Houston v. City of Cocoa Defendants' Response in Opposition to Plaintiffs' Application for Attorneys' Fees and Costs

    UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 

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

BEATRICE HOUSTON, MOSES 
WILLIAMS, et al.,

Plaintiffs,
vs.
THE CITY OF COCOA and COCOA 
REDEVELOPMENT AGENCY,

Defendants.
/

DEFENDANTS' RESPONSE IN OPPOSITION TO PTATNTIFFS' APPLICATION FOR ATTORNEYS' FEES AND COSTS
Defendants, The City of Cocoa and Cocoa Redevelopment

Agency, pursuant to Rule 3.01 of the Local Rules for the United
States District Court, Middle District, submit their Response in
Opposition to Plaintiffs' Application for Attorneys' Fees and
Costs. Defendants' Response consists of the following memorandum
of law, as well as the affidavits of Eli H. Subin, Bonnie S.
Satterfield, Darryl M. Bloodworth and Charles W. McCool, submitted
contemporaneously herewith. (Exhibits "A" through D ).
I. INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiffs filed this class action on behalf of the black
low-income residents of the "historic black community" of The City 
of Cocoa, seeking relief from Defendants' allegedly "discriminatory 
pattern and practice of destructive actions" toward their 
neighborhood. Plaintiffs filed their Complaint on February 1, 
1989, alleging twelve causes of action against Defendants and 
seeking damages and injunctive relief on behalf of the class. 
Plaintiffs' Complaint focused on a city ordinance (7-88) which 
designated redevelopment efforts in Plaintiffs' neighborhood as one 
of twelve projects included in a comprehensive redevelopment plan 
for The Citv of Cocoa, although a subsequent ordinance (21-’83)



deleted the neighborhood from the redevelopment plan prior to 
Plaintiffs filing this lawsuit. Plaintiffs sought to enjoin the 
CITY'S redevelopment activities affecting their neighborhood and to 
require the CITY to take affirmative actions to preserve and 
rehabilitate the neighborhood, as well as substantial money damages 
to the class Plaintiffs.

Once it became clear that the primary genesis for the 
lawsuit was a misunderstanding by Plaintiffs concerning the 
operation and effect of the challenged ordinance, negotiations 
ensued and the parties reached a settlement in principle only 
shortly after the Complaint was filed. On April 24, 1990, the 
parties executed, a Consent Decree which was approved by the Court 
and incorporated into a final judgment. Defendants agreed to 
modify their redevelopment efforts and to take certain actions to 
rehabilitate and improve the neighborhood, and agreed to pay a 
nominal sum ($20,000 total to the 8 named Plaintiffs and nothing to 
the 500 remaining class Plaintiffs). In return, Plaintiffs agreed 
to voluntarily dismiss their Complaint with prejudice.

Despite this negotiated settlement, Plaintiffs have now 
proclaimed themselves "prevailing parties" and seek more than $1.5 
million in attorneys' fees and costs from Defendants. Plaintiffs' 
fee application seeks a 100% multiplier "to compensate for the 
contingent nature of the litigation" on a total lodestar of 
$748,240.50, as compensation for 4,418.3 hours of time for 
attorneys at hourly rates ranging from $125 to $240 and for a 
paralegal and law clerk at hourly rates of $50 and $100. 
Plaintiffs have not filed a Bill of Costs, but refer generally to 
various aggregate costs in their fee application. Plaintiffs seek 
this massive amount even though there was no trial and no formal

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two-item Request fordiscovery (with the exception of a 
Admissions).

Plaintiffs' are not entitled to any award of attorneys' 
fees since they were not "prevailing parties." Even if this Court 
finds that Plaintiffs have prevailed, they are not entitled to an
attorneys' fees and costs award remotely close to $1,517,331.20 
because they have not met the burden of proof as to their 
entitlement to any multiplier, much less a 100% multiplier; the 
hourly rates of the non-Florida counsel used in the lodestar amount 
are unnecessarily high; the attorneys' fees application is replete 
with excessive, redundant or otherwise unnecessary time; and, 
finally, the costs are poorly’ documented and excessive.
II. PLAINTIFFS ARE NOT ENTITLED TO AN AWARD OF ATTORNEYS' FEES 

