Mireles v. Arthur Brothers Inc ( 1997 )


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  •                 UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    Nos. 95-40874, 95-40889,
    95-40910, 96-40333, 96-40451
    Summary Calendar
    OSCAR GUERRA,
    Plaintiff-Appellant,
    VERSUS
    CELANESE CORP.; CELANESE CHEMICAL CO; ARTHUR BROTHERS INC.,
    Defendants-Appellees.
    ISRAEL TREVINO,
    Plaintiff-Appellant,
    VERSUS
    CELANESE CORPORATION; CELANESE CHEMICAL; ARTHUR BROTHERS INC.,
    Defendants-Appellees.
    EUGENIO MIRELES; BARTOLO MENDIOLA; ISRAEL TREVINO;
    FRANCISCO GONZALES,
    Plaintiffs-Appellants,
    VERSUS
    ARTHUR BROTHERS INC.,
    Defendant-Appellee.
    EUGENIO MIRELES; BARTOLO MENDIOLA; ISRAEL TREVINO;
    FRANCISCO GONZALES,
    Plaintiffs-Appellants,
    VERSUS
    ARTHUR BROTHERS INC.,
    Defendant-Appellee.
    OSCAR GUERRA,
    Plaintiff-Appellant,
    VERSUS
    CELANESE CORPORATION; CELANESE CHEMICAL CO; ARTHUR BROTHERS INC.,
    Defendants-Appellees.
    Appeal from the United States District Court
    For the Southern District of Texas
    (C-80-CV-115)
    August 14, 1997
    Before JONES, DeMOSS and PARKER, Circuit Judges.
    PER CURIAM:*
    The Appellants, Oscar Guerra, Israel Trevino, Eulogio Mireles,
    Bartolo Mendiola, and Francisco Gonzales, filed suit against the
    Appellees for employment discrimination under Title VII (42 U.S.C.
    *
    Pursuant to Local Rule 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in Local Rule 47.5.4.
    2
    § 2000e-5(f)(3)).         Following settlement of their dispute, the
    Appellants sought an award of attorneys' fees pursuant to 42 U.S.C.
    § 1988.      The district court denied the Appellants’ motion for
    attorney fees.    We affirm in part, and reverse and remand in part.
    FACTS AND PROCEEDINGS BELOW
    Five Mexican-American plaintiffs brought three civil rights
    actions to complain of discriminatory employment practices at a
    Celanese Corporation (“Celanese”) chemical plant in Bishop, Texas.
    Appellants were employed by Arthur Brothers, Inc. (“ABI”), a
    contracting firm that provided maintenance and operating employees
    at Celanese.     Appellants alleged that Celanese and ABI denied them
    and other Mexican-American workers an equal opportunity to compete
    with Anglos for the preferred jobs at Celanese, leaving Mexican
    Americans behind at ABI in disproportionate numbers while the
    contractor’s     Anglo     employees   were    being   promoted   to   steady
    employment at Celanese.
    1. Mireles
    In 1975 Mireles, Mendiola, Trevino and Gonzalez (referred to
    collectively     as      “Mireles”)    filed     charges    of    employment
    discrimination with the Equal Employment Opportunity Commission
    (“EEOC”).    Mireles claimed that ABI had discriminated against him
    on the basis of his Mexican national origin.           After receiving his
    right to sue letter, he filed a class action complaint on October
    28, 1976 against ABI.       During the course of discovery, he obtained
    3
    information that indicated substantial involvement by Celanese
    managers and supervisors in decisions affecting employment with ABI
    and with opportunities to compete for job openings at Celanese.
    Mireles moved to join Celanese as a defendant.           The district court
    never ruled on that motion.      Mireles later moved to file an amended
    complaint naming Celanese as a defendant. That motion was granted,
    but no   amended   complaint     was   ever   filed.       However,      Celanese
    subsequently filed pleadings in the Mireles case referring to
    itself as “defendant Celanese” and seeking various forms of relief
    from the court.      Celanese eventually entered into agreements,
    pursuant to which it paid the Mireles plaintiffs $24,000 in return
    for release from liability in the Mireles litigation.              The release
    expressly excluded any claims for attorneys’ fees and costs of the
    litigation.
