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Nesmith v. Hospice Compassus

United States District Court, M.D. Tennessee, Nashville Division

February 14, 2019

LEVI NESMITH, Plaintiff,
v.
HOSPICE COMPASSUS Defendant.

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE

         TO: Honorable Aleta A. Trauger, District Judge

         Pending before the court is Defendant Hospice Compassus's post-trial motion for attorneys' fees and appended exhibits (Docket No. 25) filed on July 2, 2018, with an accompanying memorandum of law (Docket No. 26), which is before the undersigned Magistrate Judge by referral from Judge Trauger. See Order at Docket No. 30. For the reasons set forth below, the undersigned Magistrate Judge respectfully recommends that Defendant's motion (Docket No. 25) be DENIED. Alternatively, the undersigned respectfully recommends that Defendant be awarded fees of no more than $1, 000.

         I. BACKGROUND

         Plaintiff Levi Nesmith is a former employee of Hospice Compassus, a business located in Brentwood, Tennessee. On October 13, 2017, Plaintiff filed a pro se complaint against Defendant, alleging claims of wrongful termination and retaliation based on his race, color, and sex in violation of Title VII. Docket No. 1 at 2. The factual allegations relied upon by Plaintiff were not specifically stated in the complaint, but rather found in his attached EEOC charge of discrimination, in which he alleged race discrimination and retaliation apparently related to his attendance record, including having missed work to meet with the EEOC to discuss prior charges of discrimination. Docket No. 1 at 6.

         With the filing of his complaint, Plaintiff also sought leave to proceed in forma pauperis. Docket No. 2. By order entered on October 25, 2017 (Docket No. 4), Plaintiff's in forma pauperis application was granted. In its order granting Plaintiff leave to proceed IFP, the Court also addressed the initial review requirement of 28 U.S.C. § 1915(e)(2), pursuant to which the reviewing court must determine, among other things, whether the claims asserted are facially frivolous or malicious or fail to state a claim upon which relief may be granted. Docket No. 4 at 1-2. The Court found that Plaintiff adequately stated colorable claims of discrimination and retaliation under Title VII to permit him to proceed. Id. at 2.

         On November 21, 2017, Defendant responded to the complaint by filing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Docket No. 7. Defendant argued that the complaint failed to plead sufficient facts to establish any plausible claim of discrimination and that Plaintiff failed to exhaust his administrative remedies as to his color and sex discrimination claims. See Memorandum of Law at Docket No. 8.

         Plaintiff filed a response in opposition to the motion to dismiss, but the response did not set out any actual arguments and did not address the specific grounds for dismissal raised by Defendant. See Docket No. 10. Instead, Plaintiff attached to his response (1) three documents from a Charge of Discrimination he filed on August 31, 2015, about alleged discrimination and retaliation at one of his prior employers, see Docket No. 10 at 5-7; (2) a page from what appears to be Defendant's employee handbook, id. at 8; and (3) a page from what appears to be Defendant's response to the EEOC Charge Plaintiff filed regarding his employment with Defendant, id. at 9.

         In a reply to the response, Defendant pointed out that Plaintiff failed to respond to its actual arguments for dismissal. Defendant also argued that none of the attachments offered by Plaintiff cured the deficiency in his complaint concerning the lack of supporting factual allegations for Title VII claims. See Docket No. 13.

         On February 26, 2018, the undersigned entered a report and recommendation, in which it was recommended that the motion to dismiss be granted. See Docket No. 14. The recommended dismissal of Plaintiff's claims of sex and color discrimination were based on his failure to have included any such claims in his EEOC charge of discrimination. Id. at 4. Dismissal of the racial discrimination and retaliation claims was recommended based on insufficient supporting factual allegations. Id. at 4-5. Plaintiff filed objections to the Report and Recommendation (Docket No. 15) on March 12, 2018. Defendant filed a response to the objections (Docket No. 17) on March 26, 2018.

         By memorandum opinion and order entered by Judge Trauger on June 1, 2018 (Docket No. 21), the report and recommendation was accepted and adopted, and Plaintiff's complaint was dismissed. The June 1 Order noted that Plaintiff did not raise specific objections to the report and recommendation with respect to the discrimination claims, but rather asserted new factual allegations and focused on new causes of action that were not alleged in his complaint. Docket No. 21 at 2-3. The only factual allegations addressed in Plaintiff's objections were “claims that Hospice Compassus made various complaints about his attendance around or on days when he was visiting the EEOC office to discuss discrimination charges.” Id. at 3. Similarly, Plaintiff failed to adequately specify any objectional findings or recommendations regarding his retaliation claims. Based on these deficiencies in Plaintiff's objections, and upon determination that the report and recommendation applied the proper legal standards, the report and recommendation was “accepted and made the findings of fact and conclusions of law of [the] court” (id. at 5), upon which Plaintiff's complaint was dismissed with prejudice.

         On June 29, 2018, Plaintiff filed a notice of appeal. Docket 23. On July 2, 2018, Defendant filed the instant motion for attorney's fees, with accompanying affidavits and time records and memorandum of law. Docket Nos. 25 and 26. Defendant seeks $12, 997.50 in attorneys' fees “as the prevailing party in having to defend against Plaintiff's numerous frivolous and groundless claims.” Docket No. 25 at 1.

         By order entered on July 5, 2018 (Docket No. 27), the fees motion was held in abeyance pending conclusion of the appeal filed by Plaintiff of the dismissal of his complaint. (Docket Nos. 21, 22, and 23). Upon the Sixth Circuit's affirmance of this Court's judgment (Docket No. 29), Judge Trauger referred Defendant's motion for fees for determination by the magistrate judge following issuance of a mandate by the Sixth Circuit. (Docket No. 30). The Sixth Circuit's mandate issued on January 2, 2019 (Docket No. 31). On January 7, 2019, the Court entered an order directing Plaintiff Levi Nesmith to file a response to Defendant's motion by February 1, 2019. (Docket No. 32). No. response was filed.

         II. ...


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