Bludworth v. Hoke ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20925
No. 95-20168
Summary Calendar
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JED BLUDWORTH and JONELL BURNETT,
Plaintiffs-Appellees,
VERSUS
BUBBA HOKE, BARRY GRESHAM, and WALKER COUNTY, TEXAS,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-398)
_________________________
November 21, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Donald Hoke, Barry Gresham, and Walker County (“defendants”)
appeal a default judgment, two evidentiary rulings, and an award of
attorney’s fees. We affirm as to the default judgment and
evidentiary rulings and remand for reconsideration of the amount of
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
attorney’s fees.
I.
Jed Bludworth and Jonell Burnett (“plaintiffs”) brought this
§ 1983 action against Walker County and two of its sheriff’s
deputies, Hoke and Gresham (“deputies”), alleging that the deputies
forced their way into Burnett’s house, brutally assaulted
Bludworth, and arrested and imprisoned Bludworth without cause.
Defendants filed a timely motion to dismiss for failure to state a
claim, which the district court denied, and the parties engaged in
substantial discovery during the following twelve months.
Defendants later filed an answer, one week before the scheduled
start of trial and eleven months after it was due. They also filed
a portion of a proposed pretrial order the following day.
Plaintiffs moved to strike the untimely answer, and the court
issued a “judgment nil dicit,” striking the answer and accepting
the allegations of the complaint as true.
After a trial on damages, a jury awarded Bludworth and Burnett
$10,000 each for mental anguish and $50,000 each in punitive
damages. The court then awarded them $37,800 in attorney’s fees.
II.
A.
Defendants argue that the district court erred in granting
“judgment nil dicit.” The district court entered the judgment
because defendants first failed to file a timely answer and then
2
filed an untimely one in bad faith. As defendants answered eleven
months late, and the court had reminded them on several occasions
of the need to file an answer, the court found that their delay in
answering was willful. The court also found that the late answer
was an improper general denial, as it failed to admit many facts
that were not reasonably in issue. Because defendants had
completed sixteen months of discovery before making the general
denials on the eve of trial, the district court concluded that they
did not answer in good faith.
Defendants contend that they avoided default by (1) presenting
meritorious defenses in their motion to dismiss, motion for summary
judgment, and proposed pretrial order; (2) showing good cause for
their failure to answer timely; (3) actively defending the suit;
and (4) causing no prejudice to plaintiffs. They also argue that
default judgment is improper when defense attorneys, rather than
defendants themselves, cause the default.
Plaintiffs respond that the district court’s finding that
defendants willfully failed to answer is not clear error.
Plaintiffs also argue that defendants have never presented
meritorious defenses, as the late answer is an invalid general
denial, and the proposed pretrial order was never entered. In
their reply, defendants concede that reversal is not mandatory;
rather, they ask us to exercise our supposed discretion to reverse
the district court’s exercise of its discretion.
B.
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We interpret the “judgment nil dicit” as an entry of default
judgment pursuant to FED. R. CIV. P. 55(b)(2), which permits a
district court to enter a judgment of default against a party who
has appeared in an action but failed to plead. We review a
district court’s judgment of default for abuse of discretion and
its subsidiary findings of fact for clear error. CJC Holdings v.
Wright & Lato, 979 F.2d 60, 63-64 (5th Cir. 1992). Because we
favor adjudicating cases on their merits, “even a slight abuse [of
discretion] may justify reversal.” Id. at 63 n.1 (quoting Williams
v. New Orleans Pub. Serv., 728 F.2d 730, 734 (5th Cir. 1984)); In
re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992).
We must determine whether there is “good cause” to set aside
the default. We may consider a variety of factors, including
“whether the default was willful, whether setting it aside would
prejudice the adversary, and whether a meritorious defense is
presented.” CJC Holdings, 979 F.2d at 64. If a defendant’s
failure to plead does not result from excusable neglect, it is
within the district court’s discretion to enter default judgment
without considering other factors. Id.; Dierschke, 975 F.2d at
184.
C.
