MARC P. OSSINSKY ATTORNEY AT LAW WRITING SAMPLE 4

DEFENDANTS’ SUPPLEMENTAL MOTION FOR
ATTORNEY’S FEES
PURSUANT TO LOCAL RULE 4.18 AND RULE 54(d)(2) F.R.C.P.

The Defendants, HOWARD PANDO, D.M.D., P.A., JOHN C. YOCUM, JR., D.D.S., P.A., a Partnership of PA’s d/b/a ORANGE DENTAL ASSOCIATES, and ORANGE DENTAL ASSOCIATES, INC. by and through their undersigned attorneys moves this Court pursuant to Local Rule 4.18, and Rule 54(d)(2), F.R.C.P. under the authority of 42 U.S.C. §2000e-5(k) and 28 U.S.C. §1927, to sanction Wayne Bilsky and his law firm, Wooten, Honeywell & Kest, P.A., and award the Defendants prevailing party attorneys fees against Plaintiff MELISSA BROOKS and her counsel Wooten, Honeywell & Kest, P.A., and as grounds therefore would show:

FACTS IN SUPPORT OF THIS MOTION

On May 5, 1998 these Defendants filed their original Motion for Attorneys Fees. This motion is filed to amplify and provide additional grounds to the court for an award of attorneys fees to the Defendants. A copy of the Motion dated May 5, 1998 is attached hereto as Exhibit "A" and incorporated by reference. (The exhibits have not been reattached and will be found with the Court’s copy of the original motion.)

On March 4, 1998 Plaintiff dismissed her claim against Orange Dental Associates, Inc. (hereinafter "ODA"), by filing a Fourth Amended Complaint which did not list ODA as a defendant, albeit not in compliance with Rule 41.

On September 22, 1998, the U.S. Magistrate filed her Report and Recommendation on Defendant PANDO & YOCUM's Motion for Summary Judgment as to all of Plaintiff's claims filed May 11, 1998.

The report recommended this Motion be granted. The Magistrate specifically found there was insufficient evidence for the Plaintiff to establish a prima facie case of discrimination. (Report @ pp. 12-15).

On October 14, 1998 this Court entered its Order adopting and confirming the Magistrate's report as an order of the Court, and granting summary judgment. The Clerk entered Final Judgment accordingly on October 15, 1998.

A key issue in the case was Plaintiff's failure to offer any proof of differential application of work rules in order to establish a prima facie case. Defendants alerted the Plaintiff to this key element with each answer filed to the various complaints filed. The Magistrate specifically found there was no record evidence to support this element of her cause of action. (Emphasis added, Report @ p. 13).

Pursuant to the standards set forth in Christianburg Garment Co. v. EEOC, 434 U.S. 412 420, 98 S.Ct. 694, 700, 54 L.Ed. 2d 648, 656 (1978) these Defendants are entitled to an award of reasonable attorneys fees due to the fact they have been subjected to unreasonable and burdensome litigation having no legal foundation.

This total defect in Plaintiff's case was brought to Plaintiff's attention in the Defendants' Motion for Judgment on the Pleadings dated May 2, 1997 and two motions for summary judgment dated February 16, 1998 and May 8, 1998. In spite of no evidence of differential application of work or disciplinary rules the Plaintiff continued with this litigation. Further evidence of Plaintiff and her counsel’s conscious disregard of the duties under the law and/or bad faith is demonstrated by these Defendants’ Motion for Sanctions against Westgate Pizza dated August 27, 1998. A copy of this Motion is attached as Exhibit "B". (The exhibits have not been reattached and will be found with the Court’s copy of the original motion.) What is significant about this is that Westgate Pizza is a corporation co-owned in part by Plaintiff MELISSA BROOKS. Westgate had already paid attorneys fees for willful failure to make discovery by the Magistrate’s Order of January 22, 1998. Just recently, it was learned that Westgate (represented herein also by Plaintiff’s counsel Wayne Bilsky and Wooten, Honeywell & Kest, P.A.) had misrepresented the availability of certain evidence which the Magistrate had ordered produced. As demonstrated in the attached Motion for Sanctions, Westgate and Plaintiff’s counsel had informed the Magistrate certain documents were unavailable. It was then discovered that this was an absolute misrepresentation. The "bad faith" connection between Plaintiff, her corporation and the conduct of Plaintiff’s counsel can not be ignored.

