BEACH BLITZ CO., d.b.a. Ocean 9 Liquor, d.b.a. Ocean 11 Market, Plaintiff - Appellant Cross Appellee, versus CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, PHILIP LEVINE, an individual, JIMMY L. MORALES, an individual, MICKEY STEINBERG, an individual, RICKY ARRIOLA, an individual, MICHAEL GREICO, an individual, JOY MALAKOFF, an individual, KRISTEN ROSEN GONZALEZ, an individual, JOHN ELIZABETH ALEMAN, an individual, RAUL J. AGUILA, an individual, ALEKSANDR BOKSNER, an individual, Defendants - Appellees Cross Appellants.
No. 19-11380; 19-11397
United States Court of Appeals for the Eleventh Circuit
September 21, 2021
D.C. Docket No. 1:17-cv-23958-UU; [PUBLISH]
Appeals from the United States District Court for the Southern District of Florida
(September 21, 2021)
Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.
This appeal concerns a dispute about attorney‘s fees, specifically, who was the prevailing party, and whether the claims were frivolous. On October 30, 2017, Beach Blitz Co. d/b/a Ocean 9 Liquor and d/b/a Ocean 9 Market (“Beach Blitz“) sued the City of Miami Beach (“the City“) and ten individual defendants (the “Individual Defendants“) asserting three procedural due process claims, a substantive due process claim, and a First Amendment retaliation claim. Beach Blitz alleged that the City‘s enactment and enforcement of ordinances regulating the sale of liquor and requiring businesses selling liquor to obtain licenses violated its substantive and procedural due process rights. It further alleged that the City‘s closure of its store one day after it met with a City attorney constituted retaliation for Beach Blitz‘s protected First Amendment conduct. The City sought to
The district court found the City to be the prevailing party on all five claims, determined that each of them were “frivolous, unreasonable, or without foundation,” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978), and awarded fees for each. We agree with the district court‘s prevailing party determination because the City rebuffed Beach Blitz‘s efforts to effect a material alteration in the legal relationship between the parties. We also agree with the district court‘s frivolity determination concerning the procedural and substantive due process claims. We think, however, that Beach Blitz‘s First Amendment retaliation claim was not frivolous. We, therefore, affirm in part, vacate in part, and remand this case to the district court to recalculate the attorney‘s fees to which the City is entitled on the procedural and substantive due process claims.
I.
The essential facts necessary to understanding the instant appeal are these:
A. The Ordinances.
In 2016, a City Commission passed several ordinances regulating the sale of liquor in the mixed entertainment use area of South Beach (the “MXE District“)1 after determining that the sales were having a negative effect on the health, safety, and welfare of the City‘s residents and visitors. Some of the ordinances limited the times during which liquor could be sold by package liquor stores in the MXE district to between 10 a.m. and 10 p.m. The Commission also considered an ordinance that would prohibit sales after 8 p.m. In addition, the City adopted an ordinance prohibiting package liquor stores and package sales of alcoholic beverages by any retail store or alcoholic beverage establishment within the MXE District. This ordinance did not affect the operation of existing package stores in the MXE district. The Commission Memorandum supporting the ordinance explained that “[p]ackage sales of alcoholic beverages may encourage patrons to walk around with alcoholic beverages and consume alcoholic beverages in the City‘s parks, and on the City‘s streets and sidewalks.” The Memorandum further noted that “[t]he consumption of open containers of alcoholic beverages in public places may cause undesirable noise, as well as contribute to litter and noxious odors.”
B. BTR License and Beach Blitz.
The City Code requires every business operating in the City to pay a business tax, for which it receives a Business Tax Receipt (“BTR license” or “BTR“), “for the privilege of engaging in or managing any business, profession, or occupation within the city.” Code of the City of Miami Beach, Florida §§ 102-356, 102-357 (the “City Code“). Each BTR is valid for one year -- the City issues on October 1 each year and
Beach Blitz owned and operated Ocean 9 Liquor, a package liquor store in the MXE District. Beach Blitz applied for and renewed its BTR license for the 2015–16 fiscal year. The BTR license expired on September 30, 2016, and Beach Blitz did not timely renew it.