BECAUSE THEY WERE NOT "PREVAILING PARTIES."
Plaintiffs are not entitled to an award of attorney's 

fees in this matter because they were not "prevailing parties" 
within the meaning of the federal civil rights statute, 42 U.S.C.
§ 1988. Plaintiffs' application assumes that they are prevailing 
parties without offering any factual or legal argument in support 
of that conclusion. However, prior to any determination of the 
merits of Plaintiffs' claims, Defendants entered into a Consent 
Decree which constituted a compromise by both parties. Defendants 
made no admission of liability nor were any concessions required by 
law. Plaintiffs were simply not prevailing parties and are not 
entitled to an award of attorneys' fees in this action.

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A. The standard for awarding attorneys— fees under 42...U..S-._C.r_
5 1988 is discretionary. subnect--to--a--threshold
determination of prevailing party status.
Plaintiffs seek an award of attorneys' fees pursuant to 

42 U.S.C. §1988. As amended, 42 U.S.C. §1988 provides in pertinent 
part as follows:

In any action or proceeding to enforce a 
provision of §§ 1981, 1982, 1983, 1985
1986 of this Title, Title IX of _ Public Law 
92-318, or Title VI of the Civil Rights Act of 
1964, the court, in its discretion may allow 
the prevailing party, other than the United 
States, a reasonable attorneys' fee as part of 
the cost. (emphasis added).

As indicated by the statute, an award of attorneys' fees under 42
U.S.C. §1988 is discretionary. See Texas--State--Teachers
Association v. Garland Independent School— District, 489 U.S. 782
(1989). Furthermore, federal courts interpreting 42 U.S.C. §1988 
have judicially imposed a very strict standard for classification 
as a "prevailing party."

In Garland/ the Supreme Court recently defined a 
"prevailing party" as one who "succeeded on a significant issue in 
litigation" and achieved a result which, on a constitutional level, 
"materially altered the legal relationship between itself and the 
defendant." XI. at 791. A technical victory may be insufficient 
to support prevailing party status. Id- at 792-93. See also 
Crowder v. Housing Authority of the City Qf Atlanta/ 908 F.2d 843 
(11th Cir. 1990).

The test for prevailing party status in the Eleventh
Circuit was set forth in Williams v ._Loath^pburv, 672 F. 2d 549 (5th
Cir. 1982), with two requirements: (1) a causal connection between
the filing of the suit and defendant's subsequent action affording 
some significant relief to plaintiff, and (2) that defendant s 
conduct was constitutionally .required by law, and not a wholly 
gratuitous response to an action thac in itself was frivolous or

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groundless. 672 F.2d at 551. Establishing that Plaintiffs' suit 
was causally related to the Defendants' actions which improved 
their condition is only half of the battle. Nadeau v. Helqemoe, 
581 F.2d 275, 281 (1st Cir. 1978). A plaintiff must additionally 
succeed on a significant issue in the litigation, and show that the 
defendant engaged in unconstitutional behavior and that its 
subsequent actions in response to plaintiff's complaint were 
required by law. See Dunn v. The Florida Bar, 889 F.2d 1010, 1015 
n.3 (11th Cir. 1989), cert, denied. 111 S.Ct. 46, 112 L.Ed.2d 22
(U.S. 1990) (no fees awarded when Defendant voluntarily amended
objectionable rule); Church__ of-- Scientoloqy-- Flag-- Services
organization. Inc, v. City of Clearwater, --- F. Supp. ----, 5
F.L.W. Fed. 393, 395 (M.D. Fla. 1991). O'Connor v. City and County 
of Denver. 894 F.2d 1210, 1226 (10th Cir. 1990) (plaintiffs not
prevailing parties where city voluntarily amended challenged 
sections of city code, since plaintiffs did not meet burden of 
demonstrating unconstitutionality of repealed ordinance).

B. The Consent Decree__specifically— precludes— any
admission of liability bv Defendants-

Plaintiffs' Complaint was filed in February of 1989 and 
within a matter of months the parties reached an agreement in 
principle which subsequently led to the Consent Decree executed in 
April of 1990. The agreement in principle was reached even before 
the Court ruled on Defendants' Motion to Dismiss Plaintiffs 
Complaint.

