been determined. See Liberty

Mut. Ins. Co. v. Wetzel, 424 U.S. 737,

744 (1976) (where issue of liability has

————— ee errr rrernreSres—S—

been determined, but assessment of

damages or award of other relief remains

to be resolved, order determining

liability is not final order.

Because a final judgment had not yet

been entered in this action to commence

Rule 59's ten-day limitations period, the

district court's consideration of the

Motion for Reconsideration and_ the

district court's order sua sponte

granting a New Trial did not violate Rule

59. Further, because a court possesses

the discretion to revise its

interlocutory orders prior to the entry

of a final judgment, Anderson, 852 F.2d

at 1246 (citing Fed. R. Civ. P. 54(b),

the district court was not procedurally

precluded from ordering a New Trial.

The issue presented by Plaintiff's

sixth argument on appeal is whether,

because Defendant had filed a notice of

appeal prior to its Motion for

Reconsideration, the district court

lacked jurisdiction to grant a New Trial.

While the filing of a timely notice of

appeal divests the district court of

jurisdiction, e.g, Garcia v. Burlington

Northern R.R. Co., 818 F.2d 713, 721

(10th Cir. 1987), a premature notice of

appeal is ineffective to transfer

jurisdiction from the district court to

the Court of Appeals. Art Janpol

Volkswagen, Inc. v. Fiat Motors of N.

Am., Inc. 767 F.2d 690, 697 (10th Cir.

1985). Because Defendant's notice of

appeal was premature, in light of the

fact that the issue of Title VII relief

has yet to be determined, Defendant's

notice of appeal was insufficient to

deprive the district court of

jurisdiction to grant a New Trial. Id.

For these same reasons, Plaintiff's ninth

10

argument on appeal, that Defendant by

filing a notice of appeal but never

filing an Appellate Brief, waived any

challenge to the jury's verdict in the

first trial, also lacks merit.

Plaintiff's fifth argument on appeal

challenges the district court's

imposition of sanctions against

Plaintiff's attorney. Plaintiff's

attorney, rather than Plaintiff, was the

party aggrieved by the district court's

imposition of sanctions and, therefore,

was the proper party to appeal from this

decision. S ; Vv.

Travel Serv., Inc. 875 F.2d 564, 577

(7th Cir.), cert. denied., 110 S. Ct. 366

(1989) (citing Rogers v. National Union

Fire Ins. Co. 864 F.2d 557, 559-60 (7th

Cir. 1988)). The rules of federal

appellate procedure require that the

notice of appeal "shall specify the party

11

eT

or parties taking the appeal." Fed. R.

App. P.- 3(¢)? see also Concorde

Resources, Inc. v. Woosley ( In re

Woosley), 855 F.2d 687, 687 (10th Cir.

1988). Failure to name the proper party

taking the appeal will result in the

dismissal of an appeal for lack of

appellate jurisdiction. Torres v.

Oakland Scavenger Co., 487 U.S. 312, 314

317 (1988); see also Woosley, 855 F.2d at

688. Because the notice of appeal filed

in appeal No. 89-6297 failed to name

Plaintiff's attorney as a party to the

appeal, this court lacks jurisdiction to

review the merits of this argument. See

Woosley, 855 F.2d at 687-88; see also Amy

Travel Serv. 875 F.2d at 577.

Plaintiff asserts four arguments on

appeal challenging the second jury trial.

Plaintiff first asserts eet: because the

issue of Defendant's liability on the

12

Section 1981 claim had been conclusively

resolved by the first jury trial, the

only appropriate issue to be addressed

during the second trial was the issue of

damages. The district court granted a

new trial after determining that the

verdict in the first trial was the result

of a jury compromise.°

"A compromise

judgment is one reached when the jury,

unable to agree on liability, compromises

that disagreement and enters a low award

of damages." National R.R. Passenger

Corp. v. Koch Indus. Inc., 701 F.2d 108,

110 (10th Cir. 1983) (emphasis added).

The district court's order granting a new

trial on both the issue of liability and

the issue of damages was not erroneous in

Plaintiff does not challenge,

on appeal, the merits of the district

court's decision to vacate the verdict

reached in the first jury trial because

the verdict represented a jury

compromise.

13

light of the district court's

determination that the jury verdict was

the result of a compromise. See id.