Between December 2016 and June 2017, Beach Blitz received three citations related to its Ocean 9 store. The first citation, issued on December 21, 2016, cited Beach Blitz for selling liquor before 10:00 a.m. and imposed a $1,000 fine. It provided Beach Blitz 20 days to appeal the citation to a Special Master. The latter two citations were both issued on June 25, 2017. The first was for selling liquor after 10:00 p.m. and imposed a $1,000 fine. The second was a Notice of Violation of Section 102-377 for “failure to obtain a Business Tax Receipt,” which also imposed a $1,000 fine. The Notice expressly directed Beach Blitz to “[c]ease immediately until you obtain a Business Tax Receipt from the City of Miami Beach.” Both citations provided Beach Blitz with 10 days to appeal to a Special Master. Beach Blitz did not appeal any of the citations within the time frames provided. As a result, the citations were considered obligations due and owed to the City as of the date the time to appeal expired.
On August 28, 2017, Beach Blitz reached an agreement with the City Attorney‘s Office to resolve all three citations for $1,000. The settlement did not include the payment owed for a BTR license. On September 28, 2017,2 the Special Master entered an agreed order in which Beach Blitz admitted to the violations and agreed to pay $1,000 to resolve all three citations. On or about October 4, 2017, Beach Blitz paid the $1,000 fine pursuant to the consent agreement. But Beach Blitz did not submit payment for a BTR license on that date, nor did it submit payment to the City to renew its BTR license at any point during the 2016–2017 fiscal year (from October 1, 2016 to September 30, 2017).
On October 5, 2017, Beach Blitz‘s counsel met with City representatives and the deputy city attorney. During this meeting, Beach Blitz‘s lawyer stated that he believed the ordinances enacted were “arbitrary, capricious, unreasonable and designed to force the package stores out of business in the MXE district.”
On October 6, 2017, the City issued another citation to Beach Blitz for continuing to operate without a BTR license. The citation directed Beach Blitz to “[c]ease [operating] immediately until you obtain a Business Tax Receipt from the City of Miami Beach.” Beach Blitz alleged that following the closure, the deputy city attorney advised its counsel that the City‘s actions “were not likely coincidental and a long time coming.” On October 11, 2017, Beach Blitz submitted payment to the City to renew its BTR license. Because Beach Blitz had not renewed its license in the fiscal year after its expiration, its license had been placed in “closed” status. Beach Blitz, therefore, needed to submit a new BTR license application pursuant to § 102-371 of the City Code in order for the City to act on a request for the BTR license.
C. Prior Proceedings.
On October 30, 2017, Beach Blitz filed the instant action in the Southern District
Shortly after filing its complaint, Beach Blitz filed an emergency motion for preliminary injunctive relief challenging the City‘s October 6, 2017 closure of its liquor store. The district court denied the motion, concluding that Beach Blitz was not likely to succeed on any of its
The City then moved to dismiss the complaint pursuant to
On February 5, 2018, the district court dismissed Counts I, II, III, and V of the complaint without prejudice and without leave to amend. The court found that the individual defendants were entitled to absolute immunity; that Beach Blitz failed to state a procedural due process claim since it did not allege that it attempted to avail itself of any state remedies; and that Beach Blitz failed to state a substantive due process claim because it had not alleged facts sufficient to show that any substantive liberty or property interest had been infringed upon by the City‘s actions. As for Count IV, Beach Blitz‘s First Amendment retaliation claim, the court held that the complaint failed to establish a causal connection between Beach Blitz‘s protected speech and any action taken by the defendants. Finding that amendment might not be futile, however, the court dismissed Count IV without prejudice and with leave to amend, permitting Beach Blitz to file an amended Count IV containing “sufficient factual allegations to establish Plaintiff‘s speech during the meeting was the ‘motivating factor behind’ the Code Enforcement Officer‘s October 6, 2017 issuance of the Second BTR Violation and closure of Ocean 9.” But Beach Blitz did not file an amended complaint concerning
On April 6, 2018, the defendants moved to recover attorney‘s fees pursuant to
The defendants sought to recover a total of $290,453.60 in attorney‘s fees. After thorough review and a detailed explanation of its reasoning, the magistrate judge determined that the defendants should be awarded $132,785.85 in attorney‘s fees. The district court adopted the magistrate judge‘s Report & Recommendation, concluding that the magistrate judge properly: “(1) reviewed the categories of fees stage-by-stage of the litigation . . . (2) determined whether the fees incurred were excessive for that stage; and (3) where he answered that question in the affirmative, applied a percentage reduction.” The court also concluded that the magistrate judge “was reasonably specific, under the circumstances, as to why each particular percentage reduction was appropriate for each category of work.” The court issued a final judgment awarding attorney‘s fees in the amount of $132,785.85 in favor of the City.