Xn the parties' joint memorandum seeking approval of the 
Consent Decree, both parties represented to the Court that 
settlement was preferable because litigation would be lengthy and 
expensive for all concerned, "with the ultimate substantive and

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remedial outcomes uncertain." In the Consent Decree itself, 
Defendants did not admit any liability and maintained that the 
claims asserted were without merit, but desired to settle to avoid 
further expense, inconvenience, and the distraction of burdensome 
litigation. See Consent Decree, p.2. Defendants wished to promote 
a new spirit of harmony, cooperation, and unity in the City of 
Cocoa and to collectively and cooperatively address the zoning, 
housing and community development needs of Plaintiffs 
neighborhood. Id. Defendants concluded that settling this lawsuit 
on the terms contained in the Consent Decree was in the best 
interest of the citizens of the City of Cocoa. Id.

Defendants did not at any point concede that any of their 
actions challenged by Plaintiffs were unconstitutional, nor did the 
Court make any such determination. Rather, Defendants made a 
practical decision, based on economic and public policy 
considerations, to compromise with Plaintiffs in resolving a
divisive and potentially costly dispute.

C. Plaintiffs did not vindicate a civil fight at i,ssue 
in the litigation.

Consistent with the policy underlying 42 U.S.C. § 1988 
Plaintiffs must vindicate a civil right at issue in the litigation 
against the violation of that civil right to qualify as prevailing 
parties. Dunn v. The Florida— Sail/ 889 F.2d 1010, 1014.
Achievement of the goal sought in the Complaint does not justify an 
award of attorneys' fees unless that result is required by 
constitutional factors. A plaintiff is not entitled to recover 
attorneys' fees if the defendant simply complies with plaintiff s 
demands and moots the case for reasons unrelated to the potential 
merit of the suit. Whether activated by economic, political, or

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purely personal concerns, a defendant may choose voluntarily to 
make the change sought in the suit rather than undergo protracted 
and expensive litigation. Id. at 1015. Defendants' conduct must 
be required by law and not a wholly gratuitous response for reasons 
unrelated to the potential merit of the suit. If Defendants' 
conduct, although it may be to Plaintiffs' interest, is not 
required by law, then Defendants must be held to have acted 
gratuitously and Plaintiffs have not prevailed in a legal sense.

Id.
In Dunn, decided after the Supreme Court decision in 

Garland, plaintiffs sought an amendment to a rule of The Florida 
Bar regulating unauthorized practice of law. Plaintiffs alleged 
that the rule unconstitutionally denied access to the legal system 
to those unable to pay for matters such as divorce. 889 F.2d at
1011. During the pendency of the action, The Florida Bar Board of 
Governors amended the challenged rule, and included changes 
proposed by Plaintiffs' counsel in a letter to the Bar. !£• at
1012. Plaintiffs subsequently dismissed the case because i_hey 
"obtained substantially all of the relief which they had sought." 
There was no adjudication of the merits of Plaintiffs' claim, id. 
at 1013. The Eleventh Circuit upheld the district court's denial 
of attorneys' fees to plaintiffs, holding that plaintiffs had 
failed the second prong of the beatheybuyv test. Id. at 1018. The 
Eleventh Circuit held that it could not find that defendants took 
their actions under any constitutional compulsion, but rather to 
correct a wrong to serve the best interest of the citizens of the 
state. The court specifically held that considerations of policy 
and strategy, rather than any constitutional directive, motivated

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defendants' conduct, and therefore precluded any award of fees to 
plaintiffs. Id.

Here, Plaintiffs sought to prevent their "displacement 
from their neighborhood, thus "removing them from access to basic 
services and eliminating the black presence from the downtown 
area." See Complaint, J 4. Their Complaint repeatedly refers to 
Defendants' actions of alleged discrimination as depriving 
Plaintiffs of "access to decent, safe, sanitary, and affordable 
housing." See Complaint, KH 25, 86, 90, 91. However, there is no 
constitutional right of access to dwellings of a particular 
quality, nor is the assurance of adequate housing a constitutional 
mandate. T.indsav v. Normet, 405 U.S. 56, 74 (1972). Low income 
minority individuals have no constitutional right to be furnished 
safe, sanitary and decent housing. Jaimes v.— Toledo Metropolitan 
Hnnsinrr Authority. 758 F. 2d 1086, 1101 (6th Cir. 1985). Nor is
there any authority to support a constitutional right to a "black 
presence" in any given geographical location.

