Johnson v. Mortham

Russell, portion opinion judgment insofar as defendants seek as a in as one clearly appro- plaintiffs was therefore matter of law on TILA “[i]t states that claims. pay- require court to priate plaintiffs stipulation for the trial Pursuant before the of the named members the Magistrate Judge, plaintiffs ment to each sup- fraudulent offset their of a cash amount that would class pression hereby claim is DISMISSED with outstanding obligations which would other- prejudice. Defendant Earl’s motion for Id. remain collectable them.” wise GRANTED, part, summary judgment in damages. on the issue actual Plaintiff Finally, subsequent Eleventh de Circuit Wiley prove has failed to that he is entitled regard cision leaves doubt with to Ransom’s damages. to recover actual authority on this In Adiel v. Chase issue. Ass’n, F.Supp. 131 Fed.Svgs. & Loan It is so ORDERED. (S.D.Fla.1986), aff'd, 810 F.2d 1051 Cir.

1987) specifically that the district court held in

plaintiffs prove must detrimental reliance damages. appeal,

order to recover actual On directly

the circuit court did not address the issue; however, it did

detrimental reliance court

hold the district did err

awarding equal an amount to the undisclosed charges statutory ac finance as rather than JOHNSON, al., Plaintiffs, Andrew E. et damages.7 Id. at 1054-55. If Ransom tual authority, appellate then the were clear wrong would have been to hold as it did MORTHAM, etc., Sandra Adiel. al., et Defendants. Having determined that actual dam No. TCA 94-40025-MMP. reliance, require proof ages of detrimental Wiley must consider whether has the Court Court, United States District proving actual met his burden of that he did Florida, N.D. rely ly on defendant’s failure to make the Tallahassee Division. appropriate TILA disclosures. Defendant points alleged Earl’s out that the violation 29, 1996. Oct. against it is that the form of disclosure was monthly charge incorrect. The finance was form, Wiley