Beach Blitz timely appealed the district court‘s prevailing party determination, and the City cross-appealed, asserting that the district court abused its discretion by reducing the fee award.
II.
We turn first to the district court‘s conclusion that the City was entitled to attorney‘s fees. “It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney‘s fees.” Christiansburg, 434 U.S. at 415. “But Congress has authorized courts to deviate from this background rule in certain types of cases by shifting fees from one party to another.” Fox v. Vice, 563 U.S. 826, 832 (2011).
Because Congress intended for prevailing defendants to recover fees only
We review the factual findings underlying the district court‘s prevailing party determination for clear error. See Church of Scientology Flag Serv., Org., Inc. v. City of Clearwater, 2 F.3d 1509, 1512–13 (11th Cir. 1993). “Whether the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal question reviewed de novo.” Id. at 1513.
We review the “determination that a plaintiff‘s case was so frivolous, unreasonable, or groundless, as to justify an award of fees under”
A.
Our first question is whether the City was the prevailing party. In CRST Van Expedited, Inc. v. E.E.O.C., the Supreme Court emphasized a “[c]ommon sense” approach to the prevailing party determination, and observed that since plaintiffs and defendants seek different outcomes in court, the prevailing party determination is different for each party:
Plaintiffs and defendants come to court with different objectives. A plaintiff seeks a material alteration in the legal relationship between the parties. A defendant seeks to prevent this alteration to the extent it is in the plaintiff‘s favor. The defendant, of course, might prefer a judgment vindicating its position regarding the substantive merits of the plaintiff‘s allegations. The defendant has, however, fulfilled its primary objective whenever the plaintiff‘s challenge is rebuffed, irrespective of the precise reason for the court‘s decision. The defendant may prevail even if the court‘s final judgment rejects the plaintiff‘s claim for a nonmerits reason.
136 S. Ct. at 1651. CRST highlighted “the asymmetry in the parties’ litigation objectives, which affects the showing that each party must make to achieve prevailing-party status” and held that a defendant “prevails ‘whenever the plaintiff‘s challenge is rebuffed, irrespective of the precise reason for the court‘s decision.‘” Robinson v. O‘Rourke, 891 F.3d 976, 982 (Fed. Cir. 2018) (quoting CRST, 136 S. Ct. at 1651); see also B.E. Tech., L.L.C. v. Facebook, Inc., 940 F.3d 675, 679 (Fed. Cir. 2019), cert denied, 141 S. Ct. 618 (2020) (“Facebook obtained the outcome it sought via the mootness dismissal; it rebuffed B.E.‘s attempt to alter the parties’ legal relationship in an infringement suit . . . . CRST explains that a defendant, like Facebook, can prevail by ‘rebuffing’ plaintiff‘s claim, irrespective of the reason for the court‘s decision.“). Of course, in order to confer prevailing party status, the rejection of the plaintiff‘s attempt to alter the parties’ legal relationship “must be marked by ‘judicial imprimatur.‘” CRST, 136 S. Ct. at 1646 (citation omitted).
Accordingly, to determine whether the City was the prevailing party in this case, we ask whether the district court‘s judgment rebuffed Beach Blitz‘s efforts to effect a material alteration in the legal relationship between the parties. See B.E. Tech., L.L.C., 940 F.3d at 679 (“[I]n identifying a prevailing party, we must consider whether the district court‘s decision ‘effects or rebuffs a plaintiff‘s attempt to effect a material alteration in the legal relationship between the parties.‘“) (citation and quotation marks omitted). Put another way, we conduct a practical examination of whether “the case [was] resolved in the defendant‘s favor.” See CRST, 136 S. Ct. at 1652.
The district court‘s order rebuffed Beach Blitz‘s attempt to alter its legal relationship with the defendants, thereby resolving the litigation in the defendants’ favor. The district court dismissed Counts I, II, III, IV, and V for failure to state a claim. It also denied Beach Blitz the opportunity to amend Counts I, II, III, and V since amendment would be futile. The court initially offered Beach Blitz the opportunity to amend Count IV, but Beach Blitz failed to do so, and the court dismissed Count IV and closed the case, denying Beach Blitz all further opportunity to amend its pleadings.
