Houston v. City of Cocoa Defendants' Comments to Report and Recommendation of Magistrate Judge

    UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 

ORLANDO DIVISION
CASE NO. 89-082-CIV-ORL-19

BEATRICE HOUSTON,
MOSES WILLIAMS, et al.,

Plaintiffs,
v s .
THE CITY OF COCOA and 
COCOA REDEVELOPMENT AGENCY,

Defendants.
_______________________________/

DEFENDANTS' COMMENTS TO REPORT AND 
RECOMMENDATION OF MAGISTRATE JUDGE

The Defendants, The City of Cocoa and the Cocoa 
Redevelopment Authority, through their undersigned counsel and 
pursuant to Rule 72, Fed.R.Civ.P., comment on the Magistrate 
Judge's report on Plaintiffs' applications for attorney's fees and 
responses thereto. The Magistrate Judge has provided detailed and 
splendid service in carefully analyzing the voluminous record in 
this matter regarding the issue of prevailing party attorney's 
fees. Plaintiffs initially sought fees exceeding one and.one-'half 
million dollars for the early resolution of a claim against a 
public body which was settled nominally to the satisfaction of all 
parties. The Magistrate Judge has recommended that Plaintiffs' 
Applications for Fees and Expenses be granted in part and that 
Plaintiffs be awarded a total sum of $396,743.80 for fees and 
expenses as prevailing parties in this litigation.



4 X

Defendants would offer the following two comments to the 
Magistrate Judge's Report and Recommendation:

I. Plaintiffs did not establish a constitutional violation 
and therefore are not prevailing parties.

II. The recommended fee is based on an unreasonable number of 
hours.

I. Prevailing Party
The Magistrate's Report and Recommendation makes a 

perfunctory determination that Plaintiffs are "prevailing parties" 
entitled to recover attorneys' fees under 42 U.S.C. §1988, and 
focuses its attention on the issue of the amount of fees to be 
awarded. With all due respect, the issue of "prevailing party" 
deserves further consideration. The undersigned counsel assumed 
responsibility for this matter when prior counsel, Steven D. 
Merryday, left private practice. Although fee counsel for the 
claimants has gone so far as to privately threaten, then suggest to 
the Court that defense counsel was ill-advised in objecting to 
claimants' prevailing party status, both the facts of this case and 
supporting case law support the Defendants' position. This 
position has been maintained by both prior and present counsel.

The Magistrate's report declares Plaintiffs to be 
"prevailing parties" on the basis that Plaintiffs obtained 
"substantial relief" in the litigation. Magistrate's Report, p. 5. 
However, this finding satisfies only the first half of the test for 
determining prevailing party status in a civil rights case. In 
Texas State Teacher's Association v. Garland Independent .School 
District. 489 U.S. 782 (1989), the United States Supreme Court case

2



X

cited by the Magistrate for the standard regarding "prevailing 
party" status, the Court set forth a two-part test which requires 
a finding (1) that a Plaintiff succeeded on a significant issue in 
the litigation, and (2) that Plaintiff achieved a result which on 
a constitutional level materially altered the legal relationship 
between itself and the Defendant. 489 U.S. at 791. See also 
Crowder v. Housing Authority of the City of Atlanta, 908 F .2d 843 
(11th Cir. 1990) .

A finding that Plaintiffs achieved "substantial relief" 
is only half the battle. Nadeau v. Helqemoe, 581 F.2d 275, 281 
(1st Cir. 1978). In addition, Plaintiffs have the burden of 
establishing that Defendants engaged in unconstitutional behavior 
and that their subsequent actions in response to Plaintiffs' 
Complaint were required by law. See Dunn v. The Florida Bax, 889 
F .2d 1010, 1015 n . 3 (11th Cir. 1989), cert, denied. 111 S.Ct. 46 
(U.S. 1990); Church of Scientology Flag Services Organization, Inĉ . 
v. City of Clearwater. 773 F.Supp. 321, 326 (M.D. Fla. 1991); 
O'Connor v. Citv and Countv of Denver, 894 F.2d 1210, 1226 (10th 
Cir. 1990). The relevant analysis hinges on whether Plaintiffs' 
lawsuit resulted in an end to some kind of unconstitutional 
behavior by Defendants. Church of Scientology, 773 F.Supp. at 326. 
See also Tavlor v. Citv of Ft. Lauderdale, 810 F.2d 1551, 1560 
(11th Cir. 1987) .