The only basis offered by Plaintiffs in support of their 
entitlement to attorneys' fees is that the Consent Decree secured 
"extremely favorable results" for Plaintiffs. See Plaintiffs' 
Application, f 9. However, this self-serving statement, even if 
true, is simply not enough.

Plaintiffs have the burden of demonstrating that 
Defendants' challenged behavior was unconstitutional and the result 
achieved was required by law. However, Plaintiffs cannot (and have 
not even attempted to) demonstrate that Defendants entered the 
Consent Decree under any constitutional compulsion. Rather, it 
appears clearly from the Consent Decree and other settlement 
materials that Defendants settled the action to avoid the expense,

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inconvenience and distraction of litigation, and because they made 
a public policy decision to promote harmony and cooperation with 
the residents of the Plaintiffs' neighborhood. Defendants' actions 
are in harmony with principles of responsible dispute resolution 
and efficient use of the Court system, and should not be punished 
by an improper award of fees.

D. Piihl i r. policy considerations---dictate—  that
Plaintiffs should not be awarded attorneys— fees.

Federal courts have expressed concern that awarding 
attorneys' fees in all civil rights actions where the plaintiff 
obtains some relief will unduly encourage private attorneys general 
to commence all sorts of actions of whatever magnitude, even if of 
negligible constitutional priority. Naprstek v. City of Norwich, 
433 F. Supp. 1369, 1370 (N.D. N.Y. 1977). See also Gpgenside.J^
Arivoshi. 526 F. Supp. .1194, 1197 (D. Hawaii 1981) ("neither
Congress nor the Supreme Court intended that private attorneys 
general need be encouraged to make mountains out of molehills. ) 
Indeed, it was for this reason that Congress specifically 
considered and rejected the option of providing mandatory awards of 
attorneys' fees in civil rights actions, wisely leaving such awards 
to the courts' discretion, to be exercised as each case warrants. 
Id. Moreover, the fear of a significant attorneys' fee award may 
force Defendants to continue litigating an issue, not because they 
wish to establish a legal principle or avoid meeting plaintiff's 
concerns, but solely to escape if possible from onerous attorneys' 
fees. Nadeau v. Helaemoe. 581 F.2d 275, 281 (1st Cir. 1978).

As set forth in the Affidavit of Charles W. McCool 
(Exhibit "D"), the former City Manager of the City of Cocoa, 
efforts by Defendants to resolve this dispute prior to the filing

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of a lawsuit were rebuffed by Plaintiffs' counsel, who repeatedly 
threatened that Plaintiffs' claims would cost the City "multi­
millions" of dollars. Only after HUD representatives intervened 
and discovered that many of Plaintiffs' grievances were based on 
their misunderstanding of the operation and effect of Ordinance 7- 
88 did Defendants perceive any possibility of reaching a 
settlement. A subsequent meeting with Plaintiffs' representatives 
led to the Agreement in Principle which essentially resolved the 
dispute (except for the issue of attorneys' fees). If Plaintiffs 
had pursued meaningful substantive discussions of their claims 
prior to filing the lawsuit, it is likely that the parties could 
have resolved the dispute without the intervening cost, time, and 
animosities engendered by litigation. Plaintiffs brought claims 
that Defendants deemed to be of questionable merit. However, 
Defendants found it in the best interest of all citizens of the 
City of Cocoa to avoid the expense and divisiveness of litigation 
and settle the matter on terms which Defendants would have agreed 
to prior to the filing of this lawsuit. See Affidavit of Charles 
W. McCool (Exhibit "D"). Plaintiffs should not be rewarded for 
"making a mountain out of a molehill" by burdening other citizens 
of the City of Cocoa with unwarranted attorneys' fees.
III. PLAINTIFFS HAVE NOT SHOWN THAT ENHANCEMENT IS NECESSARY.

Courts should not generally increase the requested 
lodestar amount since enhancement is reserved for "exceptional 
cases" in which counsel was retained on a contingent basis and 
there was a "real risk-of-not-prevailing" to some extent. 
Pennsylvania v. Delaware Valley Citizens'— Coupe i.j,— for Clean AiX/ 
483 U.S. 711, 730 (1987); Perkins v. Mobile Housing Board, 847 F.2d 
735, 738 (11th Cir. 1988) (enhancement reserved for "rare cases").