To state the obvious, this dismissal was involuntary. The district court acted in response to the defendants’ motion to dismiss, a motion Beach Blitz opposed. Beach Blitz wanted the court to find that, at all times, Beach Blitz was in compliance with the City‘s laws and ordinances -- including the requirement to obtain a BTR license. It sought a judgment finding that rules restricting the period in which alcohol may be sold were unduly vague, unconstitutional, and discriminatory, and that the City‘s shutdown of Beach Blitz‘s Ocean 9 store constituted an unconstitutional taking and a retaliatory response to its protected First Amendment conduct. But the district court refused to issue such a judgment and dismissed Beach Blitz‘s claims; it then denied leave to amend. Thus, we have little difficulty concluding that Beach Blitz‘s attempt to alter its legal relationship with the City was “rebuffed,” CRST, 136 S. Ct. at 1651, and that the district court‘s dismissal placed the requisite judicial imprimatur on the parties’ legal relationship. Cf. United States v. $70,670.00 in U.S. Currency, 929 F.3d 1293, 1303 (11th Cir. 2019), cert. denied sub nom. Salgado v. United States, 140 S. Ct. 2640 (2020) (holding that a dismissal as a result of a motion for voluntary dismissal “places no judicial imprimatur on the legal relationship of the parties, which is the touchstone of the prevailing party inquiry” (quotation marks omitted)).
Still another indicator that Beach Blitz‘s attempt to alter its legal relationship with the City was rebuffed is the fact that the
Contrast, for example, the $70,670.00 in U.S. Currency order permitting the government to voluntarily dismiss its forfeiture complaint. There the court had not issued “a ‘final judgment rejecting the government‘s claim’ to the defendant funds.” 929 F.3d at 1303 (citing CRST, 136 S. Ct. at 1651) (alterations adopted). Not so for the order in this case. The defendants here did obtain a final judgment rejecting each of Beach Blitz‘s
The only problem in this otherwise simple case arises from the district court‘s confusing handling of its judgment. On one hand, it granted a Rule 12(b)(6) motion to dismiss for failure to state a
But we need not decide today whether the judgment dismissing this case is claim preclusive, because even setting aside the issue of preclusive effect, we have plenty of reasons to conclude that Beach Blitz was rebuffed. The judgment was involuntary and carried judicial imprimatur, denied leave to amend, and resulted from a Rule 12(b)(6) merits determination. As a matter of “[c]ommon sense,” it plainly rebuffed Beach Blitz‘s attempt to alter its legal relationship with the City and “resolved [the case] in the defendant‘s favor.” See CRST, 136 S. Ct. at 1651–52; cf. B.E. Tech., L.L.C., 940 F.3d at 679 (rejecting the plaintiff‘s argument that a mootness dismissal could not confer prevailing party status because the dismissal lacked preclusive effect and noting that this argument “put[] form over substance and conflict[ed] with the common-sense approach outlined in CRST“). A “without prejudice” label, without more, cannot alter our conclusion in this case: in every practical sense, the district court rebuffed Beach Blitz‘s effort to alter its legal relationship with the City. We, therefore, leave to a future court the difficult task, should the need arise, of reconciling the contradictory features of the district court‘s judgment in order to determine whether it has preclusive effect. We do, however, caution district courts to make sure that the wording of each judgment matches its content and procedural posture in order to avoid similar confusion in other cases.
Finally, a brief word on our colleague‘s conclusion that CRST set forth a bright-line rule that a defendant prevails “whenever it secures an involuntary dismissal” of any kind. Concurring Op. at 37. We are not so sure, but we need not decide this matter today. Nothing in the Supreme Court‘s opinion goes that far. CRST held that a favorable ruling on the merits is not necessary for prevailing party status and remanded for further consideration of whether the judgment at issue in that case -- a dismissal of EEOC claims for failure to conduct statute-
mandated pre-suit investigations and conciliations, the preclusive effect of which was disputed -- rendered the defendant a prevailing party. 136 S. Ct. at 1651, 1653–54. Indeed, CRST expressly “decline[d] to decide” whether “a defendant must obtain a preclusive judgment in order to prevail.” Id. at 1653. It would be odd indeed for the Supreme Court to have reserved that issue if it had
We need not lay down so broad a rule ourselves in order to resolve this case. As we have explained, the involuntary
Even if we assume these cases were correctly decided -- and we take no position of our own on these matters -- it remains an open question whether
B.