disclosed on the admits that paying monthly aware that was

he was he

charge evidently of 25%. Plaintiff relies

solely legal argument proof on his necessary, is not as he

detrimental reliance opposition

has filed no evidence

summary judgment put motion that would dispute. reliance issue in

the detrimental

Accordingly, the finds that Earl’s is Court summary judgment on issue of

entitled damages. actual

the named

Conclusion conclusion, finds that Lending applies

Truth Act to Alabama

pawnbrokers. the motions for DENIED, part,

summary judgment are purpose recovering ages important was for the 7. The characterization of the undisclosed finance Adiel, actual, statutory, prejudgment charges opposed interest. as dam- HATCHETT, Judge, Circuit Chief Before VINSON, PAUL, Judge, and District Chief Judge. ORDER remedy would constitutional infirmities of Leg- District Three. Id. The BY THE COURT: (“Plan timely adopt plan islature did a new Pending are the Plaintiffs’ motions and 412”), signed which the Governor into law. motion for fees and costs amended hearing receiving After a comments from Secretary Defendants Florida involved, parties approved all this Court Mortham, Senate, the Florida State Sandra plan new directed that Plan should Representatives and the Florida House of plan serve as the for the 1996 elections and Defendants”) (docs. (collectively, the “State thereafter until the Florida 250), 216 & and the mo- adopts plan another or until further order of expert tion to tax witness fees this Court. Johnson 1996 WL (doc. 205). United States (N.D.Fla. 1996). May Subse- Background I. quently, Supreme Court the United hispanic are white and voters —Hunt, U.S.-, States decided v. Shaw equal protection challenge who raised an 1894, (1996), 116 S.Ct. 135 L.Ed.2d 207 Congressional Florida’s Third District under —Vera, U.S.-, 1941, Bush v. 116 S.Ct. Reno, authority v. of Shaw cases, In those 511(1993). The Supreme Court reached conclusions which District was Florida’s statewide con- essentially confirmed our decision that Dis- gressional districting by established 1992 a trict Three scrutiny. could not survive strict three-judge “DeGrandy federal court —the Thereafter, all promptly Defendants dis- Court.”1 Plaintiffs claimed that District appeals. missed their segre- Three was unconstitutional it because Analysis II. gated race, voters on the basis of and was narrowly compelling tailored to further a Liability of the State Defendants A. governmental interest. The Plaintiffs now seek award of granted On November plain- we attorney against fees and costs the State partial summary tiffs’ judgment motion for Plaintiffs, According Defendants. on the basis that District Three was drawn they successfully have asserted constitutional predominately reasons, for race-based there- claims the State Defendants under by triggering scrutiny. strict Johnson v. Code, Title United States Sections 1983 Mortham, 1529, 1552-53, F.Supp. 915 “prevailing parties” are thus (N.D.Fla.1995) (three-judge panel). attorney entitled to fees under the terms of Thereafter, three-day a bench trial was Title United States Section 1988.2 held to remaining determine the Defendants, issue of The hand, State on the other whether District Three could deny any withstand strict liability for fees in this 17,1996, scrutiny April majori- First, review. On a case. the State Defendants contend ty of this court held that Florida’s Third that the prevailing parties Plaintiffs are not Congressional pass District did not they strict object Congres continue scrutiny racially it because was a sional District gerryman- by Three as redrawn the Flor narrowly dered district not Legislature. Second, tailored to fur- ida the State Defen ther a compelling governmental interest. they dants maintain that nothing had to do 1460,1495 Johnson v. F.Supp. with the creation challenged congres of the (N.D.Fla.1996) (three-judge panel). district, We also sional and that did not act Legislature invited the Florida adopt any way so deprive as to the Plaintiffs of congressional new redistricting plan right, privilege, which immunity guaranteed by Wetherell, DeGrandy F.Supp. 1. voting guarantees of the fourteenth or fifteenth (N.D.Fla.1992). DeGrandy amendment,” The included language uses similar to section judges three-judge two of Judge of this court: 1988, and the two statutes should be construed Judge Hatchett and Vinson. similarly. Party, Riddell v. National Democratic (5th Cir.1980). provides Section for "any proceeding fees in action or to enforce the legal relationship De- material alteration the State Constitution. Hobby, supra, Farrar v. parties. presents ease argue that this fendants unjust any 113 S.Ct.. at 121 L.Ed.2d at U.S. at would make circumstances Dist., 503; Indep. supra, Sch. Final- Garland them. award of 792-93, that the fail- U.S. at assert ly, Defendants the State monthly at 878. at- L.Ed.2d counsel to file of Plaintiffs’ ure required Local reports as torney time seriously questioned It cannot be request the Plaintiffs’ Rule 54.1 bars “prevailing in this casé are the Plaintiffs attorney’s fees. parties” purposes of section 1988. Plain 1983, alleging brought suit under section tiffs Attorney’s Under Sec Fee Awards a ra District Three was tion gerrymander cial which could not withstand 1988(b) “the provides that scrutiny light constitutional the United discretion, prevail court, may allow the in its post-1992 Court’s decisions. rights under to enforce ing party” in a suit trial, Following three-day majority of this reasonable fee 1983 “a section district. agreed, and invalidated the 1988(b). § the costs.” U.S.C. part of reconfigured Florida then give victims section 1988 Congress enacted Three in order to with this access to rights violations effective of civil mandate and the standards set Court’s encourage private judicial process, and to the Secretary The Florida the Court. attorneys to enforce fundamental general newly implement the creat of State will now rights under section constitutional year’s Congression in this ed District for use 1181, City Apopka, F.2d v. 698 Dowdell Therefore, as a result of the al elections. Cir.1983). (11th 1189 action, District Three has been have materially altered and the Plaintiffs (a) party” “prevailing stan The challenge to in their Constitutional succeeded contend that Defendants dard. The State configuration. its object to the Plaintiffs continue to since the Legislature, as drawn the new district Moreover, inappropriate it be would parties. A prevailing they cannot be deemed deny “prevailing party” Plaintiffs sta the under section rights plaintiff prevails civil objected to the merely later tus because “any signifi on he or she succeeds 1988when district. See Church Legislature’s redrawn litigation achieve[d] in some cant issue Service, City Org., v. Scientology Flag Inc. sought bringing in parties the of the benefit Cir, (11th Clearwater, 1509, 2 F.3d 1514 Trailers, 969 v. Dane suit.” Great Ruffin 54, denied, 807, 115 1993),cert. 513 U.S. S.Ct. (11th Cir.1992) (alteration 989, F.2d 992 (1994). Plaintiffs’ ac 13 The 130 L.Ed.2d 910, 113 original), 507 U.S. S.Ct. Legislative plan have response tions in (1993), (quoting Texas L.Ed.2d 655 question of whether little to do with Indep. v. Sch. Teachers Ass’n Garland State litigation. in this See id. prevailed Plaintiffs 1486, 782, 791-92, Dist., 109 S.Ct. 489 U.S. fully in their have succeeded The Plaintiffs (1989)). “Thus, at a 1493, 103 L.Ed.2d 866 Three. the former suit to strike down minimum, party prevailing a to be considered may to chal later seek That the 1988, the meaning [section] within the Three is modified District lenge the new a resolu point able to plaintiff[s] must be change there is a material “When irrelevant: changes legal dispute which tion of the relationship parties legal between in the relationship [themselves] between plaintiff], the fact that [the which benefitted Dist., Indep. Sch. defendant^].” Garland challenge that re plaintiff] continues [the 1493, 792, 103 at 109 S.Ct. at supra, 489 U.S. that it lationship does not mean as modified 877; Hobby, v. see also Farrar L.Ed.2d matter.” Id. ‘prevail’ as a threshold did not 572-73, 566, 103, 111, 121 113 U.S. S.Ct. 506 (b) “special circumstances” Therefore, the touch L.Ed.2d 494 argue exception. Defendants also The State inquiry focuses prevailing party stone faith, that good so they have acted plaintiffs’ lawsuit caused on whether the 1122 constitution, it