Plaintiff next asserts both that the

district court erred in denying

Plaintiff's Motion for a Directed Verdict

and that the jury's verdict in favor of

Defendant was not supported by sufficient

evidence. This court reviews the denial

of a Motion for a Directed Verdict de

novo. Guilfoyle ex rel. Wild Vv.

Missouri, Kan. & Tex. R.R. Co., 812 F.2d

1290, 1292 (10th Cir. 1987). A directed

verdict is appropriate only if the

evidence, viewed in the light most

favorable to the nonmoving party, "points

but one way and is susceptible to no

reasonable inferences supporting" the

nonmoving party. Zimmerman v. First

Fed. Sav. & Loan Ass'n, 848 F.2d 1047,

1051 (10th Cir. 1988). Further, this

14

2 =<

court's review of the evidence underlying

: a jury verdict in a civil case is limited

| to determining "whether the record

contains substantial evidence to support

the jury's - «+ + conclusion, viewing

the evidence in the light most favorable

to the prevailing party." Kitchens v.

Bryan County Nat'l] Bank, 825 F.2d 248,

251 (10th Cir. 1987). After careful

review of the evidence presented during

the second jury trial, we determined that

Plaintiff was not entitled to a directed

verdict and that substantial evidence

supported the jury's verdict in favor of

Defendant.

Lastly, Plaintiff asserts the trial

judge erred in making statements

prejudicial to Plaintiff in the presence

of the jury. Review of the record fails

to indicate any remark made by the trial

court which might have_ prejudiced

y Ee

plaintiff's case before the jury.

In appeal No. 89-6350, Plaintiff

challenges the district court's award of

costs to Defendant. This court reviews

an award of costs under an abuse of

discretion standard. United States

Indus. Inc. v. Touche Ross & Co., 854

F.2d 1223, 1245 (10th Cir. 1988) With

one exception, we affirm the district

court's award of costs.

Plaintiff challenges the district

court's taxation of a witness fee of

thirty-five dollars for Defendant's

expert witness. The witness fee for an

expert witness who is not court-appointed

is limited to the thirty dollar per day

limit authorized in 28 U.S.C. Section

1821(b). Crawford Fitting Co. v. J.T.

Gibbons, Inc. 482 U.S. 437, 441-42

(1987); Furr v. AT&T Technologies, Inc.

824 F.2d 1537, 1550 (10th Cir. 1987). A

16

meme =

federal court does not have jurisdiction

to go beyond that statutory limitation.

Crawford Fitting, 482 U.S. at 445. The

district court, therefore, abused its

discretion in awarding Defendant thirty-

five dollars a day for two days as a

witness fee for Defendant's expert

witness.

To the extent appeal No. 89-6297

challenges the district court's

imposition of sanctions against

plaintiff's attorney, that appeal is

DISMISSED for lack of appellate

jurisdiction. We remand appeal No. 89-

6350 to the district court for the

purpose of reducing the total award of

costs by ten dollars. See e.g., Mares

v. Credit Bureau of Raton, 801 F.2d 1197,

1210 (10th Cir. 1986). In all other

respects, the judgments of the United

States District Court for the Western

a7

District of Oklahoma are AFFIRMED.

Plaintiff's request for sanctions in

appeal No. 89-6297 is DENIED.

18

Appendix B

Filed 2/7/89

IN THE UNITED STATES DISTRICT COURT FOR_ THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Appellant,

vs. CIV-87-2301-R

SCRIVNER, INC.,

eee ee eee ee ee ee

Appellee.

ORDER

This matter comes before the Court

upon Defendant's Motion to Reconsider the

Court's denial of its Motion for Judgment

Notwithstanding the Verdict and upon

Plaintiff's Response and Request for

Sanctions.

In this case the plaintiff sued his

employer, Defendant Scrivner, Inc.,

alleging that Scrivner terminated his

employment because he is white, in

violation of 42 U.S.C. Section 1981 and

42 U.S.C. Section 2000(e). Plaintiff's

Section 1981 claim was heard by a jury

May 31, 1988, and a verdict was rendered

in favor of the Plaintiff on June 2,

1988. Consistent with the jury verdict,

the Court found in favor of the

Plaintiff, on his Title VII claim and

held a hearing on the feasibility of

reinstatement of Mr. Riggs' employment

with the Defendant. The court has not

ruled on that matter and judgment has not

been entered in this case.

In his Motion to Reconsider,

Plaintiff asserts for the first time,

that the jury verdict was an obvious

compromise, and seeks Judgment NOV on

that basis.