We turn then to the second question -- the propriety of the district court‘s determination that each of Beach Blitz‘s claims was “frivolous, unreasonable, or without foundation.” This Court has
In Sullivan, a panel of this Court identified several factors relevant to the determination of frivolity: “(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or had a full-blown trial on the merits.” 773 F.2d at 1189. “The Sullivan factors . . . are ‘general guidelines only, not hard and fast rules.‘” Cordoba, 419 F.3d at 1177 (quoting Sullivan, 773 F.2d at 1189).
In addition to the three Sullivan factors, this Court has recognized a fourth consideration: whether there was enough support for the claim to warrant close attention by the court. “Our circuit has held that the plaintiff‘s section 1983 claims should not be considered groundless or without foundation for the purpose of an award of fees in favor of the defendants when the claims are meritorious enough to receive careful attention and review.” Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991). This fourth concern is a particularly important one. Indeed, when the plaintiff‘s claim warranted close attention, we have held that a district court abused its discretion in awarding fees, even when the other guideposts pointed toward finding the claim frivolous. See Cordoba, 419 F.3d at 1181–82.
1.
For starters, we address the district court‘s frivolity determination with respect to the procedural due process claims (Counts I, II, and V). Count I of the complaint sought declaratory and injunctive relief and asserted that the City‘s actions in failing to comply with § 102-377(b) -- which sets forth the process for enforcement of the City Code‘s BTR provisions -- and in closing Beach Blitz‘s Ocean 9 store were unconstitutional and inconsistent with due process. Count II sought declaratory and injunctive relief and damages based upon the City‘s alleged unlawful targeting of package stores, clubs, and restaurants in the MXE district, and specifically, the City‘s alleged targeting of Beach Blitz‘s Ocean 9 store. Count V sought declaratory and injunctive relief based on vagueness grounds allegedly inherent in § 102-377 of the City Code.
The first Sullivan factor -- whether the plaintiff has established a prima facie case -- weighs in favor of finding frivolity because Beach Blitz‘s procedural due process claims were dismissed on the merits and without leave to amend. Beach Blitz had failed to allege a constitutionally inadequate process. The district court observed that “the Complaint [did] not contain a single allegation that the state failed to provide Plaintiff with adequate process.” Further, as for Count II, the court found
The remaining Sullivan factors similarly weigh in favor of finding frivolity: the City never offered to settle the procedural due process claims, and the complaint was dismissed at the pleading stage. The fourth consideration -- whether the claims were sufficiently meritorious to receive careful attention and review -- also weighs in favor of finding frivolity. The district court was not required to grapple with a novel area of law, nor was there any case law supporting the claims. Cf. Cordoba, 419 F.3d at 1181–82 (finding the district court‘s award of fees was an abuse of discretion where the plaintiff‘s claims “though weak, were not entirely ‘without foundation‘” (citation omitted)); Busby, 931 F.2d at 787 (“The fact that one judge on this panel disagrees over the disposition of the directed verdict against Walsh demonstrates that this Court had to consider Busby‘s claims against him very carefully.“). Quite to the contrary, Beach Blitz‘s procedural due process claims were dismissed based on long-established precedent.
We affirm the district court‘s finding of frivolity with respect to Counts I, II, and V.
2.
We reach the same result on the substantive due process claim (Count III). As for this count, Beach Blitz asserted that it had a substantive due process right in “retaining” its BTR license, in conducting its business through the sale of alcohol, and in receiving income from such sales. The district court held that Beach Blitz “failed to assert the violation of a substantive right to run its business and derive income from its operation,” and noted that to the extent Beach Blitz asserted arbitrary and irrational government action, by its “own admission, the Ordinance [was] rationally based on the City‘s desire to protect the health, safety, and welfare of the City‘s residents and visitors.” Beach Blitz cannot now reasonably claim that the complaint contained sufficient factual allegations to establish a prima facie case for a substantive due process violation. The first Sullivan factor plainly weighs in favor of a finding of frivolity.