“special exist which make and are thus not liable un circumstances” unjust pay attor them the Plaintiffs’ 1983 and to make der section 1988 fees. ney Although section does not Although position entirely 1988 this is unrea sonable, to award an fee require the court it eclipsed by simple is fact that ease, every party prevailing DeGrandy step Court was forced to extremely is limited: “the congressional court’s discretion redistricting plan create ordinarily ‘should recover an party only Legislature after Florida failed to special unless circumstances fee legislative responsibilities regarding fulfill its ” unjust.’ such an would render award reapportionment. already As Court has 87, 1, Bergeron, 89 n. Blanchard v. 489 U.S. recognized, redistricting plan a court-drawn 1, 67, 939, n. 72 n. 109 S.Ct. 942 103 L.Ed.2d obligation,” is “unwelcome is neces (1989) Piggie 1 Newman v. Park (quoting only sary governmental body when the Enter., Inc., 400, 402, 964, 390 U.S. 88 S.Ct. or unwilling legislative unable to fulfill its (1968); Hensley 1266 L.Ed.2d duties. See Johnson v. , 424, 429, 103 (N.D.Fla.1995) v. 461 U.S. S.Ct. F.Supp. (quoting Eckerhart (1983)); 1933, 1937, Finch, 47-48 see 407, 415, v. Connor Kimbrough, also F.2d Robinson v. 1828, 1834, 52 Reyn L.Ed.2d 465 (5th Cir.1981). Moreover, Sims, olds v. judicially exception is a (1964)). circumstances Further, imposed provision not found the text within plans temporary court-ordered are a mea exception of section “should be sure, legislative and do not preclude body narrowly construed so as not to interfere devising plan from better reflects its purpose passing congressional with the legislative judgment. Koebig, Ramos v. Heckler, (5th [section Martin v. 773 F.2d Cir.1981).3 1988].” F.2d if 1145, 1150(11th Cir.1985) (en banc); see also the Florida created had its own Hayes, congressional plan, redistricting the court- Hatfield Cir.1989). plan drawn necessary. would not have been permit To the State Defendants to avoid demonstrating spe of The burden liability attorney’s fees under these cir squarely cial circumstances falls on the De only cumstances would seem to reward them fendants, showing” must a “strong who make abdicating legislative responsibili their justify attorney’s to of denial fees and costs however, importantly, ties. More the fact Heckler, prevailing plaintiffs. Martin v. merely pursuant that state acted to fed 1150; supra, at 773 F.2d Riddell v. National regulation special eral is not a circumstance Party, supra, Democratic 624 F.2d 543. preclude prevail sufficient a fee award to faith, good culpability, “Defendants’ lack of ing plaintiffs under section 1988. Martin v. or prompt remedial action do not warrant Heckler, supra, 773 F.2d at 1150. Accord special denial of under circum ingly, the argument State Defendants’ that Heckler, preclusion.” stances Martin v. su they should not be liable held because the pra, Further, 1150. F.2d at is also “[i]t DeGrandy challenged Court created dis special not pre circumstance sufficient trict must fail. against clude a fee award the state defendant merely that the pursuant state acted to fed Defendant Sandra as Id.; regulation.” eral see also Rose v. State, Secretary argues Florida’s further Heintz, (2d Cir.1986). 806 F.2d that she should not be liable for The State absolutely Defendants contend fees because she nothing had to do Court, that DeGrandy congressional and not with districting, except State, ministerially created keep passed by file and laws Three, they deny not plaintiffs any did legislature. The Tenth Circuit addressed right, privilege immunity guaranteed by or argument this same in re Kansas In Con- Prichard, City In Bonner v. 661 F.2d sions of former Fifth Circuit handed down 1209, (11th Cir.1981) (en banc), the Eleventh prior to October adopted binding precedent Circuit all deci- Cases, Special circumstances also do not ex Reapportionment Dist. gressional Cir.1984). case, (10th agree in on the Plaintiffs’ In that ist this case based F.2d 610 the Florida to abate had awarded the ment with court district brought against Legis section 1988 the Florida fees under the action Secretary On of State. until made its determina against the Kansas lature this Court Secretary argued “Stipulation State of Abatement and appeal, the tion. (doc. 18), an precluded award special circumstances Decree” the Florida Sen to Abide any he had not taken him because Representa Florida House of ate and