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Exceptional cases require a showing of exceptional results- Nogmah 
v. Housing Authority of City of_Montgomery, 836 F.2d 1292, 1302
(11th Cir. 1988).

In addition to proving that counsel was retained on a 
contingency basis with a risk of not prevailing and that the case 
was exceptional, the party seeking an enhancement bears the burden 
of "adduc[ing] affirmative evidence to show: (1) that it would have 
faced substantial difficulty in locating counsel in the relevant 
market without a contingency multiplier; and, (2) not that the 
legal risks of the particular case warrant enhancement, but instead 
that the rate of compensation for 'contingent fee cases as a class' 
in the relevant market was different from cases in which payment_ 
was certain." Martin v. University of South Alabama, 911 F.2d 604, 
611 (11th Cir.), reh'a en banc denied, 922 F. 2d 849 (11th Cir.
1990). Enhancement must be supported by more than simply 
generalized findings that the number of competent civil rights 
class action attorneys has diminished considerably. Id* at 612. 
The Eleventh Circuit has also stated that enhancement must be 
supported by "specific evidence . . .  to show that the quality of 
representation was superior to that which one would reasonably 
expect in light of the rates claimed." Norman, 836 F.2d at 1302.

In this case, Plaintiffs have not met their burden. 
First and foremost, there is no proof in the application that the 
case indeed was taken on a contingent fee basis. Plaintiffs' fee 
application does not contain a copy of any such agreement, nor is 
there any affidavit testimony as to the particulars of the 
contingent fee arrangement, nor as to the arrangement among the 
three law firms representing the Plaintiffs.

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Moreover, Plaintiffs have not shown how the consent
judgment produced exceptional results, which have been defined as

results that are out of the ordinary, unusual 
or rare. Ordinarily, results are not
exceptional merely because of the nature of 
the right vindicated or the amount recovered.
The law is usually faithful to its teachings, 
and so an outcome that is not unexpected in 
the context of extant substantive law will not 
ordinarily be exceptional.

Norman. 836 F.2d at 1302.
Instead of including a specific showing of the 

exceptional nature of the results obtained by the settlement of 
this litigation, the fee application contains self-serving, 
conclusory affidavits from Plaintiffs' counsel and their two 
experts about the favorable nature of the settlement. Plaintiffs 
supplemental Affidavit of Peter I. Shapiro, served November 1, 
1991, contains but a single paragraph addressing, in general terms, 
the results of the consent judgment and fails to analyze with any 
specificity the substance of the disputed ordinance (7-88) or the 
amended Comprehensive Plan, as enacted pursuant to the Consent 
Decree. Mr. Shapiro's Affidavit does not have the necessary 
framework from which to judge the results of the settlement.. On 
the other hand, the Affidavit of Eli H. Subin (Exhibit "A") 
analyzes the substance of Ordinance 7-88 and the amendments to the 
comprehensive plan and concludes that the same result may have been 
achieved without litigation. (pp. 12, 13). See also Affidavit of 
Bonnie S. Satterfield (Exhibit "B," p.ll). Any plaintiff in civil 
rights litigation must be mindful of the ruling in North Carolina
Dept, of Transportation v. Crest Street Community— Counc — lnc • >
479 U.S. 6 (1986), that an action under 42 U.S.C. §1988 may not be 
maintained solely to recover fees.

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Similarly, Plaintiffs have not submitted "specific 
evidence" to show that the quality of their attorneys' 
representation was superior to that which one would reasonably 
expect from a $220 per hour lawyer who spends 399.3 hours on the 
matter (Penda Hair); a $185 per hour lawyer who spends 325.3 hours 
on the matter (Karl Coplan); a $175 per hour lawyer who spends 
1,873.3 hours on the matter (Judith E. Koons); and a $170 per hour 
lawyer who spends 1,191.2 hours on the matter (Jon C. Dubin).