Furthermore, the City never offered to settle Beach Blitz‘s substantive due process claim which was dismissed at the pleading stage -- the second and third Sullivan factors weigh in favor of a finding of frivolity. Lastly, we consider whether the substantive due process claim was sufficiently meritorious to receive careful attention and review. It was not. There was no support in the case law for this claim, which was dismissed based on long-established precedent in the Supreme Court and in this Circuit. See, e.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999) (holding there is no fundamental property right in “the activity of doing business, or the activity of making a profit“) (emphasis omitted); McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (noting that a property interest created by state law does not receive the protection of substantive due process).
Beach Blitz‘s substantive due process claim was frivolous.
3.
Finally, we address Beach Blitz‘s First Amendment retaliation claim (Count
For the same reasons we applied to Beach Blitz‘s procedural and substantive due process claims, the three Sullivan factors also weigh in favor of a finding of frivolity. As for the first one, the district court held that Beach Blitz failed to state a First Amendment retaliation claim, Beach Blitz did not appeal the dismissal, and it cannot now argue that the court erred in granting the motion to dismiss. As for the second one, the City did not offer to settle this claim, and as to the third factor, the claim was dismissed at the pleading stage.
The last consideration -- whether Count IV was sufficiently meritorious to receive careful attention and review -- is a different question. Cf. Cordoba, 419 F.3d at 1181–83 (holding that the district court‘s frivolity determination was an abuse of discretion even regarding claims that “were weak” and a theory that “was close” to being frivolous). There was sufficient support in our prior caselaw for Beach Blitz‘s position that its retaliation claim was not so groundless on causation as to be frivolous. See Bailey v. Wheeler, 843 F.3d 473 (11th Cir. 2016); Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989).
In Bailey, a city police officer was fired after he reported that officers in both the city police department and the county sheriff‘s department were engaged in racial profiling. 843 F.3d at 477. Bailey appealed his termination, arguing that it was the result of speaking out against racial profiling. Id. at 478–79. Two deputies with the county sheriff‘s department followed Bailey as he drove home the night after a hearing on his appeal, and the next day, Major Wheeler of the sheriff‘s department issued a countywide, be-on-the-lookout (“BOLO“) advisory with Bailey‘s picture, warning that Bailey was a “loose cannon” who “presented a danger to any law-enforcement officer.” Id. (alteration adopted) (quotation marks omitted). Bailey was reinstated a few weeks later, and upon his return to work, the police chief informed Bailey that he could contact the sheriff‘s office to have the BOLO cancelled. Id.
Bailey sued Wheeler claiming First Amendment retaliation. The district court denied Wheeler‘s motion to dismiss based on qualified immunity. Wheeler appealed, arguing that Bailey failed to sufficiently allege a wrongful retaliation since there was no basis for the inference that Wheeler
In Thomas, prison officials searched and ransacked the cell of a Georgia prisoner and confiscated the inmate‘s legal documents and reference materials. 880 F.2d at 1237. Just a few days earlier, the prisoner had been awarded monetary damages in a civil rights action against prison officials, and following the prison officials’ actions, the prisoner filed a second lawsuit claiming that his legal materials were confiscated in retaliation for bringing the first lawsuit. Id. at 1237–38. The district court dismissed the action as a
Similar to the plaintiffs in both Bailey and Thomas, Beach Blitz alleged a close temporal relation between its protected conduct and the challenged action -- here, just one day passed between Beach Blitz‘s speech and its store being shut down. Moreover, the deputy city attorney told Beach Blitz‘s counsel just a few days following their meeting that the closure of Ocean 9 was not a coincidence and was a long time coming. The chain of events with the deputy city attorney supports an inference that the deputy city attorney had been in contact with the officials issuing the closure order.
The district court abused its discretion in finding Count IV frivolous. See Cordoba, 419 F.3d at 1185 (holding that a claim “built . . . from language in our own opinions” was not frivolous). When viewed in light of our precedent, Beach Blitz‘s First Amendment retaliation claim was not wholly without foundation. It was not unreasonable for Beach Blitz to believe that the City shut down its store as a response to Beach Blitz‘s protected First Amendment conduct. The claim, while properly rejected by the district court, was not frivolous.
III.