the the unconstitutional action to enforce agreed official Plaintiffs that the ac tives with the districts, and, fact, given in had congressional brought against tion them: would file his own lawsuit that he assurances until the court makes a shall be abated The Tenth Circuit to correct the situation. not cur- determination of whether or reasoning Secretary’s argument, rejected the districting plan, any congressional or rent an to no more than asser “amount[ed] that it thereof, is unconstitutional or violative faith, good which is tion that he acted princi- of state or federal laws under the More Id. at 613. circumstance.” ples out the United States set over, against enforcement offi awards “[f]ee Reno, perti- Shaw occurrences, even are run-of-the-mill cials Legislative rulings, nent court and the De- occasion, legislature had a state though, on agree by any fendants further to abide timely in a or more or reacted different acted judgment, order or decree entered this manner, have no need for a there would been ... matter injunction.” Id. at 612 or for an lawsuit argue Both the and the Senate House Virginia v. Supreme Court Con (quoting actively oppose the Plain- since did not States, 446 U.S. the United sumers Union of litigation, they should not be tiffs 1967, 1978, assessed the Plaintiffs’ (1980)); Hastert v. Illinois see also Comm’rs, Bd. Election State Koebig, supra, 638 F.2d at In Ramos v. Cir.) (“It consequence no 1444 n. 16 is of Fifth the former Circuit addressed played no Board of Elections that the State analogous fees under award proceedings agreed active role to force the facts. Ramos involved a lawsuit [congressional whatever redistrict enforce City redistricting system in the the ward adopted, since ing] plan the district plaintiff’s Seguin, As a result of the Texas. may taxed even entities be suit, City the unconsti- Council admitted regu of role is limited to enforcement whose tutionality plan adopted in and a of the promulgating.”), they played no role lations implemented.4 The plan court-drawn was — U.S.-, rt. ce 426, plaintiffs were not argued that the Council That same 1988 be- “prevailing parties” under section applies here. rationale to unconstitu- cause “the Council admitted tionality plan agreed to the of the 1962 Secretary of State Consequently, since injunction under that [prohibiting elections official in was the enforcement Mortham only disputed laws, issue— plan], and that the charge administering the election the of plan plaintiffs’ or the the Council’s nothing with the whether that she had to do fact of preferable decided in favor plan was Three does not absolve creation of District —was Ramos 845. The the Council.”5 Id. at responsibility her of suit, plaintiffs and to allow plan the filed the when Court reversed the decision of The Ramos simply attorney's plaintiffs fees adopt plan the to recover a court-drawn with- district court to unfairly penalize governmental filing City opportuni- would affording suit the Council the out first process updating their election legislative plan preclear- bodies in the ty adopt and obtain machinery standards. Id. Voting Rights to constitutional Act. 5 of the ance under section argu- rejected this Court 845-46. The Ramos at 844-45. Id. suit, ment, finding plaintiffs not filed had the and obtained devised City argued the Council would not have Alternatively, Seguin the Council plan preclearance in time for for a new special their case circumstance existed in Therefore, the upcoming at 845. election. Id. attempting a new were to devise (2) concluded, however, plaintiffs summary Court that the File a of such time record (15th) prevailing parties day were and entitled to attor- with the clerk the fifteenth ney’s “[a]s a direct during fees because result of pendency of each month plaintiffs’ City prohibited suit ... was action, during for work done from conducting the 1978 election under the preceding month. That plan. unconstitutional the Council was (3) If a be claim will made for services good consequence.” faith is of no Id. In any person performed by not a member words, Council “[t]hat the admitted the bar, separate time record shall unconstitutionality plan, of the 1962 and con- be maintained for each such individual injunction, entry sented to does not below, together specified filed as change plaintiffs [the] [that result are hourly per- with the rate at which such prevailing parties entitled to actually son is reimbursed.