The court has determined that the

verdict in favor of the Plaintiff was

likely reached as a result of jury

compromise.

In his Section 1981 action, the

Plaintiff requested compensation in the

form of back pay and lost benefits. The

issue of back pay was properly before the

jury and the jury was instructed as to

the issues of back pay and lost

employment benefits. The jury found for

the Plaintiff and awarded him $6,000.00

in damages.

The damages awarded by the jury bear

no relationship to the evidence presented

by the plaintiff at trial. Plaintiff

presented evidence to the jury that his

current employment pays him $9.00 per

hour plus certain employment benefits,

and his position with the Defendant paid

$14.40 per hour at the time of his

termination, plus substantial fringe

benefits which are not available at his

present employment. Plaintiff's evidence

indicated that he suffered a loss of back

pay, including lost fringe benefits of

approximately $65,000.00. Plaintiff also

sought $150,000.00 in punitive damages.

Although the court has a duty to

reconcile the jury's verdict on any

reasonable theory consistent with the

eviconce, Gallick v. Baltimore & Ohio

Railroad Company, 372 U.S. 108, 83 S. Ct.

659, 9 L.Ed.2d 618 (1963); Ortiz v. Bank

of American National Trust and Savings

Ass'n, 852 F.2d 383 (9th Cir. 1988), the

court cannot reconcile a compromise

judgment.

"A compromise judgment is one

reached when the jury, unable to agree on

liability, compromises that disagreement

and enters a low award of damages."

(citations omitted) National Railroad

Passenger Corp. v. Koch Industries, Inc.

701, F.2d 108, 110 (10th Cir. 1983).

The court must examine several

factors to determine whether a verdict is

the result of jury compromise.

In particular, a

damage award that is

grossly inadequate,

a close question of

liability, and an odd

chronology of jury

deliberations are all

indicia of a

compromise verdict.

Skinner _v. Total Petroleum, Inc., 859

F.2d 1439, 1445-46 (10th Cir. 1988).

In this case the damage award is

grossly inadequate, and bears no rational

connection with the facts in evidence.

The question of liability was indeed

a close one. The Court initially found

in favor of the Defendant on Plaintiff's

Title VII claim. That decision was based

upon the evidence adduced at trial.

Thereafter, the Court determined that its

A

ruling on Plaintiff's Title VII claim

must comport with the jury's

determination of Defendant's liability,

reconsidered its initial decision and

found in favor of the Plaintiff. Order

of September 1, 1988.

In this case, the Plaintiff alleged

that he was discharged because he is

white. Defendant asserted that it

terminated Plaintiff because he had

absented himself from work without

clocking out on several occasions. The

Plaintiff admitted to the infraction, but

asserted that several black employees had

committed similar offenses and were

subjected to discipline short of

termination by the Company. According to

the Piaintiff he would not have been

discharged if he were not white, and the

reason given for discharging him was

pretextual. The question of pretext was

ne

a close one, and evidence was presented

by each side in support of its position.

Additionally, the pattern of jury

deliberation lends itself to the

conclusion that the verdict was a

compromise. The jury retired at 2:20

p.m. June 1, 1988. At approximately 5:00

p.-m., it indicated that it could not

reach a verdict and requested to be

discharged for the evening. It resumed

deliberation the following morning, and

thereafter it sent a note to the Judge

which asked: "if we find in favor of the

Plaintiff can we not award any damages at

asi? The court responded and

thereafter, at 11:30 a.m., the jury

returned its verdict. The question asked

by the jury and its sudden decision to

award six thousand dollars to the

Plaintiff shortly thereafter "raises the

question of the reliability of the jury's

verdict." Skinner, supra, at 1446.

Neither party has offered any basis

upon which the Court can reconcile the

damage award with the evidence of damages

presented at trial, nor can the Court

find any relationship between the damage

award and the evidence. Accordingly the

Court finds that the damages awarded in

this case appear to be arbitrary, the

award bears no relationship to the

evidence presented, representing less

than ten percent of the damages claimed

by the Plaintiff for back pay and fringe

benefits. The question of liability in

this case was a close one depending upon

whether the Defendant's announced reason

for terminating the Plaintiff's

employment was a mere pretext for racial

discrimination or whether is was the

actual reason for discharging the

Plaintiff. Finally, the jury's pattern

of deliberation , and particularly the

jury's question, asking if it could find

the Defendant liable and award no damages

to the Plaintiff, provides a_ strong

indication that the jury was seeking a

compromise on the basic issue of whether

the Defendant was liable under Section

1981.