Plaintiffs' counsel have also failed to submit persuasive 
proof of the "substantial difficulties" in finding counsel in the 
local or relevant market without a contingency multiplier, Martin 
v university of -south Alabama, 911 F.2d at 612, (quoting Delaware 
Valiev II. 483 U.S. at 733). Indeed, on this point, Plaintiffs 
have only submitted the Affidavit of Peter H. Barber, which shows 
no familiarity with Plaintiffs' claims and has but a single 
paragraph devoted to the issue of enhancement, and the Affidavit of 
Robert I. Shapiro which contains only general observations and 
advances a "rationale [which] could be used to justify enhancement 
in almost any civil rights case. . . . [and] a standard [that may] 
be arbitrarily or unjustly applied." Maftjp v. University of South 
Alabama. 911 F.2d at 612. Additionally, Mr. Shapiro's opinions on 
the availability of civil rights counsel are also at odds with
those of Mr. Subin.

Because of the lack of detail contained in Barber's and 
Shapiro's affidavits, this Court should not give much weight, if 
any at all, to their opinions. The Eleventh Circuit in Norman v ._ 

Housing Authority of City of Montgomery. 836 F.2d at 1299, when 
discussing opinion evidence of the reasonableness of the requested 
lodestar rate, stated that, "[t]he weight to be given to opinion

13



evidence of course will be affected by the detail contained in the 
testimony." Here, where Plaintiffs must meet the stiff burden of 
proving that this is a "rare," "exceptional" case, the generalized, 
conclusory statements concerning "the contingency nature of the 
litigation" and the "extremely favorable results" of the litigation 
are not sufficient to justify a multiplier of any amount, much less 
for 100%. Moreover, the other statements concerning the riskiness 
and complexity of Plaintiffs' case and theories are irrelevant to 
the consideration of whether an enhancement is proper, since those 
factors should be reflected in the lodestar, Martin v. Univepsitv 
of Smith Alabama. 911 F.2d 611-612, which in itself is excessive.

IV. THE LODESTAR REQUESTED IS UNREASONABLE.
The calculation of a reasonable attorneys' fee is clearly 

within the discretion of the trial judge, Hensley v. Sckerh^r.t , 461 
U.S. 424, 437 (1983), and is determined by multiplying a reasonable 
hourly rate times the number of hours reasonably expended. Norman, 
836 F.2d at 1299. A reasonable hourly rate has been defined as 
"the prevailing market rate in the relevant legal community for 
similar services by lawyers of reasonably comparable skills, 
experience, and reputation." id;., (citing 8itm—3Ls— Stenson, 465
U.S. 886, 895-96, n.ll (1984)). The Nprman court stated that the 
fee applicant "bears the burden of producing satisfactory evidence 
that the requested rate is in line with prevailing market rates. .

[the] satisfactory evidence necessarily must speak to rai.es 
actually billed and paid in similar lawsuits." Id-

Plaintiffs have not met this burden. Instead, Plaintiffs 
have submitted a generalized "affirmation" of a partner in a New 
York law firm to attempt to justify the higher rates sought; this

14



"affirmation" exhibits no familiarity with the particulars of this 
case, nor with the prevailing market rates in the Middle District 
of Florida, nor with the rates actually billed and paid in similar 
lawsuits. Likewise, the affidavits of Peter Barber and Robert I. 
Shapiro do not address rates actually billed and paid in similar 
lawsuits, and do not establish that it is customary to charge 
$11,190 for the time of a law clerk (Ronald Slye). Finally, 
Plaintiffs have violated the lesson of Hensley that "excessive, 
redundant or otherwise unnecessary" hours should be excluded from
the fee petition. 461 U.S. at 434.

A. The lodestar hours are excessive, redundant or otherwise
unnecessary.
In addition to failing to meet the evidentiary burden, 

Plaintiff's fee application does not follow the Norman court's 
suggested framework which calls for "a summary, grouping the time 
entries by the nature of the activity or stage of the case." 836 
F.2d at 1303. A summary of time spent on this case would have been 
especially helpful in analyzing the massive number of hours 
expended, and Plaintiffs' failure to provide a summary grouping of 
time entries creates a burden which would justify substantially 
reducing the award of fees claimed. For the Court's convenience, 
Defendant has prepared a summary and grouped the approximate time 
entries into seven principal categories.1 When the approximate

"Defendants' summaries (Exhibit "E"), submitted simultaneously 
herewith, reflect approximate amounts of time since w n y o  
Plaintiffs' time records were not broken down by individual task 
for each day. Since the time records of Judith E. Koons that are 
attached to Plaintiffs' Application contain only a daily total for 
her time, Defendants submit contemporaneously herewith as Exhibit 
"F " an exhibit from her deposition, which are her records that 
show the time she recorded daily for each task, as well as a dai y 
total.