fees.]” Id. case, In Legislature Florida did ‡ sjí ‡ Hi # Hí uneonstitutionality not admit to the of Flori- (5) comply Failure to with these re- District, da’s Third simply but quirements in attorneys’ will result agreed with the to hold the action being period. for the disallowed omitted abeyance until the Court determined whether the district was constitutional. Fur- 54.1(B). N.D.Fla.Loc.R. Plaintiffs’ counsel ther, ruling, absent a court it seems clear any failed to file of his time records that the Florida would have tak- 20,1996. August until remedy en no action to the constitutional Notwithstanding plain language of infirmities of District Three. 54.1, Rule counsel Plaintiffs’ states that fact that the he Legis- the Florida was unaware 54.1 agreed abeyance applied lature the action in that Rule hold present However, is not a circumstance which cause. would most recent unjust. make an award version provides: of the Local Rules “The appended shall, within scope, gov rules their comply failure with Lo- proceedings ern all in the Northern District cal Rule 54.1 A.M., of Florida after 12:01 Eastern Stan Time, April 1, dard 1995. All existing Finally, rules the issue of Plaintiffs’ coun upon are revoked sel’s said comply failure to with Local date.” In Rule 54.1 effective (B) must be Re: 1995 addressed. Subsection Revision Rules (N.D.Fla. provides, 1995) part: Rule added) relevant (emphasis Jan. (included Rules). forward Local (B) Ordi Attorneys’ Fees Records. narily, the fact that counsel was unaware of proceeding any party seeking the existence of Rule Local 54.1 is no excuse attorneys’ an award of fees from op- for failure to with it. posing The Local party pursuant any statute, con- tract, law, put Rules counsel on party seeking constructive notice of such an procedural all attorneys’ requirements award of fees shall: and time limita tions utilized in this Court. United complete, separate, Maintain a and Cf Cannistraro, (to States v. 694 F.Supp. accurate record of time the nearest ¡lo (D.N.J.1988) (“Parties, hour) especially rep of an when particular devoted to the counsel, action, resented should be contemporaneously recorded considered to with have expended, applicable the of time for each constructive notice the lo rules.”), specific activity and each cal part, involved the vacated in on aff'd (3d just grounds, action Cir.1989), (i.e., “research” or “con- 871 F.2d 1210 ference”); Fifth Circuit held were no spirit that circum- would do violence to the remedial of both stances in the case would which render an award Voting Rights the and the Awards Act.” Id. Act attorney’s unjust: deny of fees "To a successful at 846.