In its Motion to Reconsider,

Defendant seeks only reconsideration of

the Court's denial of Defendant's Motion

for Judgment Notwithstanding the Verdict.

The Order of denial was issued September

1, 1988, and Defendant makes reference to

no Rule of Civil Procedure under which

the Court could reconsider its Order of

September 1, 1988.

The Court agrees with the Defendant

that the jury verdict appears to have

been a compromise verdict; however, the

appropriate remedy in this case is for

the Court to order a new trial sua

sponte, since judgment has not yet been

entered in this case. Fed. R. Civ. P.

59(d).

The court notified the parties of

its concern that the jury verdict

appeared to have been a compromise

verdict, pursuant to Fed. R. Civ. 59(d).

A hearing was held and argument was

presented by both parties on February 3,

1989. Upon consideration of the record

in this case, and the facts and arguments

presented, the court agree with the

Defendant, that the jury verdict, appears

to have been a compromise verdict, and

further determines that a new trial

should be ordered in this case.

Accordingly, Defendant's Motion to

Reconsider is denied, and Plaintiff's

Motion for Sanctions is denied. A new

trial is ordered in this case to be set

10

on the April jury docket

IT IS SO ORDERED this 7th day of

February, 1989.

DAVID L. RUSSELL

UNITED STATES DISTRICT

JUDGE

11

Appendix Cc

Filed 9/1/88

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Plaintiff,

vs. CIV-87-2301R

SCRIVNER, INC.,

ee ee ee ee ee ee ee eee ee”

Defendant.

ORDER

This matter comes before the Court

upon Defendant, Scrivner, Inc.'s Motion

for Judgment Notwithstandin the Verdict

or in the Alternative for New Trial.

This is an employment discrimination

case in which the Plaintiff, a white man,

asserted that his employment was

terminated by the Defendant because of

his race. On May 31, 1988, this case

came on for trial by jury on Plaintiff's

Claim under 42 U.S.C. Section 1981, and

for trial by the Court pursuant to

Plaintiff's claim under Title VII of the

Civil Rights Act of 1964, 42 U.S.C.

Section 2000(e).

After hearing the evidence, the

jury, on June 2, 1988, returned its

verdict in favor of the Plaintiff in the

amount of $6,000.00. The Court heard the

evidence with regard te the Title VII

action, and announced its preliminary

determination in favor of the Defendant.

Since that time the Court has

reconsidered its decision and, upon

determination that it was bound by the

finding of the jury, found for the

Plaintiff on his Title VII action.

Defendant, Scrivner, seeks judgment

nov pursuant to Fed. R. Civ. P. 50(b) or

seeks a new trial pursuant to Fed. R.

Civ. P. 59.

It is Scrivner's position that there

was not sufficient evidence to prove that

Plaintiff's discharge from his employment

was discriminatory, or that such

discrimination was intentional.

For Plaintiff to prevail under

Section 1981, there must be an

affirmative showing of purposeful

discrimination. General Building

v. vania, 458 U.S.

375 (1982); Vv is ope &

Santa Fe Railway Co., 731 F.2d 698 (10th

Cir. 1980). That showing may be made by

evidence which demonstrates Mr. Riggs was

treated differently than black employees

in similar situations. Montgomery __v.

Yellow Freight System, Inc., 671 F.2d 412

(10th Cir. 1982).

The parties stipulated that

Plaintiff was terminated from his

Ica eee

employment with the Defendant on February

16, 1986 and that the Plaintiff admitted

leaving Defendant's facility on _ two

occasions without clocking out.

Defendant produced evidence at trial

to show that the reason Mr. Riggs'

employment was terminated was because he

left work without clocking out and that

such conduct subjected the offender to

immediate discharge.

Plaintiff produced evidence at

trial, by way of testimony and personnel

records of other employees of Defendant,

that on several occasions black employees

committing the same offense or similar

offenses were not fired, but were merely

cc. eseled or suspended. Plaintiff's

evidence, if believed by the jury, could

be construted as proving that’ such

disparate treatment was7~ racial in

character and a violation of Section

1981.

