If you've been wondering what, if anything, has been happening re: the lawsuit between former SAD63 school superintendent Louise Regan and the SAD63 School Board (that terminated Ms. Regan as superintendent of the district), you are not alone. One does have to wonder why the State Commissioner of Schools has not taken most of this case into her office to decide whether or not the termination was justified. The second level of appeal is the Commissioner's jurisdiction and responsibility after all. And it would certainly stop this bleeding of taxpayer legal costs. This writer has wondered if it is the Commissioner's intention to stall any action on the part of her office until after November 2010 when the current Governor's administration will be out of office and therefore so will be the Commissioner. Of course, it was the Legislature who appointed the Commissioner and one does wonder from time to time just who the Commissioner reports to. It certainly is not us the taxpayers. In the meantime the legal costs continue to mount.
Which takes me to the latest salvo, this one being initiated by the legal counsel for the School Board. And a hearty "BRAVO" for him. (NOTE: The following is taken from public records and which I can therefore now report to you loyal and interested readers.)
What follows is more or less a word-for-word or selected phrase presentation from legal documents that were filed between August 21, 2009 and September 21, 2009 by the two litigating parties. I have not always used quotes because I think that would have been confusing in the wording. Where I thought it appropriate, I have noted "my opinion or thoughts." I have tried, to the best of my ability, given the vast number of pages reviewed, to give you an idea of what was filed and the positions submitted by the opposing counsels.
On August 21, 2009, Bryan M. Dench, Esq., with the firm of Skelton, Taintor & Abbott, P.A. and the lead attorney representing the SAD 63 School Board, filed a motion with the United States District Court, District of Maine for costs and attorney fees relating to the aforementioned legal action. It should be noted that Ms. Regan's legal actions have been not only against the entire SAD63 School Board but also additional individual law suits against five separate members of the Board, namely Dion Seymour (former rep from Holden), Karen Clark (rep from Eddington), Robert Kiah, III (former rep from Holden); Therese Anderson (rep from Eddington), and Linda Goodrich (former rep from Holden). All of these parties are referred to as the DEFENDANTS in the following legal documents and in the next several paragraphs.
To summarize the motion, which was made on behalf of the SAD 63 School Board and all five of the individual Defendants in the referenced matter, Mr. Dench provided various attachments showing which attorneys had worked on the Defendants' case, and the legal fees and costs the attorneys had incurred in defending the lawsuit. These fees and costs are associated with conducting depositions, drafting and revising pleadings and motions, and preparing for and engaging in oral arguments in state and federal courts. Hourly rates for the various attorneys involved ranged from $100. to $260. an hour depending on the level of experience of the individual and his/her position and level of responsibility on the case and within the firm, for example someone who is a law clerk to someone waiting to be admitted to the State Bar to an Associate to an experienced Litigator. The Defendants have incurred costs and attorney fees in the amount of $187,179.98 in defending against the Plaintiff (Regan)'s various civil rights claims.
This motion was, in effect, to recover those costs and fees from the Plaintiff Regan. The legal basis argued in the motion was under 42 U.S.C. section(s)-1983 & 1988. This all relates back to the original hearing before the U.S. District Court where Judge Kravchuk ultimately encouraged (maybe directed, this writer has never been exactly sure if the judge was ordering or recommending) the Plaintiff to take her case to the State Commissioner of Education. Based on the final court ruling (and my personal observation of the judge's questioning and body language during the proceeding) the court stated it found most (but not all) of the Plaintiff's charges to be unnecessary for court resolution (This writer's interpretation). NOTE: You can read more about this earlier court ruling regarding a Summary Judgement in an earlier posting.
This earlier ruling seems to be the basis of declaring the Defendant's victorious in the case overall and therefor grounds for enabling the Defendants to ask the court (same Judge Kravchuk) to qualify the Plaintiff's lawsuit as a "frivolous claim or action". (This writer's interpretation.) This is important because it may be the only basis under which the Defendants can obtain a court judgement requiring the Plaintiff to pay the fees and costs which the Defendants have incurred defending themselves. Since those fees and costs will ultimately be borne by us, the taxpayers, otherwise, this is an important filing. Especially if the court agrees.