ODA AND PANDO & YOCUM ARE PREVAILING PARTIES UNDER
42 U.S.C. §2000e-5(k) AND 42 U.S.C. §12205

42 U.S.C. § 2000e-5(k) provides, in relevant part, "[i]n an action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee." One of the principal purposes underlying this section is "to protect defendants from burdensome litigation having no legal or factual basis." Christiansburg Garment Company v. EEOC, supra. The Supreme Court, in Christiansburg Garment, delineated the applicable standard:

A district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith... And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense. Id. at 421-422. (emphasis supplied).

Plaintiffs and plaintiffs’ attorneys may be held jointly and severally liable for attorneys fees pursuant to 42 U.S.C. §§1988, 2000e-5(k). Rogers v. Kroger Co., 40 FEP Cases 795, 799 (holding plaintiff and plaintiff’s counsel jointly and severally liable for the sum of $10,000).

The duty to avoid frivolous and bad faith claims also extends to attorneys, independently, as well. 28 U.S.C. § 1927 states in relevant part:

Any attorney or other person ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

In addition, the Eleventh Circuit has stated that:

All attorneys, as "officers of the court", owe duties of complete candor and primary loyalty to the court before which they practice. An attorney’s duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly... We must return to the original principle that, as officers of the court, attorneys are servants of the law rather than servants of the highest bidder.

Malautea v. Suzuki Motor Company, Ltd., 987 F.2d 1536, 1546-47 (11th Cir. 1993).

PANDO & YOCUM and ODA, INC. are clearly "prevailing parties" in this matter. The dismissal of ODA, whether on the merits or not, defines ODA as a prevailing party because it has defeated the litigation and obtained a denial of relief. Weaver v. Toombs, 948 F.2d 1004 (6th Cir. 1991).

The Eleventh Circuit has established criteria with which to assess Plaintiff’s action under the standard outlined in Christiansburg Garment, as follows: (1) whether the Plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to a trial on the merits. Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985); Turner v. Sungard Business Sys., Inc., 91 F.3d 1418, 1422 (11th Cir.1996).

Applying these criteria, the Defendants submit that upon careful examination, Plaintiff’s claim is exactly the type of "burdensome litigation having no legal or factual basis" which Congress sought to prevent by allowing an award of attorneys’ fees to the prevailing defendant.

As set forth in the original Motion for Attorneys’ Fees, Defendants’ counsel repeatedly warned Plaintiff and her counsel of the need to dismiss ODA as a party (even presuit). Plaintiff and her counsel blithely ignored these warnings which merit an award of attorneys fees herein.

In this action, Plaintiff, BROOKS, accused the Defendants of violations of the Pregnancy Discrimination Act. Specifically, Plaintiff maintained that the Defendants discriminated against her by terminating her because of her pregnancy and complaining of "disparate treatment". The proof of disparate treatment or direct evidence of discrimination was essential to a legitimate claim. However, Plaintiff had no evidence of disparate treatment as demonstrated by the Court’s entry of summary judgment.

In dismissing this case on summary judgment, this Court determined that Plaintiff failed to even establish a prima facie case of pregnancy discrimination. As thoroughly outlined by this Court in its Order granting Defendants’ Motion for Summary Judgment, the Plaintiff presented no record evidence demonstrating that she suffered a differential application of work or disciplinary rules. This is remarkable in that Plaintiff stated under oath in answers to interrogatories dated February 2, 1997 (#9) that four named individuals had received different or preferential treatment. (See attached Exhibit "C" -- interrogatories propounded on Plaintiff 12/16/97 and answered by Plaintiff on 2/2/98 but misdated; original answers filed with this Court on 2/17/98). However, each witness listed was deposed and testified to the contrary. The rhetorical question is: what bona fide information or investigation did Plaintiff or her counsel do before answering this question. Plaintiff could have no claim of disparate treatment without evidence of other employees treated differently. When a plaintiff, as here, fails to present any evidence of unlawful discrimination toward her or toward those similarly situated, a grant of an award of attorneys’ fees to the defendant is clearly appropriate. Andrade v. Jamestown Housing Authority, 1996 U.S. App. LEXIS 10007 (1st Cir. 1996).