Accordingly, in order to find that Plaintiffs are 
"prevailing parties" in this action, the Court must make a specific 
finding that Defendants' actions were unconstitutional and that

3



they entered into the Consent Decree under constitutional 
compulsion; a finding that Plaintiffs obtained substantial relief 
is simply not sufficient. Unless there is some judicial 
determination that Defendants' conduct, however beneficial it may 
be to Plaintiffs' interests, is required by law, then Plaintiffs
have not prevailed in the legal sense. Libby v . South_Inter~
Conference Association. 728 F.Supp. 504, 507 (N.D. 111. 1990). 
Plaintiffs must vindicate a civil right in order to be considered 
prevailing parties. Dunn, 889 F.2d at 1014; Casines v. Marchek, 
766 F . 2d 1494, 1503 (11th Cir. 1985).

A prime example of this two-prong standard is found in 
Dunn v. The Florida Bar. 889 F.2d 1010 (11th Cir. 1989), which is 
cited extensively in Defendants' Response in Opposition to 
Plaintiffs' Application for Attorneys Fees and Costs. In Dunn, the 
plaintiffs alleged that a rule of The Florida Bar 
unconstitutionally denied access to the legal system to certain 
individuals, and defendants subsequently amended the rule to 
incorporate changes proposed by plaintiffs. 889 F.2d at 1012. The 
court acknowledged that plaintiffs obtained substantially all of 
the relief which they had sought, but denied plaintiffs' 
application for attorneys' fees because plaintiffs failed the 
second prong of the test requiring a finding of unconstitutional 
behavior, id. at 1018.

In this case, there has been no admission by Defendants 
nor determination by the Court that Defendants engaged in 
unconstitutional behavior. The parties negotiated a settlement of

4



this action relatively soon after the Complaint was filed. There 
was no trial or formal discovery, or any substantive determination 
by the Court regarding the merits of Plaintiffs' claims. The 
Magistrate's Report references the Court's Order Denying 
Defendants' Motion to Dismiss as a basis for supporting Plaintiffs' 
prevailing party status. (Report, p. 4). However, the Court's 
ruling on the Motion to Dismiss merely held that Plaintiffs had 
adequately pled various causes of action against Defendants, not 
that Plaintiffs had proven any violation of a constitutional right.

The record in this case indicates that Defendants' 
response to the Complaint exhibited responsible dispute resolution. 
Defendants moved quickly to settle a dispute that surely would have 
been extremely lengthy, expensive, and divisive to the citizens of 
THE CITY OF COCOA. Very simply, there is nothing in the record to 
establish the "constitutional compulsion" required by law for an 
award of attorneys' fees under 42 U.S.C. §1988, and, accordingly, 
Plaintiffs cannot be found to be "prevailing parties" in this 
action. The Defendants have been represented by able counsel 
throughout this matter and succeeded in resolving this dispute well 
short of full-blown litigation. To reward the Plaintiffs with a 
windfall award which far outstrips the legitimate value of services 
rendered would fail to recognize legitimate efforts toward 
settlement.

5



II. Unreasonable Hours.
Defendants also object to the recommended lodestar fee of 

$332,104.37 because it is based on an unreasonable number of hours. 
The Report's numerous and specific findings of excessiveness, 
inefficiency, and extravagance in Plaintiffs' fee applications make 
it clear that Plaintiffs have not met their burden of establishing 
the reasonableness of the hours spent. See Henseley_v_.— Eckerhart, 
461 U.S. 424, 437 (1983) (Fee applicant's burden), and further
reduction is required. Defendants therefore object to the 
recommendation that Plaintiffs' lodestar hours be reduced by only 
19% (from 4,418 hours less 840 hours for an adjusted total of 3,578 
hours).