So now comes the Plaintiff in response on September 11, 2009 through her counsel Thad Zmistowski, Esq. from the firm of Eaton Peabody objecting to the motion "because the Plaintiff's claim was not frivolous." The Plaintiff's attorney based his objection on three (3) reasons:
(1) Just because the Plaintiff did not prevail (win) in U.S. District Court does not mean her case was frivolous. The Plaintiff's attorney offered several case precedents to support this argument.
(2) That various filings by the Plaintiff and/or responses by the Defendants argued as to whether or not the Plaintiff had (or had not) been provided correct and objective opportunities to predeprivation due process indicated her civil rights claims were not being perceived as "frivolous" by even the Defendants. Furthermore, citing precedent cases which the Plaintiff believed to be relevant, the procedural availability of postdeprivation protection of having her case reviewed by the Commissioner of Education was not necessarily a guarantee of a lack of bias since she had already been termination.
(3) That even if the Defendants are entitled to the attorney fees and costs, the amount being asked for is "grossly exaggerated." The Plaintiff's attorney stated that in the unlikely event the Court determines the Plaintiff's civil rights claim was frivolous, the Defendants should not be awarded fees anywhere near the amount requested. The Plaintiff states any allowed fees should be limited to those fees incurred (only - emphasis added by this writer) in briefing for the civil rights aspect of the argument in the summary judgement materials and attending oral argument regarding same. (NOTE: This means limiting the attorney fees and costs to just what was needed in preparing and presenting for the U.S. District Court hearing for the Summary Judgement and nothing before that time or since. Note: There were County Superior Court hearings before the U.S. District Court and several depositions in preparation for the County court hearing not to mention all the preparatory work that lead up to the U.S. District Court filing all of which amounts to many hours and many $$$.)
Furthermore, Plaintiff argues that she "simply does not have the means to pay the Defendants' attorney fees. She is her family's primary bread winner and has been unable to obtain a position following her very public ordeal and termination." The Plaintiff's attorney cites Circuit court recognition of a plaintiff's ability to pay such an award or the imposition of one that will cause the plaintiff financial ruin. However, the Plaintiff is requesting permission by the Court to avoid having to go through the personal embarrassment of having to disclose her financial condition at this time unless the Court rules her case was frivolous and awards the Defendants a judgement for their attorneys fees and costs.
In Conclusion, the Plaintiff's attorney argued that it is exceedingly uncommon for the Court to rule a plaintiff's case to be frivolous; that while the Court did not agreed with the Plaintiff's position as to the applicability of federal law to her position, there is a "reasonableness" to why she might have thought is applicable and therefore why her case would not be considered frivolous; and finally, that any award to the Defendants should be limited to only those fees and costs that were incurred by the Defendants relating to the preparation for and presentation of the filing before the U.S. District Court requesting a Summary Judgement.
So then came the Defendants' MOTION FOR ATTORNEYS' FEES on September 21, 2009 (to the September 11 response of the Plaintiff):
Mr. Dench and his associate Michael S. Malloy filed a detailed motion continuing the request for attorneys fees pursuant to 42 U.S.C. section 1988 in which they reflect back to Judge Kravchuk's summary judgement in favor of the Defendants making the Defendants the Prevailing Party. Mr. Dench noted that "the applicable appeal time (to Judge Kravchuk's summary judgement) has elapsed without the Plaintiff seeking further review of the Court's dismissal of her civil rights claim, a claim which has been frivolous from the outset of this litigation. The Defendants hereby seek an award of $122,388.50 as a reasonable attorney's fee pursuant to 42 U.S.C. section 1988." Mr. Dench then followed up with documentation of the basis for the calculation of Defendants' attorney fees. Two particular cases are cited: Sullivan v City of Augusta, No. 04-32-B-W (D. Maine June 0, 2009) ---F. Supp.2nd ---, 2009 WL 1621110. Also included is the statement "When a defendant prevails in civil rights litigation, an award of reasonable attorneys' fees may be granted where the plaintiff's case was baseless." Hughes v Rowe, 440 U.S. 5, 14 (1980). "The individual Defendants and SAD 63 are the prevailing parties in plaintiff's section 1983 count. Despite Plaintiff's attempts to delay review of SAD 63's decision to terminate her employment, this Court entered summary judgement for all Defendants on the Plaintiff's section 1983 claim, finding that no due process violation occurred because Maine law 'flatly provides' her adequate procedural safeguards. Rec. Dec. 33-34. Rather than avail herself of her plain statutory remedies under Maine law, Regan advanced a baseless civil rights claim through multiple revisions of her complaint. She conducted far reaching discovery and engaged in bad faith conduct. Indeed, the aggressive posture of Regan and her counsel appears to have been motivated by the allure of economic rewards through litigation. In light of the Plaintiff's conduct, the Defendants should not be further burdened with the cost of self-defense. To this end, the Defendants request a reasonable award of their fees."
