United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT WHITWORTH'S
MOTION FOR ATTORNEY FEES AND EXPENSES
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on the motion of
defendant Kristin Whitworth for attorney fees and expenses
[docket entry 59]. Plaintiff has filed a response and
Whitworth has filed a reply. Pursuant to E.D. Mich. LR
7.1(f)(2), the Court shall decide this motion without a
is, for the most part, a conversion and defamation action.
Plaintiff alleges that in early 2018 he entrusted Whitworth
with the care of his pregnant dog, a Chinese Crested named
Vogue. Whitworth agreed to care for Vogue and her anticipated
litter of puppies for a short period of time. While in
Whitworth's care, Vogue had three puppies. When plaintiff
did not retrieve Vogue and the puppies by the agreed upon
date, Whitworth notified plaintiff that she had placed them
with Kalamazoo County Animal Services (“KCAS”).
The next day, at plaintiff's request, defendant Brenda
Carlson retrieved the dogs from KCAS and agreed to care for
them until plaintiff could pick them up in approximately one
week's time. Before plaintiff did so, Carlson delivered
the dogs to defendant Janette Parker, who allegedly refused
to return them to plaintiff and instead delivered them to an
animal shelter in Canada. Additionally, Parker and Carlson
allegedly defamed plaintiff on social media. In approximately
mid-May, one month after filing the complaint, plaintiff
succeeded in retrieving Vogue and two of the puppies from the
Canadian shelter. The third puppy, apparently, is still
of the complaint asserts a conversion claim against all three
defendants. Counts 2 and 3 assert claims against Whitworth
and Carlson for “claim and delivery” and breach
of contract. Counts 4, 5, and 6 assert claims against Parker
for defamation, tortious interference with a business
relationship, and intentional infliction of emotional
distress. Jurisdiction is based on diversity of citizenship.
Court dismissed the complaint as to Whitworth because the
amount in controversy is insufficient as to her. In its
opinion granting Whitworth's motion to dismiss, the Court
In challenging jurisdiction, Defendant Whitworth argues that
plaintiff is not a resident of Arkansas and that the
jurisdictional amount is not met as to her. The Court need
not decide where plaintiff resides, as the motion is easily
decided based on the amount in controversy.
The value of plaintiff's claim against Whitworth is
essentially nil. According to the complaint, Whitworth
delivered the dogs to KCAS on March 12 and Carlson, at
plaintiff's request, retrieved them the next day. As
Carlson was acting as his agent, plaintiff constructively
regained possession of Vogue and her puppies after a single
day. Assuming that Whitworth is liable to plaintiff on any or
all of the claims he asserts against her (i.e., conversion,
claim and delivery, or breach of contract), the damages
flowing from this one-day deprivation is de minimis and
plainly does not begin to approach the jurisdictional
threshold. As noted, plaintiff does not allege that Whitworth
Plaintiff argues that the $75, 000 threshold is met because
Parker gave the dogs to a Canadian shelter, because Parker
and Carlson defamed him on Facebook, and because he has
incurred substantial attorney fees. Assuming that these
claims against these other defendants could reasonably be
deemed to have a value exceeding $75, 000, these amounts may
not be aggregated to meet the jurisdictional minimum.
Aggregation of claims by a single plaintiff against multiple
defendants is permitted only when the claims are closely
related and give rise to joint liability. See Middle
Tenn. News Co. v. Charnel of Cincinnati, Inc., 250 F.3d
1077, 1081 (7th Cir. 2001); and Chabrowski v.
Litwin, No. CV-16-03766-PHX-DLR, 2017 WL 2462484, at *1
(D. Ariz. June 7, 2017). When the claims against various
defendants are separate and distinct, “the test of
jurisdiction is the amount of each separate claim and not the
aggregate amount of the claims.” Lohden v. State
Farm Mut. Auto. Ins. Co., No. 1:16-CV-00138-GNS, 2017 WL
990465, at *1 (W.D. Ky. Mar. 14, 2017) (quoting
Fechheimer Bros. Co. v. Barnwasser, 146 F.2d 974,
977 (6th Cir. 1945)). See also Siding & Insulation
Co. v. Acuity Mut. Ins. Co., 754 F.3d 367, 373 (6th Cir.
2014) (reaffirming Fechheimer as stating the
“settled general rule.”).
In the present case, there is no legal or logical connection
between Whitworth's actions and those of Carlson and
Parker. Whitworth's alleged interference with
plaintiff's rights to the dogs ended the moment Carlson
retrieved them from KCAS, and Carlson's/Parker's
subsequent interference with plaintiff's rights to the
dogs had nothing to do with what Whitworth had done
previously. Nor is there any conceivable connection between
Whitworth and the defamation allegedly committed by Carlson
and Parker. In short, the claims against Whitworth are
separate and distinct from those against Carlson and Parker,
and there would be no basis for holding Whitworth liable for
the actions of the other defendants. Therefore, it would be
entirely inappropriate for the Court to exercise jurisdiction
over plaintiff's claims against Whitworth on the grounds
that the value of plaintiff's claims against Carlson and
Parker is jurisdictionally sufficient.
Barringer v. Whitworth, Civil Action No. 18-cv-11174
(E.D. Mich. May 31, 2018) (Op. and Order Granting Def.
Whitworth's Mot. to Dismiss, pp. 2-4).
motion now before the Court, Whitworth argues that plaintiff
should not have named her in this “vindictive and
frivolous lawsuit” and that he and his attorney should
be required to reimburse her for the attorney fees and costs
she has incurred in defending it. Def.'s Mot. At 2. She
states that she “has incurred a colossal amount of
legal fees and costs for having to defend this matter and
justice demands that Plaintiff and his counsel should be
ordered to pay [her] attorney fees and costs.”
Def.'s Br. at 8. She seeks $19, 950 in attorney fees,
$986.19 in costs, plus whatever attorney fees and costs she
incurs in connection with this motion. See Bruch
Aff. at 11; Def.'s Reply at 7.
Fed.R.Civ.P. 54(d)(1), costs are awardable as a matter of
course to a prevailing party. However, the procedure a
prevailing party must follow is to seek costs by presenting a
bill of costs to the Clerk of Court. See E.D. Mich.
LR 54.1. If the party seeking costs is unsatisfied with the
costs awarded by the Clerk, that party may file a motion with
the Court to “review the clerk's action.”
Fed.R.Civ.P. 54(d). See also 10 C. Wright & A.
Miller, Federal Practice and Procedure § 2679,
pp. 493-95 (2014) (“After costs have been fixed by the
clerk, a motion may be made for the judicial review of the
clerk's action. . . . [N]othing normally can come before
the court until the clerk has acted and an objection has been
made.”). Therefore, defendant's motion is denied
without prejudice to the extent she seeks
argues she is entitled to attorney fees under Fed.R.Civ.P.
11, 28 U.S.C. § 1927, and/or the Court's inherent
authority because, in short, “[p]laintiff's
inclusion of [her] in this case despite the fact that she did
not have the dogs and that there were no damages to support
the amount in controversy, constitutes ‘aggressive
tactics that far exceed zealous advocacy.'”
Def.'s Br. at 8. While the Court is not unsympathetic to
defendant's argument, the Court must decline to impose
sanctions against plaintiff or his attorney for naming her in
Rule 11 sanctions are unavailable due to defendant's
failure to comply with that rule's 21-day “safe
harbor” provision. See Ridder v. City ...