Plaintiff should have realized, if she had not already, that there was absolutely no evidentiary foundation for her claims. When the defendant gives notice to the plaintiff of a key defect in her case, and the plaintiff fails to reassess her claim, such a refusal is treated an "aggravating factor" by courts in deciding whether to award the defendant attorneys’ fees. See Baker v. McDonald’s Corp., 45 FEP Cases 1505 (S.D. Fla. 1987) aff’d 865 F.2d 1272 (11th Cir. 1988) (noting that it was an "aggravating factor" for plaintiff to continue litigating a groundless claim after his client’s deposition further demonstrated the claim’s weakness and after being urged by opposing counsel to voluntarily dismiss such claim). To be sure, if Plaintiff had voluntary dismissed this case when she could find no proof to support a prima facie case, she could have reduced or avoided her exposure to the payment of Defendant’s attorneys’ fees under the Christiansburg doctrine.

That Plaintiff failed to even establish a prima facie case with respect to her claim or failed to settle this case by prudently taking a voluntary dismissal, amply supports the conclusion that this action was frivolous, unreasonable, and without foundation. Unquestionably, her claim subjected the Defendants to burdensome litigation brought without a legal or factual basis. The Defendants therefore respectfully submit that an Order granting Defendants their attorneys’ fees is appropriate. The Defendants further request that should this Court grant Defendants’ Motion for Attorneys’ Fees, it should reserve jurisdiction over this claim for purposes of determining the appropriate amount of said award. Kreager v. Solomon and Flanagon, P.A., 775 F.2d 1541 (11th Cir. 1985).

See Interstate Underwriting Agencies v. Gunter, 624 F.Supp. 774 (S.D. Fla. 1985) where the court awarded attorneys fees in a civil rights case, holding:

At the very least, the record contains sufficient bases to support defendant’s claim that this suit was without foundation.

Id. at 775.

Subjective "bad faith" is not required for an award of fees. Welch v. Board of Directors of Wildwood Golf Club, 904 F.Supp. 438 (W.D. Pa. 1995). Survival of a civil rights claim of a defendant’s motion to dismiss does not preclude assessing fees or a finding that the plaintiff’s action is ultimately "frivolous". Id. at 441.

This Court has granted such fees and costs under similar facts. Ellis v. Emro Marketing Co., case number 96-1233-CIV-ORL-18B (M.D. Fla. 1998). The Court granted Defendant’s motion for attorneys’ fees against both the Plaintiff and her counsel under the ADA, where summary judgment had been granted for failure to offer evidence of a prima facie case of disability discrimination.

The Plaintiff cannot escape liability based on the advice or actions of her attorney. Puglisi v. Underhill Park Taxpayer Assoc., 964 F.Supp. 811, 816 (S.D.N.Y. 1997). Since it cannot be said that Plaintiff did not "know" the identity of her employer, she should also bear responsibility for the attorneys fees and costs incurred in this action by ODA, since at all times the attempted claim against ODA was "frivolous, unreasonable and without foundation."

CONCLUSION

The Defendants request this Court enter judgment against Wayne Bilsky, Esquire and Wooten, Honeywell & Kest for the attorneys’ fees and costs incurred in this Court in defending against these meritless claims due to the Plaintiff and her counsel’s intentional failure to comply with the requirements of the law set forth herein.

The Defendants further request this Court find that the Defendants are the prevailing parties under the statutory claim asserted by the Plaintiff, and award the Defendants their reasonable attorneys fees and costs incurred as against the Plaintiff MELISSA BROOKS and Wooten, Honeywell & Kest, P.A.

In the event the Court grants this Motion, counsel will file the appropriate fee and cost affidavits at that time.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by hand delivery this day of May, 1999 to: Wayne W. Bilsky, Esq., P.O. Box 568188, Orlando, FL 32856-8188.

Respectfully submitted,

__________________________________
Marc P. Ossinsky, Esquire FBN: 438588
Marc P. Ossinsky, P.A.
210 N. Wymore Road
Winter Park, Florida 32789
Phone: 407/629-2484 Fax: 629-4429
Attorney for Defendants ODA and PANDO & YOCUM, P.A.