    The district court denied Mireles’s motion for attorney fees
    based on a finding that Celanese was not a party to that case.
    2. Trevino
    Israel   Trevino,   while    remaining      a   party   to   the    Mireles
    litigation, filed a new charge with the EEOC in 1979, alleging
    Celanese and ABI were jointly responsible as employers for the
    discriminatory practices at the Bishop plant.            Trevino then filed
    a Title VII action against both Celanese and ABI on April 30, 1980.
    The district court denied class certification, granted summary
    judgment against    Trevino    and     awarded   $24,541     in   fees    to   the
    defendants on the ground that the case was frivolous.                    The fee
    4
    award was entered against Trevino and his counsel, Texas Rural
    Legal Aid, Inc. (“TRLA”).    In 1981, TRLA withdrew as attorney for
    Trevino because he had become ineligible for their services under
    the provisions of 45 C.F.R. § 1611.9 and private counsel was
    substituted. On appeal, this court vacated the orders and remanded
    the case with instructions to consider the joint-employer theory
    argued by Trevino.     Trevino v. Celanese Corp., 
    701 F.2d 397
    (5th
    Cir. 1983).      In April 1992, ABI settled all claims with all
    plaintiffs in the three related suits, including attorneys’ fees.
    In February 1993, the district court held a hearing on the
    1983 remand, but entered no order.       In October 1993, Celanese
    settled with Trevino and the district court dismissed his case in
    December 1993.    The agreement expressly waived any claim Trevino
    had to an attorney fee award against Celanese.      TRLA takes the
    position that they remained a party to the Trevino case after
    private counsel substituted in their stead due to the subsequently
    reversed attorney fee award against them, and that the dismissal
    was not final because they did not receive notice of Trevino and
    Celanese settlement.
    The district court denied attorney fees in Trevino, finding
    that it did not have jurisdiction to reopen the case which had been
    closed more than two years earlier.
    3. Guerra
    Guerra filed his EEOC charges in February 1978 and his Title
    5
    VII and § 1981 actions in 1980 against both ABI and Celanese.     The
    Guerra case otherwise shares its procedural history with Mireles.
    Guerra’s ABI claims were settled in 1992 and his Celanese claims
    were settled in 1994 for $12,500.
    The district court denied attorney fees, finding that Guerra
    was not a prevailing party.
    DISCUSSION
    1. Standard of review.
    On appeal, this Court reviews the district court's ruling on
    a request for attorneys' fees authorized by statute for abuse of
    discretion, and the supporting factual findings are reviewed for
    clear error.    Cooper v. Pentecost, 
    77 F.3d 829
    , 831 (5th Cir.
    1996), quoting, Watkins v. Fordice, 
    7 F.3d 453
    (5th Cir. 1993).    We
    review conclusions of law underlying a denial of attorneys' fees de
    novo.    Texas Food Indus. Assoc. v. United States Dep't of Agric.,
    
    81 F.3d 578
    , 580 (5th Cir. 1996).
    2. Guerra’s prevailing party status.
    We turn first to the district court's ruling that Appellant
    Guerra was not a prevailing party.         We hold the district court
    erred.    The United States Supreme Court in Farrar v. Hobby, 
    506 U.S. 103
    , 
    113 S. Ct. 566
    , 
    121 L. Ed. 2d 494
    (1992), clearly set
    forth the requirement for a plaintiff to be a "prevailing party"
    6
    under 42 U.S.C. § 1988.        The Farrar Court stated that "to qualify
    as a prevailing party, a civil rights plaintiff must obtain at
    least some relief on the merits of his claim.                The plaintiff must
    obtain an enforceable judgment against the defendant from whom fees
    are sought, or comparable relief through a consent decree or
    settlement."      