plaintiff attorneys' in these circumstances (doc. filing requirement, this existence of 98.6 L.Ed.2d 1995). on Dee. entered Furthermore, Circuit has re- the Eleventh complaint January filed their on 1994— rulings denying peatedly upheld lower court prior over months fourteen effective failing comply parties to attorney’s fees to present date of the Local Rule 54.1. The governing rules motions for attor- with local new, entirely preex- Rule 54.1 is no had ney’s example, in Zaklama v. For fees. isting counterpart in the older version of the Center, 906 F.2d 645 Mount Sinai Medical nothing rules. there local was (11th Cir.1990), had the lower court denied put Plaintiffs’ counsel on actual or construc- attorney’s plaintiff’s for motion practice tive notice of this Court’s usual re- plain- 1988 because of the fees under section filing of garding the fees records tiff’s with a Southern Dis- failure until Local Rule 54.1 went into effect on governing such trict Florida local rule of April Apparently, publi- the 1995. official appeal, the Eleventh motions. On Circuit of cation the extensive 1995 revisions could that a local rule of court determined Local Rules for Northern District of for attor- time limits motions establish Publishing Company Florida West did not fees, ney’s doing but in so would have to Thus, come about until sometime explicitly applicable state that it is to claims upon that counsel asserts he relied Finding Id. at fees. he were what believed the current 1995 Local of Florida rule met this Southern District Rules, they actually when were not. standard, Id. the Eleventh Circuit affirmed. The Circuit has at 650. Eleventh reached Moreover, above, Local discussed Rule See, e.g., in other cases. similar conclusions litiga- adopted in this 54.1 was mid-stream Quick Peoples County, Bank Cullman of tion, application its this so ease was not (11th Cir.1993); Meadows 993 F.2d fully especially light clear. This is true Inc., By Through Cagle’s, Meadows v. three-judge proceeding. the nature of this Cir.1992). Tjoflat Judge March Chief On Appeals ap- the Eleventh Circuit ease, this is applicable rule included, judge panel pointed three Attorneys’ plainly captioned “Motion for must, Judge of as it a Circuit the Eleventh language of the rule establishes Fees.” (doe. 15). Circuit, Judge'Hatchett, There- requirements time for all motions for attor fore, Local application Rules 54.1(A). ney’s N.D.Fla.Loc.R. See of Florida in this unusual Northern District (B) provides of the rule detailed Subsection implication and of Eleventh case statewide instructions on when how composition was somewhat uncertain. Circuit Thus, time to be filed. it records are uncertainty by to this The Court contributed timely comply that failure to with obvious customary practice of failing to follow its filing requirements under Local 54.1 Rule entering scheduling immediately its standard can in a of motion for attor result denial filed their at the time Defendants order ney’s fees. spe- pleadings, would have responsive ease, however, con In this we must cifically counsel of at- alerted Plaintiffs’ extenuating cir clude that there are several filing torney’s requirement. time cumstances, which, together, taken when insignificant Finally, it is not noncompliance of Plain partially excuse the Attorney’s First, scheduling purpose Fees “[t]he tiff’s counsel. order 42, United [Title in the Act was not entered until late Awards case and, en contrary customary is to ensure the effective litigation, 1988] laws, rights by making Court, the civil practice scheduling order forcement of of this rights litigate financially feasible to civil finally to this it as entered omitted reference City Apopka, su- Dowdell v. procedure and to alert counsel to the violations.” failed of motion); dispositive Simon v. lo Dunlap v. Occidental memorandum 6. See also Transamerica 1544, (11th 629, Co., (11th Cir.1988) Kroger Co,, Cir. 743 F.2d 1546-47 Ins. 858 F.2d 632 Life 1075, denied, 1984) (same), (local parly 105 provide non-moving cert. notice to a rules 2155, filing L.Ed.2d 511 requirements responsive S.Ct. 85 of time for 1126 1920,8

