Prison Legal News v. Inch

411 F.Supp.3d 1198

PRISON LEGAL NEWS, Plaintiff,

v.Mark S. INCH, in his official capacity as Secretary of the Florida Department of Corrections, Defendant.

CASE NO. 4:12cv239-MW/CAS

United States District Court, N.D. Florida, Tallahassee Division.

Signed October 22, 2019

Dante Pasquale Trevisani, Randall Challen Berg, Florida Justice Institute Inc., Miami, FL, Benjamin James Stevenson, ACLU Foundation of Florida Inc., Pensacola, FL, Masimba M. Mutamba, Sabarish P. Neelakanta, Human Rights Defense Center, Lake Worth, FL, Nancy Gbana Abudu, Southern Poverty Law Center, Decatur, GA, for Plaintiff.

Kristen Jennifer Lonergan, Marcus Owen Graper, Office of the Attorney General, Tallahassee, FL, for Defendant.

ORDER ON PLAINTIFF'S MOTION TO DETERMINE THE AMOUNT OF ATTORNEYS' FEES AND EXPENSES

Mark E. Walker, Chief United States District Judge

This Court previously determined Plaintiff is entitled to fees under 42 U.S.C. § 1988 as the prevailing party in this case. ECF No. 322. Plaintiff now moves for a determination of the amount of attorneys' fees and expenses to which it is entitled. ECF No. 329. Plaintiff seeks a total award of $1,244,753.41 in fees and $33,623.57 in expenses. ECF No. 356 at 26.¹ This Court has considered, without hearing, Plaintiff's motion, ECF No. 329, Defendant's response, ECF No. 338, and Plaintiff's reply, ECF No. 356, as well as all related exhibits. For the reasons set out below, it is ORDERED that Plaintiff's motion, ECF No. 329, is GRANTED IN PART and Plaintiff is awarded $1,148,210.89 in attorneys' fees and $33,448.57 in expenses.

I

Plaintiff initiated this lawsuit on November 17, 2011 in the Southern District of Florida. ECF No. 1. Plaintiff alleged the Florida Department of Corrections ("FDC") censored its publication, Prison Legal News , because the magazine contained advertisements for certain services. Plaintiff also alleged that FDC failed to notify Plaintiff of each impoundment of the magazine. Plaintiff asserted a First Amendment claim based on the censorship and a Due Process claim for the failure to provide notice or an opportunity to appeal the censorship decision. Plaintiff subsequently filed an amended complaint. ECF No. 14.

Defendant moved to transfer venue to the Northern District of Florida, Tallahassee Division pursuant to 28 U.S.C. § 1404(a). ECF No. 18. When that motion was granted, the case was then mistakenly assigned to the Pensacola Division. See ECF No. 57 at 3. The case was then transferred to the Tallahassee Division. ECF No. 57.

The parties zealously litigated this case at every stage before this Court, culminating in a four-day bench trial in January 2015. ECF Nos. 235–37. After post-trial briefing, this Court issued an order on Plaintiff's claims in August 2015, ECF No. 251, followed by an amended order on October 5, 2015. ECF No. 279. This Court ruled against Plaintiff on its First Amendment Claim but ruled in Plaintiff's favor on the Due Process claim. Id.

Defendant appealed this Court's judgment that Defendant violated Plaintiff's Due Process rights and Plaintiff cross-appealed this Court's judgment that Defendant did not violate Plaintiff's First Amendment rights. The Eleventh Circuit affirmed in all respects. Prison Legal News v. Sec'y, Fla. Dep't of Corr. , 890 F.3d 954 (11th Cir. 2018). The Supreme Court denied review. ECF No. 314.

Plaintiff moved for attorneys' fees under 42 U.S.C. § 1988 and costs under Federal Rule of Civil Procedure 54(d)(1). ECF No. 310. This Court determined that Plaintiff is a prevailing party within the meaning of Section 1988 because Plaintiff succeeded on its Due Process claim and was therefore entitled to fees under Section 1988 and costs under Rule 54(d)(1). ECF No. 322. The parties were ordered to brief the issue of the amount of fees this Court should award. ECF No. 322.²

II

This Court will first address the appropriate amount of attorneys' fees to be awarded to Plaintiff. The Eleventh Circuit has adopted the lodestar method to determine the reasonableness of an award of attorneys' fees. Norman v. Hous. Auth. of City of Montgomery , 836 F.2d 1292, 1299 (11th Cir. 1988). To determine a lodestar amount, a court must ascertain a reasonable hourly rate and multiply it by the number of hours an attorney reasonably expended on the litigation. Id. Where the time or fees claimed seem excessive, or there is a lack of support for the fees claimed, "the court may make the award on its own experience." Id. at 1303. The burden of establishing that the fee request is reasonable rests with the fee applicant, who must "submit evidence regarding the number of hours expended and the hourly rate claimed." U.S. ex rel. Educ. Career Dev., Inc. v. Cent. Fla. Reg'l Workforce Dev. Bd., Inc. , No. 6:04-CV-93, 2007 WL 1601747, at *3 (M.D. Fla. June 1, 2007). Evidence in support of the fee applicant's request requires "sufficient particularity so that the district court can assess the time claimed for each activity." Norman , 836 F.2d at 1303.

