Otto v. City of Boca Raton, Fla.

REPORT AND RECOMMENDATION ON MOTION FOR ATTORNEY'S FEES AND NON-TAXABLE EXPENSES AND COSTS [ECF No. 221]

BRUCE E. REINHART, UNITED STATES MAGISTRATE JUDGE

Plaintiffs Dr. Robert Otto and Dr. Julie Hamilton move for prevailing party costs, including reasonable attorneys' fees and non-taxable expenses, as authorized by 42 U.S.C. §1988.^[1] They request $2,225,018 in fees and $12,864.30 in expenses and costs. ECF No. 221. Defendants Palm Beach County (“County”) and City of Boca Raton (“City”) do not oppose Plaintiffs' entitlement to prevailing party costs. Both dispute the amount of compensable costs. The City also argues that any award should be allocated pro rata between the Defendants.

The County suggests the Court award fees in the range of $705,000 to $710,000 and expenses of $3,362.51. ECF No. 228. The City suggests an award of $497,275 in fees, with 3/7 ($213,132.07) allocated to the City and the balance allocated to the County. ECF No. 229. The City argues that the requested expenses should either be denied in full or should be allocated pro rata between the Defendants, with the City being taxed for 3/7 of the compensable expenses. Id.

For the following reasons, it is recommended that Plaintiffs be awarded $736,887.45 in costs under §1988 consisting of $736,227.53 in attorneys' fees and $659.92 in non-taxable expenses. Those costs should be shared equally by the Defendants.

PROCEDURAL HISTORY

Plaintiffs brought this lawsuit to challenge the legality of ordinances enacted by the Defendants that prohibited sexual orientation change efforts (“SOCE”). In their Complaint and First Amended Complaint, they asserted federal claims under 42 U.S.C. §1983 and state law claims. ECF Nos. 1 ¶18; 182 ¶21. The District Court denied a preliminary injunction but stayed the proceedings while Plaintiffs took an interlocutory appeal. The Eleventh Circuit panel reversed and remanded with instructions to enter a preliminary injunction. 981 F.3d 854 (11th Cir. 2020). Rehearing en banc was denied. 41 F.4th 1271 (11th Cir. 2022). The mandate issued on July 29, 2022, and the stay was lifted. ECF Nos. 149, 168. After six months more litigation, the Defendants made Offers of Judgment pursuant to Federal Rule of Civil

Procedure 68(a), which both Plaintiffs accepted. ECF Nos. 196, 203 (collectively “the Offers”).

On April 6, 2023, after the Plaintiffs filed Notices accepting the Offers, a Final Judgment was entered. ECF No. 211. Plaintiffs timely moved for prevailing party costs. ECF No. 221.^[2]

LEGAL PRINCIPLES

I. 42 U.S.C. §1988

Title 42, United States Code, Section 1988 is an exception to the general rule in American litigation that each party bears its own attorney's fees. See Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975)). As relevant here, it says:

In any action or proceeding to enforce a provision of section[] 1983 of this title, the court, in its discretion may allow the prevailing party, other than the United States a reasonable attorney's fee as part of the costs.

42 U.S.C. §1988(b). Appellate attorneys' fees are recoverable under Section 1988. Young v. New Process Steel, LP, 419 F.3d 1201, 1204 (11th Cir. 2005).

The party seeking fees bears the burden of proving entitlement and amount. Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). “The proper approach in applying a federal fee-shifting statute like § 1988 is to take a reasonable number of hours and multiply it by a reasonable fee and thereby create

a ‘lodestar.'” Johnston v. Borders, 36 F.4th 1254, 1282 (11th Cir. 2022) (citations omitted). In evaluating the lodestar, the trial court must consider the so-called Johnson factors:

(1) the time and labor required, (2) the novelty, complexity, and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly; (4) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (5) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; (6) whether the fee is fixed or contingent (7) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (8) the amount involved and the results obtained, (9) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).

The United States Supreme Court recognizes that trial courts have substantial discretion and flexibility in awarding Section 1988 fees:

We emphasize, as we have before, that the determination of fees “should not result in a second major litigation.” Hensley [v. Eckerhart], 461 U.S. [424] at 437, 103 S.Ct. 1933 [(1983)]. The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet “the burden of establishing entitlement to an award.” Ibid. But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.

Fox v. Vice, 563 U.S. 826, 838 (2011).

A. Reasonable Hourly Rate

The reasonable hourly rate is defined as the “prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable

skills, experience, and reputation.” Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). “Generally, the ‘relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed . . .'” Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2013 WL 6238647, at *12 (S.D. Fla. Dec. 3, 2013) (J. Goodman) (quoting Barnes, 168 F.3d at 427). The fee applicant bears the burden of justifying the claimed market rate. See Barnes, 168 F.3d at 427.

The Court must consider “what a reasonable, paying client would be willing to pay,” bearing in mind “all of the case-specific variables that . . . courts have identified as relevant to the reasonableness of attorney's fees,” including the Johnson factors. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 184, 190 (2d Cir. 2008) (court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively”) (emphasis in original). In addition, the Court may consider prior hourly rates awarded to other attorneys of similar experience in the community and also the Court's own knowledge of the rates charged by local practitioners. See McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96-97 (2d Cir. 2006) (“A district court may also use its knowledge of the relevant market when determining the reasonable hourly rate.”). See also Norman, 836 F.2d at 1303 (“[t]he court . . . is itself an expert on the question [of fees] and may consider its own knowledge and experience concerning reasonable and proper fees . . .”).

B. Hours Reasonably Expended

The fee applicant must adequately document the hours reasonably expended on the litigation. Barnes, 168 F.3d at 427. “[C]ounsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Id. (citations and quotations omitted). For example, counsel cannot rely on block billing. “‘[B]lock billing' . . . is the disfavored practice of including multiple distinct tasks within the same time entry without specifying the amount of time spent on each task.” TYR Tactical, LLC v. Productive Prod. Enter., LLC, No. 15-CIV-61741, 2018 WL 3110799, at *11 (S.D. Fla. Apr. 11, 2018) (J. Valle) (finding a fee reduction appropriate where counsel's practice of block billing made it “impossible” for the court to ascertain how much time was spent on each task).

In submitting a request for attorney's fees, fee applicants are required to exercise “billing judgment.” Barnes, 168 F.3d at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). If fee applicants do not exercise billing judgment by excluding “excessive, redundant, or otherwise unnecessary” hours, which are 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,” the court must exercise billing judgment for them. See Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301 (emphasis in original)).

II. Lodestar Multiplier

“There is a ‘strong presumption' that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). Superior attorney performance can justify an upward adjustment of the lodestar in “rare”...