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time entries are viewed in terms of the nature of the activity or 
stage of the case, as below, it is clear that Plaintiffs' counsel 
spent,, excessive and redundant time on this case.

Activitv Approximate Hours

1. Meetings, consultations and 
telephone conferences with 985co-counsel

2 . Document review and editing 
(other than Complaint) 1,070

3 . Drafting, editing and 
reviewing the Complaint 250

4 . Legal research and memos of 
law pre-Complaint 330

5. Legal research post-Complaint 160

6 . Fact investigation, client 
meetings; and appearances at 1,015City board meetings

7 . Class certification/4.04 motion 155

Sub'-total2 3,965

In determining whether the hours billed are reasonable,

the fee applicant should bear in mind that , "[h]ours that are not

properly hill Ad to one's client also are not properly billed to
one's adversary pursuant to statutory authority." Bepslev v,. 
Pnkerhart. 461 U.S. 424, 434 (citation omitted) (emphasis in 
original). This type of analysis requires a recognition "that in

2The remainder of Plaintiffs' time appears to have been spent 
on an administrative proceeding, speaking with the press, 
traveling, opposing a motion to intervene (approximately 40 hours), 
preparing the application for attorneys' fees (approximately 70 
hours), speaking and meeting with persons other than clients or co 
counsel, and on other miscellaneous tasks.

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the private sector the economically rational person engages in some 
cost benefit analysis." Norman 836 F.2d at 1301.

1. Excessive time.
For lawyers who hold themselves out to be experts in the 

field of civil rights litigation, 4,418.3 hours is clearly 
excessive for preparing and filing a complaint, obtaining class 
certification, participating in a related administrative 
proceeding,3 and negotiating a settlement.

When the time entries are analyzed by the nature of the 
activity, it is clear that Plaintiffs could have expended 
substantially fewer hours. Defendants' expert Eli H. Subin in his 
affidavit (Exhibit "A," pp. 10-11) asserts that a skilled attorney 
and a staff of one associate and one paralegal should have 
reasonably expended no more than 80 hours to draft a complaint, 100 
hours to negotiate the settlement and attend meetings of the City 
Council, 100 hours to draft the settlement papers, and 154 hours 
for miscellaneous tasks, for a total of 500 hours to accomplish all 
of Plaintiffs' tasks in this litigation. S^e also Affidavit of
Bonnie S. Satterfield (Exhibit "B," p. 10).

The relative ease and speed with which the settlement was 
achieved raises a question as to whether this case was even 
necessary and certainly contradicts the Plaintiffs' 
characterization of this dispute as a difficult and novel case 
which would warrant an enormous attorneys' fees and costs award. 
The lodestar can be reduced where it is found that the case was not

"Plaintiffs presumably request compensation for the 
administrative agency proceeding but do not show why the same 
should be compensable under 28 U.S.C. §1988.

17



novel and difficult. Winter v. Cerro Gordo— County., Conservation 
Board. 925 F.2d 1069, 1074 (8th Cir. 1991).

2. Redundant hours.
This case exemplifies the statement made by the Norman 

court that "[r]edundant hours generally occur where more than one 
attorney represents a client." 836 F.2d. at 1301-1302. Although 
the Eleventh Circuit Court also stated that " [t]here is nothing 
inherently unreasonable about a client having multiple attorneys, 
and they may all be compensated if they are not unreasonably doing 
the same work and are being compensated for the distinct 
contribution of each lawyer," Id^, it is clear that the time spent 
in this case was redundant. For example, Jon Dubin and Judith E. 
Koons spent approximately 160 hours drafting the Complaint, only to 
present it to Penda Hair and have her spend approximately 60 hours 
drafting the Complaint as well. (Deposition of Judy Koons pp.73- 
74; 143-144).