Notwithstanding the report's recommendation that 
Plaintiffs' hourly rates be reduced as well, 3,578 hours is an 
unreasonable amount of time to have spent on this litigation and to 
use as a basis for a fee award, see Goodwin v . Metts, 973 F . 2d 378, 
384 (4th Cir. 1992) (affirm reduction of 50% of hours claimed); 
Soell v. McDaniel. 852 F.2d 762, 767, 769 (4th Cir. 1988) (affirm 
reduction of hours from 1,431 to 420 due to "overstaffing”), 
particularly when the case, excepting for the issue of attorneys' 
fees and costs, was settled so quickly and easily. Therefore, the 
Court should exercise the discretion that it has to set a 
reasonable fee, Henseley. 461 U.S. at 437, and reduce further
Plaintiffs' number of hours.

The report is replete with examples of Plaintiffs' 
excessive expenditures of time and failures to exercise the

6



"billing judgment" that is required of a proper fee application. Id 
at 434; and see Norman v. Housing Authority of City of Montgomery, 
836 F . 2d 1292, 1301 (11th Cir. 1983) (excluding those hours "that 
would be unreasonable to bill to a client and therefore to one's
adversary irrespective of the skill, reputation or_experience— of
counsel.") Among other things, the report finds that the 
Plaintiffs made the case "more complex than necessary. . . by. . . 
having brought this action under every seemingly conceivable cause 
of action available to them, even though the remedies sought under 
the various claims was often entirely duplicative," (report p.6, n. 
3); that the Plaintiffs spent "the most hours ever claimed for the 
drafting of a complaint in [the magistrate's] extensive 
experience," (report p.9), which caused "difficulty [in] 
reconciling" the hours claimed (report p. 10); that the time 
devoted to the class certification motion was "immoderate" (report 
p. 10); that the case was handled "inefficiently"; that 
" [ v] irtually every aspect of this case . . . required an 
extravagant expenditure of attorney time," (report p. 12); that "no 
one attorney was in charge of this case" and "[t]o the extent this 
case was managed, it was managed by committee, and it shows in the 
billing," (report p. 15). Finally, the report states that "the 
record in this case abundantly supports a finding of 
excessiveness." (report p. 17).

Given these strong findings, further reduction of 
Plaintiffs' number of hours is required. The trial court is vested 
with the discretion of determining a reasonable fee, Henselev, 461

7



U.S. at 437, and is charged with the responsibility of assuring 
that the fee applicant has exercised billing judgment and to deduct 
the kind of redundant hours that "generally occur when more than 
one attorney represents a client" and, as found in the report 
(p.17), do not make distinctive contributions, Norman 836 F .2d at 
1301-1302; and see Snell 852 F.2d at 769 (reduction for 
"overstaffing and overkill.") The report recommends that 740 hours 
of the 985 hours billed for intra-lawyer conferencing be disallowed 
and that another 100 hours for other tasks be disallowed for 
"various reasons." (report pp. 15—16). This Court should find 
that, just as "the 985 hours billed for intra-lawyer conferencing 
does not represent a reasonable exercise of billing judgment" and 
results in "inefficiency" (report p. 14), the same excesses and
redundancy appears in other tasks performed by the nine attorneys

a s r -
and two paralegals who prepared the case for Plaintiffs.

According to the opinions of Defendants' experts, who 
evaluated the case from the viewpoint of lawyers who work for 
paying clients, see. Norman. 836 F.2d at 1301, the reduced figure 
of 3,500 hours is still more than seven times the amount of time 
that this case should have taken. This conclusion is perhaps best 
borne out by the report's numerous findings that Plaintiffs' 
billing practices do not satisfy the requirements of "paying," 
"[sophisticated clients" who are "scrutinizing their bills and 
demanding efficiency and economy, as well as results" (pp. 11,16, 
17); and the particular finding that "[n]o rational, paying client 
would pay these bills." (report, p. 26).