    Id. 506 U.S.
    at 
    111, 113 S. Ct. at 573
    (citations
    omitted)(emphasis added).             Further, the Court stated that "[a]
    judgment    for    damages    in   any    amount,   whether    compensatory    or
    nominal, modifies the defendant's behavior for the plaintiff's
    benefit by forcing the defendant to pay an amount of money he
    otherwise would not pay" and, therefore, such a plaintiff is a
    "prevailing party" for purposes of attorneys' fees under 42 U.S.C.
    § 1988.    
    Id. 506 U.S.
    at 
    113, 113 S. Ct. at 574
    .
    In    the    instant     case,      Celanese   paid   Guerra    $12,500   in
    settlement of Guerra’s claim. According to the dictates of Farrar,
    the judgment of the district court in finding that Guerra was not
    a "prevailing party" must be reversed.               On remand, the district
    court should determine a reasonable attorney for this case, by
    e.g., calculating the lodestar (reasonable number of hours times
    reasonable hourly rate) then applying the factors set out in
    Johnson v. Georgia Highway Express, Inc., 
    488 F.2d 714
    (5th Cir.
    1974),     and    adjusting    the       lodestar   upward    or    downward   if
    appropriate.      See Riley v. Jackson, Mississippi, 
    99 F.3d 757
    , 760
    7
    (5th Cir. 1996).1
    3. District court jurisdiction to award fees in Trevino.
    The district court held that it had no authority to award
    attorney fees in Trevino because the order of dismissal was entered
    more than two years prior to TRLA’s motion for attorney fees and
    there was no basis alleged by TRLA for the district court to
    exercise jurisdiction over Trevino in 1996.      We agree.   Appellants
    advance no arguable basis for district court jurisdiction over the
    Trevino case in 1996.      Seeing none ourselves, we affirm.
    4.       Was Celanese subject to the district court’s jurisdiction in
    Mireles?
    The district court declined to award attorney fees in Mireles
    because it found that Celanese was not a party to that case.
    Celanese contends that Mireles’s complaint did not state a cause of
    action against Celanese and that such complaint was never properly
    served on Celanese. However, Celanese waived these defenses. Rule
    12, FED.R.CIV.P., provides:
    A defense of lack of jurisdiction over the person,
    improper venue, insufficiency of process or insufficiency
    of service of process is waived . . . if it is neither
    made by motion under this rule nor included in a
    responsive pleading or an amendment thereof permitted by
    Rule 15(a) to be made as a matter of course.
    1
    A “reasonable” fee for           a prevailing party under the
    circumstances of a particular      case may be a low fee or no fee,
    
    Farrar, 506 U.S. at 115
    , 113        S.Ct. at 575, in which case the
    district court need not recite     each of the Johnson factors or even
    do the lodestar calculations.       
    Id. We express
    no opinion as to
    what a reasonable fee might be     in these cases.
    8
    The record in Mireles reveals no motion pursuant to Rule 12 or
    objection in a responsive pleading after Mireles attempted to join
    Celanese as a party to the case.   In fact, Celanese filed pleadings
    in the case referring to itself as a defendant and entered a
    settlement agreement with Mireles in satisfaction of Mireles’s
    claims asserted in the case, which expressly reserved the attorney
    fee issue.   We therefore find that Celanese waived the argument
    that it was not a party to the suit.     Further, it is clear under
    Farrar that Mireles, like Guerra, met the criteria for establishing
    that he was a prevailing party in the suit.     Farrar, 506 U.S. at
    
    111, 113 S. Ct. at 573
    .      We therefore reverse the denial of
    attorney fees in this case as well and remand for a determination
    of the appropriate amount of fees.
    CONCLUSION
    For the foregoing reasons, we affirm the district court’s
    denial of attorney fees in Trevino, 95-40889, and reverse the
    denial of attorney fees in Guerra, 95-40874 and 96-40451 and
    Mireles, 95-40910 and 96-40333.    We REMAND Guerra and Mireles for
    the district court to determine a reasonable amount of attorney
    fees.
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