Bilbro v. Thomas ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
JASPER LEE SCOTT,
Plaintiff,
v.
WALTER BILBRO, JR.,
Defendant-Appellant,
No. 95-2005
and
JERRY THOMAS, individually and as
Police Chief of the City of
Hampton; BILLY SANFORD, Officer,
individually and as a City of
Hampton Police Officer; CITY OF
HAMPTON, a municipal corporation,
Defendants-Appellees.
JASPER LEE SCOTT,
Plaintiff-Appellant,
and
UNITED STATES OF AMERICA,
Plaintiff,
v.
JERRY THOMAS, individually and as
Police Chief of the City of
No. 95-2041
Hampton; BILLY SANFORD, Officer,
individually and as a City of
Hampton Police Officer; CITY OF
HAMPTON, a municipal corporation,
Defendants-Appellees,
and
WALTER BILBRO, JR.,
Defendant.
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JASPER LEE SCOTT,
Plaintiff-Appellant,
and
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALTER BILBRO, JR.,
Defendant-Appellant,
No. 95-2421
and
JERRY THOMAS, individually and as
Police Chief of the City of
Hampton; THE CITY OF HAMPTON,
VIRGINIA, a municipal corporation;
BILLY SANFORD, Officer, individually
and as a City of Hampton Police
Officer,
Defendants-Appellees.
Appeals from the United States District Court
for the District of South Carolina, at Beaufort.
Cameron McGowan Currie, District Judge.
(CA-93-1029-9-22)
Argued: March 6, 1996
Decided: April 3, 1996
Before HALL, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
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COUNSEL
ARGUED: Lawrence John Rosintoski, North Charleston, South Car-
olina; Herbert Wiley Louthian, Sr., LOUTHIAN & LOUTHIAN,
Columbia, South Carolina, for Appellants. Mary Gordon Baker,
Assistant United States Attorney, Charleston, South Carolina, for
Appellees. ON BRIEF: J. Preston Strom, Jr., United States Attorney,
Charleston, South Carolina, for Appellee United States; Sandra J.
Senn, STUCKEY & SENN, Charleston, South Carolina, for Appel-
lees Thomas, Sanford, and City of Hampton.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jasper Lee Scott appeals the district court's denial of his claim for
attorney's fees under 42 U.S.C. § 1988, and Walter Bilbro, Scott's
attorney, appeals various issues concerning the district court's imposi-
tion of sanctions on him pursuant to Fed. R. Civ. P. 11. Finding that
the district court did not abuse its discretion in either instance, we
affirm.
I
In July 1994, Scott was awarded a judgment for $73.00 in his civil
rights action against the City of Hampton, South Carolina, Police
Chief Jerry Thomas, and Officer Billy Sanford (the Defendants).
Despite Scott's minimal success, Bilbro moved for over $45,000 in
attorney's fees and costs pursuant to 42 U.S.C.§ 1988. The Defen-
dants, however, responded by noting that they had served Bilbro with
an Offer of Judgment (the Offer) pursuant to Fed. R. Civ. P. 68 for
$7,500 in December 1993, which precluded Scott from recovering
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attorney's fees that were incurred after service of the Offer. See
Marryshow v. Flynn, 986 F.2d 689, 691 (4th Cir. 1993).
Before the district court, Bilbro initially denied that he received the
Offer in December 1993; instead, he claimed that he did not receive
the Offer until July 1994. But, when Bilbro was confronted by sub-
stantial evidence showing that he had received the Offer in December
1993, he subsequently claimed before the district court that he was
never properly served with the Offer pursuant to Fed. R. Civ. P. 5(c)
because the Defendants did not include or attach a certificate of ser-
vice with the Offer.
After holding an evidentiary hearing, the district court found that
Bilbro had violated Rule 11 and found him guilty of criminal con-
tempt for violating 18 U.S.C. § 401(1). Accordingly, the district court
fined Bilbro $5,000 for violating Rule 11 and ordered him to pay the
attorney's fees ($9,828.91) that the Defendants had incurred in
responding to Bilbro's fee petition. Additionally, the district court
fined Bilbro $5,000 for violating § 401(1), but it ordered the fine to
run concurrent with the fine for violating Rule 11. Finally, the district
court found that it would be inappropriate to award Scott attorney's
fees in light of his limited success and Bilbro's behavior. Bilbro and
Scott then noted their appeals.
II
Bilbro's major contention is that the district court abused its discre-
tion by overlooking substantial evidence allegedly showing that he
did not receive the Offer until July 1994. In the alternative, he con-
tends that (1) he had a nonfrivolous argument that he was not properly
served with the Offer because he did not receive a certificate of ser-
vice, (2) the district court abused its discretion by not holding an evi-
dentiary hearing concerning the time spent by the Defendants'
attorneys responding to his fee petition, and (3) the district court's
sanctions were excessive. Scott's lone contention is that the district
court abused its discretion in denying him attorney's fees.
Our review and consideration of the pertinent case law, the record,
and the parties' briefs and arguments have revealed that this appeal
is without merit. Accordingly, we affirm the judgment of the district
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court for the reasons stated in the district court's very thorough and
exhaustive opinions. Scott v. Thomas, C/A No. 9:93-1029 (D.S.C.
April 19, 1995); Scott v. Thomas, C/A No. 9:93-1029-22 (D.S.C. June
19, 1995).
AFFIRMED
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