Specific issues addressed by the Defendants Counsel of interest are:
I. As Prevailing Parties, the Defendants are entitled to costs and attorney fees. "Prevailing Party" is defined as "one who has been award some relief by the courts." The summary judgement awarded by Judge Kravchuk constituted "an awarded of relief by the court." It also "decided on the merits and relief which it awarded to the Defendants. All federal litigation in this matter has been ended." If the Plaintiff's had wanted to appeal that judgement they needed to do so within the 30 day timeline. They didn't. The judgement now stands for the Defendants.
II. By Resisting the Defendants' Efforts to Engage the Plaintiff in Pre-termination and Post-Termination Hearings, and by Continuing to Assert Constitutional Violations Which Sher failed to Defend, the Plaintiff Continued to Assert a Frivolous Civil Rights Claim.
Among other cases cited, the most interesting quote follows - from Christiansburg, 434 U.S. at 422 (emphasis in original) which has to do with how a Plaintiff may be assessed attorney's fees where:
[a] court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continues to litigate after it clearly became so. 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.
Mr. Dench and Mr. Malloy continue with this argument with other court precedents and their relationship to Ms. Regan's case with specific details worth reading.
III. Attorney's Fees are Appropriate Because of Regan and her Counsel's Bad Faith and Sharp Tactics.
Not only are references made to acts of bad faith, but also acts of bullying Defendant individuals, and involving the police while misrepresenting actions about which she well knew the true facts.
IV. The costs and Fees Sought are Reasonable as they Have been Limited to the Section 1983 Litigation and Reflect the nature of this Litigation, and Apply Prevailing Hourly Rates.
Defense counsel maintained detailed contemporaneous time records. In preparation of this motion, the Defendants scrutinized every line of a 50+ page bill and eliminated dozens of hours of legal time which was incurred defending this dispute but which did not appear clearly related to the section 1983 litigation. This review has eliminated over $70,000 dollars from the total defense bill.
Additionally, the Plaintiff is herself responsible for the high defense costs. On July 15, 2008, Plaintiff objected to this Court's proposed scheduling order, and requested leave to conduct up to fifteen (15) depositions, which is three times the normally permitted by this Court. NOTE: There are several more examples shown where the Plaintiff cause delays and additional costs to the Defendants.
On the same date, September 21, 2009, the Defendants attorney ALSO filed a DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR ATTORNEYS' FEES (This was in Response to the Plaintiff's September 11, 2009 objection to the August 21, 2009 Affidavit in support of Defendants' Motion for Costs and Attorneys' Fees - the first document at the top of this posting -: NOTE These guys had to have very busy those nights getting these responses done!)
Now come the Defendants through counsel and REPLY. And then the attorneys basically state the Plaintiff has failed to adequately oppose the arguments raised in the original Defendants Motion (the AFFIDAVIT) and has not shown that her unsuccessful civil rights claim has a basis in fact or law. Therefore, the court may award feed to the prevailing Defendants in frivolous civil rights cases. Therefore, the Defendants respectfully request that their motion be granted and that the court award them their attorneys' fees.
The reasons set forth are:
1. The Plaintiff's Due Process claims were baseless.
The Plaintiff addressed the SAD 63 Board through counsel when it met to consider her termination. The Plaintiff asked the Commissioner of Education to let her (the Plaintiff) to litigate in court before she (the Plaintiff) invoked her right to appeal her termination. She (the Plaintiff) even withdrew her case from the Maine Human Rights Commission before it could investigate her allegations, which her attorney described to the local newspaper as a "strategic decision to pull the case out of Human Rights and go directly into the courts." The BDN article was cited here. Simply put, the Plaintiff avoided what she sought in the section 1983 claim at every opportunity. The Defendants can imagine nothing more frivolous or circular than filing an expensive lawsuit and seeking attorneys' fees for something that one otherwise avoids.