This Court begins with an analysis of the hourly rate sought by Plaintiff's attorneys. This Court then considered whether Plaintiff's submissions demonstrate that the number of hours claimed are reasonable. Finally, this Court considers whether the results in the case warrant adjustment of the lodestar figure.

A. Reasonable Hourly Rates

A "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Maner v. Linkan LLC , 602 F. App'x 489, 493 (11th Cir. 2015) (unpublished) (quoting Norman v. Hous. Auth. of City of Montgomery , 836 F.2d 1292, 1299 (11th Cir. 1988) ). "The party seeking attorney's fees bears the burden of establishing that the requested hourly rate is in line with prevailing market rates." Id. In establishing a reasonable hourly rate, the court may "rely on its own expertise and where appropriate" and may also consider certain case-specific factors.³ Id.

The parties disagree over which legal market—Tallahassee or Miami—is the relevant legal market for purposes of this analysis.

Plaintiff argues that it should be compensated for the market rate associated with Miami because that is where the case was originally filed, and venue was transferred for the convenience of the parties and witnesses (not because venue was improper). Defendant argues that Tallahassee is the appropriate market because venue was transferred to the Northern District and Plaintiff could have hired competent local attorneys.

"The general rule is that the ‘relevant market’ for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed.’ " ACLU of Ga. v. Barnes , 168 F.3d 423, 437 (11th Cir. 1999) (quoting Cullens v. Ga. Dep't of Transp. , 29 F.3d 1489, 1494 (11th Cir. 1994) ). In Cullens , the case was transferred from Macon, Georgia, to Atlanta. Cullens , 29 F.3d at 1494. The plaintiffs prevailed on certain claims and sought an award of attorneys' fees. Id. at 1490. The plaintiffs contended the district court erred in using Macon (rather than Atlanta) as the relevant market for the hourly rate to be used in computation of the lodestar figure. Id. at 1494. The Eleventh Circuit held that the proper attorneys' fees market was Macon—where the case was initially filed—and not Atlanta. Id.

In Tiara Condo. Ass'n, Inc. v. Marsh USA, Inc. , 697 F. Supp. 2d 1349 (S.D. Fla. 2010), the case was filed in the Southern District of New York but was transferred to the Southern District of Florida five months later upon the parties' stipulation. Tiara Condo. Ass'n, Inc. , 697 F. Supp. 2d at 1356 n.2, 1362 (adopting Magistrate's Report and Recommendation). The defendant made an offer of judgment, which the plaintiff rejected. Id. at 1352. The court subsequently granted the defendant's motion to dismiss, and the defendant sought attorneys' fees. Id. The magistrate judge recommended an award of attorneys' fees based upon New York market rates, and the defendant objected. Id. at 1353. The district court, citing ACLU of Ga. , agreed with the magistrate judge's finding and held that New York rates properly applied because the case was originally filed in New York. Id.

This Court concludes Miami is the relevant legal market for purposes of determining the reasonable hourly rate for Plaintiff's attorneys. The caselaw distinguishes between cases where, as here, the case is transferred for the convenience of the parties and witnesses under § 1404(a), and cases where the case is transferred because of improper venue pursuant to § 1406(a). See Polk v. New York State Dep't of Corr. Servs. , 722 F.2d 23, 25 (2d Cir. 1983). Where the case is transferred pursuant to § 1404(a), counsel is entitled to fees at the rate prevailing in his home district, "at least in the absence of any indication that the suit was filed in the high-rate district with little prospect of litigation there but in the hope of securing a high fee." Id. In contrast, if a suit is transferred because of improper venue, the rates prevailing in the forum district should normally apply to avoid attorneys having "an incentive to file in a high-rate district in the hope of obtaining a high fee, even though the case must be litigated elsewhere." Id. ; accord Strickland v. Truckers Express, Inc. , No. CV 95-62-M-JCL, 2007 WL 496368, at *7–8 (D. Mont. Feb. 12, 2007) (applying market rate in Birmingham, Alabama after case was transferred to Montana on the basis of § 1404(a) because "under those circumstances [transfer based on forum non conveniens ] the Plaintiffs should not be penalized by a reduction" to their counsel's rates). Because this case was transferred for the parties' and witnesses' convenience, see ECF No. 46, this Court will utilize the prevailing market rate in Miami in determining the reasonable market rate for Plaintiff's attorneys.

Plaintiff seeks the following hourly rates for its attorneys, law clerks, and...