The district court found that defendants willfully failed to
file a timely answer, implicitly rejecting their claim of excusable
neglect. The court found that the delay was willful because (1) it
asked defendants several times to file an answer, and (2) defen-
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dants “have no explanation for the eleven-month delay.” This
finding is not clear error.
Defendants first contend that the district court reminded them
only once, not several times, of the need to file an answer. Their
only support for this contention is their attorney’s affidavit. We
accept the district court’s version of what occurred.
Defendants next argue that the district court ignored
conclusive proof that their neglect is excusable. The district
court observed in its opinion on the “judgment nil dicit” that
defendants had offered no explanation for their failure to file a
timely answer. In their motion to set aside the judgment,
defendants claimed that they had prepared an answer months earlier
but forgot to file it. The district court denied the motion,
implicitly rejecting this excuse.
The district court’s disbelief is not clear error. First,
defendants failed at least twice——once after the motion to dismiss
was denied and once after the conceded warning——to file their
answer. Second, the answer they did eventually file violated FED.
R. CIV. P. 8(b), which prohibits general denials. Defendants admit
as much, arguing that the pretrial order superseded the pleadings
and relieved them of the need to file an answer meeting the minimal
requirements of the Federal Rules of Civil Procedure. Third,
defendants took a contrary position in the district court, arguing
implausibly in their motion to set aside the judgment that they had
“admitted to all material factual assertions which they c[ould]” in
their answer. Finally, defendants’ “conclusive[]” proof consists
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only of their own attorneys’ self-serving affidavits and computer
records. Defense counsel overestimate their credibility.
D.
Finally, defendants’ active defense of this case is irrele-
vant. Rule 55 permits judgment by default when a party “has failed
to plead or otherwise defend.” FED. R. CIV. P. 55(a) (emphasis
added). Default judgment is proper on either basis. See generally
6 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 55.03[1] (2d ed.
1991). “[O]therwise defend[ing]” does not save defendants from
their failure to plead.
Defendants’ failure to file a timely answer did not result
from excusable neglect. Thus, the judgment of default is not an
abuse of discretion.
III.
The deputies contend that the district court erred by
(1) excluding their testimony as to their states of mind and
(2) ruling that if the deputies testified about their net worth, it
would permit plaintiffs to introduce evidence of the deputies’
liability insurance. We review a district court’s evidentiary
rulings for clear error. Williams v. Briggs Co., 62 F.3d 703, 707
(5th Cir. 1995).
A.
The deputies contend that evidence of their states of mind is
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relevant to the determination of punitive damages. Under Texas
law, an award of punitives depends in part upon “the degree of
culpability of the wrongdoer.” Alamo Nat’l Bank v. Kraus, 616
S.W.2d 908, 910 (Tex. 1981).
Accepting the allegations of the complaint as true, the
district court read a statement to the jury describing a brutal and
unprovoked assault during which the deputies slammed Bludworth into
a kitchen counter, dragged him into another room by his hair,
shoved his face into a sofa cushion, and responded to Burnett’s
pleas to let her son up and stop suffocating him by lifting
Bludworth up and then kneeing him in the groin and hitting him
several times in the stomach. The district court did not abuse its
discretion by finding that the intent behind the deputies’ actions
spoke for itself.
B.
The deputies next contend that they were entitled to testify
about their net worth, because a defendant’s ability to pay is
relevant to the award of punitive damages. The district court
agreed, ruling that (1) the deputies could inject their ability to
pay into the case, and (2) if they did so, plaintiffs could also
present evidence of the deputies’ ability to pay, including their
liability insurance.
The deputies argue only that the latter ruling violated FED.
7
R. EVID. 411.1 Rule 411 excludes evidence of liability insurance
only as proof of fault; it does not speak to damages. 23 CHARLES A.
WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5364
(1980). This argument is meritless.
IV.
Defendants claim that the district court’s award of $37,800 in
attorney’s fees is excessive, because (1) plaintiffs’ attorneys
failed to keep sufficiently detailed records, (2) plaintiffs
obtained only limited success at trial, and (3) the lead attorney’s
claimed billing rate is exorbitant. We review the district court’s
award of attorney’s fees for abuse of discretion and findings of
fact supporting the award for clear error. Shipes v. Trinity
Indus., 987 F.2d 311, 319 (5th Cir.), cert. denied, 114 S. Ct. 548
(1993). The district court awarded plaintiffs $36,400 for 113
hours worked by their lead counsel, at the rate of $325 per hour,
and $1,400 for 22 hours of work by another attorney with a lower
billing rate.