Additionally, there were numerous meetings with clients 
which were attended by both Judith E. Koons and Jon Dubin. In 
fact, Judith E. Koons spent approximately 379 hours investigating 
facts and meeting with the clients prior to filing the Complaint 
and Jon Dubin and Mary Wright spent approximately 187 and 172 
hours, respectively, on the same activity. Jean McCarroll is 
seeking recovery for 89.2 hours, of which a maximum of about 9.4 
hours was spent in an activity other than meeting and speaking with 
co—counsel and reviewing documents or court papers. Similarly, of 
John Boger's 40.0 hours, only 2.8 were spent in an activity other 
than reviewing documents or court papers or speaking with co­
counsel or staff members. Finally, all, of William Abbuel's 30.6

13



hours were spent in meetings and conferences or reviewing 
documents.

In short, Plaintiff's fee application reveals that 
counsel have not followed the guidelines suggested by §24.22 of the 
Manual for Comdex Litigation, Second f 1985.1, which urges restraint 
when many counsel are involved or otherwise the hours spent can be 
"absurd." In this case, Plaintiffs spent an "absurd" amount of 
time on many tasks, especially conferring among themselves for
approximately 985 hours.

3. Unnecessary hours.
The fee application is replete with unnecessary hours, 

from Penda Hair and Jon Dubin spending approximately 7.1 and 15.7 
hours, respectively, on press coverage, to Judith Koons attending 
a luncheon (3.6 hours on 5/10/88); to time spent by Jon Dubin and 
Penda Hair on tasks that should have been delegated to secretaries 
or legal assistants. See Affidavit of Bonnie S. Satterfield 
(Exhibit "B," p. 8).
V. PLAINTIFFS7 COSTS AND EXPENSES SHOULD BE DENIED OR REDUCED

This Court should exercise its discretion and deny 
Plaintiffs' application for costs and expenses. The dispute was 
settled favorably for both parties; the results of the Consent 
Decree do not justify the costs and expenses sought; and 
Plaintiffs' supporting documentation for the costs is inadequate. 
Moreover, Plaintiffs have not followed the proper procedure, in 
that they did not file itemized amounts sought in a. separate bill 
of costs, which is required by Fed. R. Civ. P. 54(d) and 28 U.S.C.
§1920, Desisto College. Inc, v. Town of_Howey-in-the-Hfljs, 718
F.S. 906, 911 (M.D. Fla 1989), aff'd, 914 F. 2d 267 ( 11th Cir.
1990), nor have Plaintiffs shown why the costs should be properly

19



taxed against the City of Cocoa. See Crawford—Fitting Co_.—y_i— — ; T . 
ci bbons. Inc. . 482 U.S. 437, 442 (1987). Finally, the Supreme
Court has recently ruled that the expert witness fees and other 
costs sought by Plaintiffs are not recoverable under 42 U.S.C.
§1988. West Virginia Hospitals. Tnc. v. Casev, 499 U.S. ----, 113
L.Ed.2d 68 (1991).

CONCLUSION
For the foregoing reasons, this Court should deny 

Plaintiffs' Application for Attorneys' Fees and Costs relegating 
all oarties to the settlement to bear their own expenses.

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

By: __Lawrence G. Mathews, Jr. 
Florida Bar No. 174813 
Frank M. Bedell 
Florida Bar No. 653942

255 S. Orange Ave., Suite 801 
Post Office Box 4976 
Orlando, Florida 32302-4976 
Telephone: 407/872-2200
Telecopier: 407/423-1038
Attorneys for Defendant,

20



c e r t i f i c a t e  o f  s e r v i c e

I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail this -- day of

P^Qv/ Qva/1/^_____ , 1991/ 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; and Jon C. 
Dubin, Esq., St. Mary's University Law School, One Camino Santa 
Maria, San Antonio, TX 78228-8602.

MATHEWS, SMITH & RAILEY, P.A.

By: Lawrence G. Mathews, Jr. 
Florida Bar No. 174813 
Frank M. Bedell Florida Bar No. 653942

255 S. Orange Ave., Suite 801 
Post Office Box 4976 
Orlando, Florida 32802-4976 
Telephone: 407/872-2200
Telecopier: 407/423-1033
Attorneys for Defendant,

c: \<*p51\SCOTTS\F««.Opp 
11/22/91:owp