In determining whether to grant

Defendant's Motion for Directed Verdict,

the Court must view the evidence most

favorably to the Plaintiff, giving him

the benefit of all reasonable inferences,

and it may not substitute its judgment

for that of the jury, Vv. erican

Hoist and Derrick Co., 734 F.2d 495 (10th

Cir. 1984).

Applying that standard, the Court

finds that there was sufficient evidence

for the jury to find in favor of the

Plaintiff.

Accordingly, Defendant's Motion for

Judgment Notwithstanding the Verdict is

hereby DENIED. Likewise, Defendant's

Alternate Motion for a New Trial is

DENIED.

ENTERED this lst day of September,

1988.

DAVID L. RUSSELL

UNITED STATES DISTRICT

JUDGE

Appendix D

Filed 9/27/88

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Plaintiff,

CIV-87-2301-R

Vs.

SCRIVNER, INC.,

ll di de de de

Defendant.

MOTION TO RECONSIDER DEFENDANT'S

MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT

Comes now the Defendant, Scrivner,

Inc. and moves the Court to reconsider

its Motion for Judgment Notwithstanding

the verdict for the reasons set forth in

the attached brief.

Peter T. Van Dyke

David M. Curtis

Randall W. Kamp

LYTLE SOULE & CURLEE

1200 Robinson

Renaissance

119 North Robinson

Oklahoma City, OK 73102

405/235-7471

Attorneys for Defendant

Appendix E

Filed 10/4/88

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Plaintiff,

SCRIVNER, INC.,

)

)

)

)

vs. ) CIV-87-2301R

)

)

)

Defendant. )

NOTICE OF APPEAL

Notice is hereby given that

Scrivner, Inc., Defendart in the above-

styled cause, hereby appeals to the

United States Court of Appeals for the

Tenth Circuit from the final order of the

United States District Court for the

Western District of Oklahoma, awarding

attorney's fees to the Plaintiff, which

order was entered on November 9, 1988.

—_———EE

Peter T. Van Dyke

David M. Curtis

Randall W. Kamp

LYTLE SOULE & CURLEE

1200 Robinson

Renaissance

119 N. Robinson

Oklahoma City, OK

73102

405/235-7471

Attorneys for Defendant

APPENDIX F

Filed October, 1988

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Plaintiff,

vs. No. CIV-87-2301-R

SCRIVNER, INC.,

eee eee ee ee eee ee eee ee ee”

Defendant.

OR DER

Plaintiff has moved for an award of

attorney's fees pursuant to 42 U.S.C.

Section 1988 and 42 U.S.C. Section

2000(e) (5) (k). Defendant responded,

objecting both entitlement and the amount

of fee sought. The matter was referred

to the undersigned Magistrate for

hearing, pursuant to 28 U.S.C. Section

636 and Local Rule 39. An evidentiary

hearing was held on September 21, 1988,

all parties appearing through counsel,

and in consideration of the arguments,

evidence, and testimony, the Court rules

as follows.

Plaintiff in this case was a white

male employee of Defendant who was

discharged by Defendant and sued for

employment discrimination under _ both

Title VII and 42 U.S.C. Section 1981.

This was a "reverse discrimination" case.

Despite an adverse decision in

arbitration and the granting of summary

judgment as to the Title VII clain,

plaintiff prevailed by obtaining a $6,000

jury verdict on the Section 1981 claim.

The Title VII summary judgment was later

vacated, and the appropriate remedy is

presently under advisement by Judge

Russell. Counsel for plaintiff has

submitted an affidavit in which he claims

a reasonable attorney's fee in this

matter would be an award compensating him

at $150 per hour for 90.1 hours and his

legal assistant at $85.00 per hour for

189.9 hours, for a total fee sought of

$29,656.50. At the time of hearing,

certain corrections were made by

plaintiff, revising downward the claim

for attorney's time by 4.6 hours and

legal assistant's time by 8 hours.

The Court finds that plaintiff, as

prevailing party, is entitled to the

award of a reasonable attorney's fee.

Hensle a. ckerhart 461 U.S. 424

(1983); Ramos _v. Lamm, 713 F.2d 546

(1983). Ramos sets out in some detail the

considerations upon which the relevant

factors in support of a reasonable fee

are to be assessed and applied to achieve

a just result. The first step is to

determine the number of hours reasonably

spent by counsel. Ramos, 713 F.2d at 553.

SS eee

Evidence at the hearing on fees revealed

that contemporaneous time records were

not kept by counsel for plaintiff.