In sum, we conclude that the district court did not err in finding the City to be the prevailing party for all of the claims, nor did it abuse its discretion in concluding that Counts I, II, III, and V were frivolous and, therefore, that the City was entitled to attorney‘s fees as to those counts. The district court did abuse its discretion, however, by finding Count IV frivolous and subsequently awarding attorney‘s fees for that claim too -- the City was not entitled to attorney‘s fees for a non-frivolous claim. Because the records themselves do not reveal the portion of the fees attributable solely to defending against Count IV, and because neither the district court nor the City teased out the legal fees incurred in
We recognize that the City has challenged the nature and extent of the district court‘s analysis relating to the amount of attorney‘s fees due and owing. Because, however, we must remand to the district court to determine the proper amount of fees, we make no judgment as to the district court‘s prior fee analysis. We simply note that in calculating fees, the district court must conduct either an hour-by-hour analysis or apply an across-the-board reduction of the requested compensable hours -- it would be error for the court to apply both methods. See Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
NEWSOM, Circuit Judge, concurring in part and concurring in the judgment:
As I understand the majority opinion, it uses a mix of reasons to explain why the City was a “prevailing party” eligible for an award of attorneys’ fees. First, the majority concludes that the City prevailed because it secured an involuntary dismissal. See Maj. Op. at 14–16. Based on the Supreme Court‘s decision in CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642 (2016), I agree that the district court‘s dismissal order itself—of its own force—rendered the City a prevailing party. Second, the majority points to what it calls “[s]till another indicator” of the City‘s prevailing-party status: “the fact that the district court‘s judgment dismissed Beach Blitz‘s claims
I
The majority and I agree about what happened here. Beach Blitz sued the City of Miami Beach under
Accordingly, it is hereby
ORDERED AND ADJUDGED that the case is DISMISSED WITHOUT PREJUDICE.
II
A
The majority concludes, first and foremost, that the City was a “prevailing party” because it secured an involuntary dismissal. See Maj. Op. at 15–17. That seems exactly right to me. As the majority explains, in CRST, the Supreme Court held that a defendant has “fulfilled its primary objective,” and is thus a prevailing party, “whenever the plaintiff‘s challenge is rebuffed, irrespective of the precise reason for the court‘s decision.” 136 S. Ct. at 1651.1 That makes sense, in both formal and practical terms.
As a formal matter, although some wins are bigger than others, to be sure, a defendant “prevail[s]” whenever it secures an involuntary dismissal. Even a dismissal on jurisdictional grounds, for instance, confers on the defendant a narrow legal right against having to re-litigate the exact same issue in the exact same court. See, e.g., Acree v. Air Line Pilots Ass‘n, 390 F.2d 199, 202–03 (5th Cir. 1968) (holding that although a jurisdictional decision isn‘t binding on all matters that could have been litigated, it is “conclusive as to matters actually adjudged“); Charles Alan Wright & Arthur Miller, 18A
So too, the Court in CRST justified its irrespective-of-the-merits criterion on practical grounds. It explained, for instance, that even when a case is dismissed for a non-merits reason—including lack of jurisdiction—“significant attorney time and expenditure may have gone into contesting the claim.” Id. at 1653. Accordingly, the Court observed, the defendant should be eligible for a fee award even in those circumstances: “Congress could not have intended to bar defendants from obtaining attorney‘s fees in these cases on the basis that, although the litigation was resolved in their favor, they were nonetheless not prevailing parties.” Id.
I would simply take the Supreme Court at its word—that a defendant “prevail[s]” for attorneys‘-fees purposes “whenever the plaintiff‘s challenge is rebuffed, irrespective of the precise reason for the court‘s decision,” id. at 1651—and stop there.
B
The majority goes on to emphasize what it calls “[s]till another indicator” of the City‘s prevailing-party status—namely, it says, that the district court dismissed Beach Blitz‘s claims “on the merits.” Maj. Op. at 17. Because I would steer clear of the on-the-merits briar patch, I can‘t join that part of the majority‘s opinion.
Second, there is the oddity of this case—namely, the uncomfortable fact that the district court dismissed Beach Blitz‘s claims for failure to state a claim under
Here, for me, is the capper: In attempting to interpret the phrase “on the merits” as used in
Happily, in order to agree with the Court‘s resolution of this case, I don‘t have to.
III
I would begin and end with what the Supreme Court said in CRST: A defendant “fulfill[s] its primary objective,” and thus becomes a prevailing party, “whenever the plaintiff‘s challenge is rebuffed, irrespective of the precise reason for the court‘s decision.” 136 S. Ct. at 1651. Given the clarity of that statement, I see no need to