But before that decision was issued, the defendant had sought to recover its attorneys fees under the heavy burden of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which requires a showing that the case was frivolous. Initially successful, the district court awarded approximately $200,000 in attorneys fees --- apportioning $10,000 to the plaintiff and $190,000 to the plaintiff's counsel. But that was to be, or so I would think, a pyrrhic victory.
Because it was back to the 11th Circuit, which today spent 42 pages -- concurring, once again as to just how weak the plaintiff's case was, but finding that it did not fall over that fine line into frivolousness. Cordoba v. Dillard's Inc. (11th Cir. 8/4/05) [pdf].
Not content to stop at that determination, the Court turned to the manner in which the counsel for the defendant had handled the case noting among other things in its five page "postscript":
We note that Dillard’s might have avoided much of the expense of defending Cordoba’s claims had it conducted this litigation differently. By our calculations, it appears that more than $75,000 of the fees and expenses awarded were incurred before Groo’s deposition was completed. Moreover, more than $50,000 in fees were related directly to discovery regarding Cordoba’s alleged disability, another $23,000 was expended procuring expert testimony regarding her condition, and the bulk of Dillard’s memorandum of law in support of its motion for summary judgment focused on the question whether Cordoba’s heart condition was a disability under the ADA. All this work ultimately proved unnecessary.Following an extended discussion of why the motion for summary judgment had not been filed earlier, the Court concluded:
But if, as we think is more likely, the district judge is somewhat more flexible than Dillard’s represented at oral argument, then the unnecessary cost and expense is attributable instead to Dillard’s failure to move for summary judgment on the knowledge issue as soon as was practical—whether because it misjudged the district judge’s likely response to such a motion or because Dillard’s itself did not perceive Cordoba’s claims to have been as frivolous as it now argues they were.Ouch.
About the kindest thing that was said was a footnote from the Court:
This observation is, of course, made in hindsight. We would not ordinarily fault a litigant for having failed to move for summary judgment at the precise point, identified after the fact, that such a motion would likely have been granted. But given that Dillard’s now argues that Cordoba’s case was completely frivolous, we think it is fair to ask in hindsight why Dillard’s did not seek to bring this to the court’s attention at an earlier point in time.Hindsight. If only we could possess it at the beginning.