2. The Plaintiff has not objected to the Defendants' argument that she continued to advance allegations that her privacy, free speech, and equal protection rights were violated.
When called to justify her (the Plaintiff's) decision to include sweeping and baseless allegations in her civil rights count, Plaintiff is conspicuously silent. The Plaintiff has provided no facts or basis for allegations that the Defendants violated her equal protection, privacy, and free speech rights. And she continued to assert those rights in her Second, Third and Fourth Amended Complaints. The court should conclude that, continuing to file such claims after failing to address them in her summary judgement papers and after discovery was completed, the Plaintiff was continuing to advance claims that were frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so - meeting the definition under Christiansburg Garment Co. v Equal Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978). As such, an award of attorneys' fees is justified.
3. The Plaintiff has failed to properly object to the requested fee.
The costs and fees are interrelated because of the number of Defendants and the numerous charges the Plaintiff has brought and the numerous Amended Complaints, not to mention the numerous depositions. The Plaintiff has failed to adequately opposed the Defendants motion with "citations and supporting authorities and affidavits and other documents setting forth or evidencing facts on which the objection is based," unlike the Defendants. The Plaintiff has not identified a single time entry in a bill over 50+ pages long nor a single rate to support her argument that the defense bill contains improper charges.
4. The Plaintiff misstates the Defendants' position regarding discovery in the state court, in a flawed attempt to show that the requested fee is too high.
This relates to the Plaintiff's ongoing (and in the writer's opinion..never ending attempts to add whatever claims she thinks will result in some monetary award) revised claims that are now in state court. The Plaintiff has a history of multiple filings in both federal and state court (talk about a "paper chase" and then the Defendants are constantly trying to respond and "catch up" which only adds more attorney costs and fees - my opinion). Even now, the Defendants are simply seeking an opportunity in state court to challenge claims that were filed after the motion for summary judgement was pending (in U.S. District Court) and which the Defendants have not yet had an opportunity to address.
5. The Plaintiff's financial circumstances should not be considered, uless this Court first concludes that her civil rights action was frivolous, and that the Defendants are entitles to recover a reasonable attorneys' fee.
There are two questions here: (1) Is the Plaintiff liable for the Defendants' attorneys' fees? Is seems the answer to that is if the Court determines that the Plaintiff has filed a frivolous claim against the Defendants (based on the definition and court precedents of a "frivolous" claim). If the court determines that the Plaintiff has filed a frivolous claim, she should be liable for those fees.
The second question is: If the Plaintiff is liable for the Defendants' defense costs, how much should the court award to the Defendants. To make that determination, the Court will have to weigh the Plaintiff's personal circumstances. This writer hopes that if the Court determines the Plaintiff is liable for the Defendants' defense costs, the Court will also take into consideration the personal, financial, emotional and physical costs that have been extracted from the Defendants and their families which has been considerable for some of them.
6. Plaintiff has continually threatened the Defendants that she would recover a higher fee than the one they now seek.
The Plaintiff and her attorney have threatened the SAD 63 Board from the beginning stating it was the Plaintiff's intention to recover not only her attorney's fees of over $150,000 but additional large financial rewards. The Plaintiff continues to prefer to litigate and acts as though she is entitled to compensation for claims that she later added and that have not even been heard - her Whistleblower allegation and her Maine Human Rights act retaliation claim. The Plaintiff speaks as if she has already earned these fees through a "successful prosecution" of claims when in fact the Defendants have not even had an opportunity to answer or otherwise challenge them.
In Conclusion, the Defendants acknowledge that a prevailing civil rights defendant must satisfy a different standard to recover attorneys' fees than a prevailing civil rights plaintiff. However, this is a classic case in which this Court should grant such a request because of the Plaintiff's continued waste of judicial resources, her insistence on litigating at every possible opportunity, and because granting attorneys' fees would further a recognized policy of deterring frivolous claims.
Now we can wait for the hearing to be scheduled at the U.S. District Court. And the beat goes on - and on - and on...
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