Houston v. City of Cocoa Defendants' Comments to Report and Recommendation of Magistrate Judge
Public Court Documents
November 23, 1992

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Brief Collection, LDF Court Filings. Houston v. City of Cocoa Defendants' Comments to Report and Recommendation of Magistrate Judge, 1992. 113b897f-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6c35774a-d15e-4ce4-b0fa-1aeac00c3842/houston-v-city-of-cocoa-defendants-comments-to-report-and-recommendation-of-magistrate-judge. Accessed April 27, 2025.
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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