Joseph McCormick, legal assistant to

plaintiff's counsel, estimated that the

number of time slips that had been

reconstructed at the conclusion of the

case could be one third, but frankly

stated he really had no idea. It is

obvious from even a cursory review of the

time slips, that the majority are the

result of reconstruction, rather than

contemporaneous’ recording. Although

counsel for plaintiff touts his expertise

in the file of civil rights, he appears

to be unaware that the Circuit has

mandated in 1983, in Ramos, that

contemporaneous time records be kept,

reflecting not only the hours spent, but

the specific tasks performed. While the

failure to maintain contemporaneous

records does not automatically defeat

plaintiff's claim for fees, it requires

that "...{tjhe district court should give

special scrutiny to any reconstructions

or estimates of time expended and make

reductions when appropriate." Id., at

n.2. Thus, defendant's motion to strike

the attorney's fee affidavit for failure

to keep contemporaneous time records is

denied, but the affidavit will be-

carefully scrutinized.

In evaluating the number of hours

spent in any civil rights case, the Court

is required to examine the hours allotted

to specific tasks, to determine whether

the tasks sought to be charged to the

adverse party would normally be billed to

a paying client. Ramos, 713 F.2d at 554.

In this case, plaintiff's counsel

attempts to bill all hours spent by his

legal assistant, despite the testimony of

the legal assistant, Joseph McCormick,

that he spent a large number of hours

educating himself on the law of civil

rights cases. Although plaintiff's

counsel attempts to justify the award of

fees for this time by virtue of his

visual impairment and the corresponding

need for the aid of a legal assistant,

the Court believes that this is one of

those tasks that should not and would not

ordinarily be billed to a client, and

thus may not be sought from opposing

parties. Another consideration is the

duplication of services, and again the

Court finds certain tasks, for which both

counsel and his legal assistant billed

time, result in multiple compensation

which is inappropriate, Id.

Ramos counsels that the next inquiry

is the determination of a reasonably

hourly rate. Mr. Braswell, counsel for

}

plaintiff, Claims his services are

entitled to be compensated at the rate of

$150.00 per hour. He offers no evidence

in support of that rate as reasonable.

Mr. Braswell's argument is that, because

counsel for defendant charges $145.00 per

hour, he should be compensated in ac

least an equivalent amount. Counsel

offered no evidence as to his normal

billing rate; in fact, he apparently has

no normal billing rate, as all cases are

accepted on either a flat fee or

contingent basis. Although counsel, as

mentioned, believes himself highly

experienced in the area of civil rights

law, he admitted that this particular

type of case, a reverse

discrimination, was new to him. Further,

he relied almost exclusively on the

preparation and work of a legal

assistant, and the testimony at the

hearing was that some of the hours spent

were as a result of the file does not

support either Mr. Braswell's claim or a

finding that his skill and experience

justifies an award of $150.00 a hour.

The Court finds $100 per hour to be a

reasonable rate after compensation for

Mr. Braswell.

No evidence was adduced supporting an

award of $85.00 per hour for the hours

expended by a legal assistant. Again,

counsel asserts his need for the work of

his legal assistant, being greater than

that of a lawyer without visual

impairment, justifies payment of that

assistant at a higher rate. Counsel

offers neither evidence nor case law to

support this theory, and the Court finds

that, as is the case with attorney time,

both the hours spent and rates charged

must be scrutinized in accord with the

prevailing practice in the community.

Ramos, 713 F.2d at 559. Evidence was

submitted by defendant that the maximum

hourly charge for paralegal time in this

community is $50.00 per hour. Because

Mr. McCormick appears to be experienced

in the field and competent at his work,

and further because he had graduated from

law school at the time the services were

performed although he was not a member of

the bar, $50 per hour for his work is

reasonable.

Having found a reasonable rate of

compensation, the Court returns to the

question of the reasonable number of

hours spent. Because the time records

are not contemporaneous, the Court must

examine with scrutiny the time claims for

each specific task. The Court finds an

excessive number of hours devoted to

research, preparation, and other tasks

with respect to the arbitration hearing

and request for trial de novo.

Consequently, the number of hours claimed

will be reduced three hours for Mr.

Braswell and five hours for Mr.