A.
1
The rule states:
Evidence that a person was or was not insured against liability is
not admissible upon the issue whether the person acted negligently
or otherwise wrongly. This rule does not require the exclusion of
evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias or
prejudice of a witness.
FED. R. EVID. 411 (emphasis added).
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Defendants’ first two contentions are meritless. First, we
have reviewed the time records and found them to be “sufficiently
detailed to allow the [district] court to make an independent
evaluation of whether the hours claimed are justified.” In re
Lawler, 807 F.2d 1207, 1212 (5th Cir. 1987).
Second, $37,800 is not excessive in light of "the significance
of the overall relief obtained." Hensley v. Eckerhart, 461 U.S.
424, 435 (1983). Bludworth and Burnett each received $10,000 for
emotional harm and $50,000 in punitive damages. If the deputies
truly believe that the award of $100,000 in punitives is a poor
result for plaintiffs, the jury should have awarded more.
B.
Defendants are correct that $325 is a high hourly rate in the
Houston market. Plaintiffs prepared a memorandum on fees awarded
in other cases in Houston, however, showing that awards of up to
$300 have not been uncommon. Defendants countered with evidence of
only (1) the rate awarded in one old case and (2) their own billing
rate of $100 per hour. Plaintiffs observe:
While [defense] counsel’s hourly rate is undoubtedly
justified, given his manifest command and mastery of the
Federal Rules of Civil Procedure . . . the rate charged
by [defense counsel], who presented no controverting
evidence or affidavits to establish the reasonableness of
plaintiffs’ attorney’s fees[,] fails to present any
meaningful challenge to the district court’s award.
Plaintiffs are correct that based upon the lopsided record before
the district court, its finding that $325 is a reasonable hourly
rate is not, by itself, clear error.
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C.
A district court may not base its fee award only upon awards
in other cases, however; instead, it must consider the twelve
Johnson factors in determining the amount of a reasonable fee.
Cobb v. Miller, 818 F.2d 1227, 1231 (5th Cir. 1987). These factors
include the skill necessary to litigate the case, the time and
labor required, the difficulty of the questions presented, time
limitations, and counsel’s experience. Johnson v. Georgia Highway
Express, 488 F.2d 714, 717-19 (5th Cir. 1974). While we need not
remand solely because a district court fails to make solid findings
on each of the twelve Johnson factors, we must remand when the
record does not clearly indicate that the district court considered
those factors. Cobb, 818 F.2d at 1232.
The district court did not write an opinion on its fee award.
Instead, the court’s conclusions appear in an excerpt of a hearing
transcript, in which the court made only two relevant findings:
(1) that plaintiffs are entitled to fees for all of the hours
claimed and (2) that “for a [p]laintiff’s civil rights lawyer
operating in South Texas under the practical and legal constraints
. . . $325 an hour is a reasonable rate for reasonably necessary
time spent.”
While the district court’s reasoning appears sound, it is also
incomplete. Under Johnson, a district court must make an individu-
alized fee determination. Obviously, a court would abuse its
discretion by awarding the same amount in every case; similarly, a
determination based solely upon rates awarded in other cases,
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without consideration of whether those cases are comparable in
light of the Johnson factors, would warrant reversal.
We may affirm only after reviewing a record that demonstrates
that the court’s discretion was guided by proper factual and legal
criteria. Blanchard v. Bergeron, 893 F.2d 87, 89 (5th Cir. 1990).
This appears to have been a straightforward case for plaintiffs,
especially in light of the shortcomings of defense counsel, and
$325 per hour is at the high end of the range of reasonable hourly
rates. The district court should have explained its award in light
of the relevant Johnson factors.
We AFFIRM the “judgment nil dicit” and evidentiary rulings and
REMAND for reconsideration of the reasonable amount of attorney’s
fees.
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