8



For example, Plaintiffs' "management by committee" 
approach to this litigation, (report p. 15), not only resulted in 
the extravagant amount of time for intra-lawyer conferencing but 
also undoubtedly contributed to the approximately 1,070 hours spent 
on document review and editing other than complaint, and the 
approximately 1,015 hours spent on fact investigation, client 
meetings, and appearances at city board meetings.

Further reduction of Plaintiffs' hours, or an additional 
lowering of hourly rates, is required to bring the award within the 
range suggested by Defendants' experts and their reasoned analyses.

In determining whether further reduction is required, it 
is also important to examine the kinds of difficulties encountered 
by the Magistrate in providing a meaningful analysis of Plaintiffs' 
fee applications. The initial fee application was found to have 
been "something less than well prepared," (report p. 24) and 
included a "massive number of entries which are vague and/or 
ambiguous . . . [and] obscure to the point of meaningless" , 
(report p. 22); and "placed extraordinary demands upon the Court." 
(report, p. 20). In other words, the failures in Plaintiffs' fee 
applications may have ironically created a situation whereby their 
time was not reduced further since "considerable weight" must be 
given to their "[s]worn testimony," Perkins v. Mobile— Housing 
Board. 847 F.2d 735, 738 (11th Cir. 1988), and a detailed analysis 
is virtually impossible. See, Spell 852 F . 2d at 767 (reduction of 
hours by 60% because "petition presents such an inflated 
expenditure of time that it is impossible for this court to cull 
the justified from the unjustified.")

9



Under the circumstances, Plaintiffs should not allowed to 
take advantage of their poor billing practices and the 
"considerable weight" of their sworn testimony and receive a fee of 
that is almost three times the largest amount suggested by any of 
Defendants' three experts. Even after the reductions, the 
recommended fee award represents a massive amount for this case and 
improperly rewards Plaintiffs for having submitted an inflated fee 
application in the first place, which was perhaps nothing more than 
simply "an opening gambit in negotiations." Lewis v. Kendrick, 944 
F .2d 949, 958 (1st Cir. 1991).

Conclusion
For the foregoing reasons, Defendants respectfully recommended 

conclusions as to the "prevailing party" and the recommended number 
of hours awarded.

Respectfully submitted,
MATHEWS, SMITH & RAILEY, P.A.

Bv: A IJ'JJLawrence G. Mathews, Jr. 
Floriaa Bar No. 174813 
Frank M. Bedell 
Florida Bar No. 653942 
Mary M. Wills 
Florida Bar No. 769533

Suite 801 Firstate Tower 
255 South Orange Avenue 
Post Office Box 4976 
Orlando, Florida 32802 
Telephone: (407)872-2200
Telecopier: (407) 432-1038
Attorneys for Defendants

10



CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing 

has been furnished by U.S. Mail this day of November, 1992, to 
James K. Green, Esq., James K. Green, P.A., One Clearlake Centre, 
Suite 1300, 250 Australian Avenue South, West Palm Beach, FL 
33401, Judith E. Koons, Esq., Central Florida Legal Services, Inc., 
Rockledge Plaza, Suite F, 1255 South Florida Avenue, Rockledge, FL 
32955, Julius Levonne Chambers, Esq., Alice L. Brown, Esq., NAACP 
Legal Defense Fund, Inc., 99 Hudson Street, Suite 1600, New York, 
NY 10013, Penda D. Hair, Esq., NAACP Legal Defense and Educational 
Fund, Inc., 1275 K Street, N.W., Suite 301, Washington, D.C. 
20005, Jean M. McCarroll, Esq., Karl Coplan, Esq., Berle, Kass & 
Case, 45 Rockefeller Plaza, Suite 2350, New York, NY 10111, Jon C. 
Dubin, Esq., St. Mary's University Law School, One Camino Santa 
Maria, San Antonio, TX 78228-8602, Bradly R. Bettin, Esq., Amari, 
Theriac, Roberts, Eisenmenger & Woodman, P.A., 96 Willard Street, 
Suite 302, Cocoa, FL 32922.

c :\SCOTTS\Reportobj.fin 
11/23/92 jlw

11