McCormick. The trial preparation time

claimed in late May for both Braswell and

McCormick, subject to special scrutiny

because of the absence of contemporaneous

records, appears in excess of that either

reasonably or likely spent, and will be

reduced by five hours for both. Finally,

duplication of efforts appear at those

entries dated March 14, 1988, April 28,

1988, June 1, and June 2, for which Mr.

McCormick's hours will be reduced 15.8.

At least partial duplication appears on

May 28 through 31, for which Mr.

McCormick's hours will be reduced 14.

Plaintiff claims entitlement to

enhancement of these fees based on the

10

Saosin.

exceptional success and excellent result

achieved. See Hensley v. Eckerhart,, 461

U.S. at 434. Although plaintiff obtained

a recovery in the amount of $6,000, the

$65,000 in back pay and punitive damages

were not awarded. Thus, although

plaintiff did achieve a success, it was

not total nor exceptional. Counsel did

not exhibit the extraordinary skill which

would justify such a award. Ramos, 713

F.2d at 557. A bonus for social stigma

should rarely be given, id. at 558, and

no social stigma or undesirability, apart

from the slim chance of success, has been

shown. No bonus for the contingent

nature of the fee is warranted in this

case, id. at 558, expecially considering

that counsel was paid a retainer in

addition to the possibility of a count-

awarded fee. In short, none of the

factors listed in Ramos or Hensley

11

support plaintiff's request for an

enhanced fee in this case. Plaintiff's

contention that the constant threat of

sanctions supports an enhanced fee is not

supported by either controlling law or

the facts of this case.

Finally, counsel seeks fees for the

time spent in connection with the hearing

on attorney's fees, to which he is

entitled. The Court takes judicial

notice that the hearing on fees lasted

five hours, for which Mr. Braswell is

entitled to be compensated at the rate of

$100 per hour. Nc fee appears to be

sought by Mr. McCormick, and in any

event, such an award would constitute the

duplication of effort found unwarranted

above.

In accordance with the foregoing, it

is ORDERED that plaintiff is entitled to

a reasonable attorney's fee, determined

12

by the Court to be 77.5 hours of attorney

time, to be compensated at $100 an hour

and 142.1 hours of legal assistant

time,to be compensated at $50.00 per

hour. An additional five hours, at the

rate of $100 per hour for the hearing on

attorney's fees will be awarded, for a

total sum of $15,355.00. As agreed at

the hearing, counsel for plaintiff may

withdraw the original time slips and

substitute copies, within ten (10) days.

AS provided in Local Rule 39, any party

aggrieved by this order may appeal within

ten (10) days.

IT IS SO ORDERED this 4th day of

October, 1988.

ROBIN J. CAUTHRON

UNITED STATES MAGISTRATE

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Appendix G

Filed 9/27/88

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERNEST E. RIGGS,

Plaintiff,

vs. CIV-87-2301R

SCRIVNER, INC.,

i i

Defendant. )

NOTICE OF APPEAL

Notice is hereby given that

Scrivner, Inc., Defendant in the above-

stylec cause, hereby appeals to the

United States Court of Appeals for the

Tenth Circuit from the final order of the

United States District Court for the

Western District of Oklahoma in this

action on the lst day of September, 1988.

Peter T. Van Dyke

David M. Curtis

Randall W. Kamp

LYTLE SOULE & CURLEE

1200 Robinson

Renaissance

119 N. Robinson

Oklahoma City, OK 73102

405/235-7471

Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on the 7th day

of August, 1991, three (3) correct copies

of the foregoing APPENDIX was mailed,

postage prepaid, to the following:

Peter Van T. Dyke

1200 Robinson Renaissance

119 North Robinson

Oklahoma City, OK 73102

(405) 235-7471

Lp la fle a

Mchaet“2. Braswell

~ Case No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

Ernest E. Riggs, Petitioner

Ws

Scrivner, Inc., an Oklahoma

corporation, Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

AFFIDAVIT OF MAILING

This Petitioner's Appendix was

mailed, first class, postage prepaid and

correctly addressed to the Clerk of the

Supreme Court of the United States, on

August 7th, 1991, from the Main Post

Office, 320 S.W. 5th Street, Oklahoma

City, Oklahoma 73102.

. Braswell

3621 ‘N. Kelley, Suite 100

Oklahoma City, OK 73111

405/232-1950

STATE OF OKLAHOMA, )

SS.

COUNTY OF OKLAHOMA. )

Subscribed and sworn to before me

this 7th day of August; 1991.

Notary Public

My Commission Expires /O-/Y%- 93