pro, deny at 1189.7 To Plaintiffs Title United 698 F.2d States any these circumstances would fees under general statute for taxation of costs.9 Defendants for their reluc- reward the State example, provide For section 1920 does not redistricting process, engage tance to expenses general for taxation of the incurred propitious failure of Plaintiffs’ counsel by attorney, expenses, an such as travel tele- attorney filings in a to make his records phone charges, costs, photocopying nor timely manner. expert does it include witness fees in excess add, however, expenses any that our hold- of the limited allowed for We hasten wit- ing strictly peculiar is limited to the facts of ness. penalty noncompliance this case. The for 1988, however, prevail Under section clearly

with Local 54.1 forth in Rule is set ing party is much entitled to recover more in the rule: Failure to “will result “ way litigation of expenses: ‘[W]ith the attorneys’ being disallowed the omit- for exception of normally routine office overhead period.” attorneys ted sanction of Some who practicing attorney, absorbed all rea comply required. only fail to is It is expenses prepara sonable case incurred of the of unique confluence the most circum- tion, during litigation, the course of or as an partially stances this case we excuse aspect may of settlement of the case be taxed noncompliance counsel’s here. as costs under section 1988’ and ‘the stan severity We also have been mindful of the given dard of reasonableness is to be a lib of a sanction would have denied the ” interpretation.’ City eral NAACP v. Ev of any attorney recovery. A fee less- (11th Cir.1987) ergreen, 812 F.2d 1337 sanction, taking er into account the matters (alteration in original) (quoting Dowdell v. above, just is discussed more under the total- 1192). City Apopka, supra, F.2d at 698 of ity presented of the circumstances here. words, any expenses during incurred will we reduce the Plaintiffs’ at- litigation the course of are normally torney request by twenty-five percent fee fee-paying billed clients should be taxed (25%), seventy-five but allow award of under section 1988.10 (75%) Lighto See Abrams v. percent the amount of lier, (3d (exclusive Cir.1995); 50 F.3d 1225 Davis expenses of costs and which are County, v. part Mason recoverable as of an un- 1488 fee below) Cir.), denied, der section cert. discussed U.S. S.Ct. (1991); which the Lajfey Plaintiffs would be enti- L.Ed.2d otherwise v. North (D.C.Cir. tled to Airlines, Inc., receive. west F.2d 1984), U.S. S.Ct. (3) expenses Recoverable costs and un- (1985); City Dowdell v. der Section 1988. Apopka, supra, 698 at 1190. F.2d There fore, necessarily An “[t]he award fees under standard involved a section 1988 also case-by-case balancing includes various costs and of relevant factors. expenses, over above those outlined in guideline of what is includable must be Nevertheless, (4) the fact that exemplification copies an award attor- for pa- Fees ney’s mandatory by fees is made a statute such as pers necessarily obtained for use in the not, itself, case____ section 1988 does in and of obviate the requirement fully comply require- with the ments set out in the Quick Local Rules. See 11(B), part infra, 9. As discussed in all of those Bank, Peoples supra, 993 F.2d at 799. costs taxable under section 1920 shall be taxed against the United States. provides, part: Section 1920 in relevant judge any A or clerk of the United infra, recovery litigation 10. As discussed may following: as costs tax expenses qualified by Virginia Univ. West Hos- (1) marshall; Fees of the clerk and 83, 102, pitals, Casey, Inc. v. reporter Fees of the court all or for (1991), in which stenographic transcript necessarily case; Court of obtained (3) use in the United States held that convey any printing authority Fees and section 1988 does disbursements witnesses; expert [and] shift

1127 (N.D.Fla. F.Supp. of v. in the context appropriate is that which 1996). However, Plaintiffs are not entitled to relationship, the substan- attorney-client case, award of costs under the EAJA. nature of the and procedural and tive litigation is conduct- in which the the climate out, points As the United States City Apopka, supra, 698 ed.” Dowdell statutory Plaintiffs have failed to cite to a F.2d at 1192. “specifically provides” basis that for an expert appar It award of witness fees.12 is Plaintiffs are conclude that We expert cannot ent recover reasonably incurred their entitled to recover witness fees under section 1988. West expert than wit expenses, other costs and Virginia Hospitals, Casey, Inc. v. Univ. fees, section 1988.11 ness under 1138, 1148, U.S. 111 S.Ct. (1991), Supreme L.Ed.2d Liability Ex- States for B. United conveyed authority held that section 1988 no pert Fees. Witness expert In the to shift witness fees. Civil have also moved to tax their The Plaintiffs Rights Congress responded Act of to the United expert witness by amending to this decision section 1988 rely on Title Unit- States. The pro provide expert fees in an “action or Code, 2412(b), Equal ed States ceeding provision enforce a of section 1981 to (“EAJA”), pro- which Act Access Justice 1988(c). § or 1981a.” See 42 Howev U.S.C. vides: er, rights for the other civil statutes which (b) by expressly prohibited stat- Unless Congress applies, section 1988 left intact the ute, may award reasonable fees a court Supreme ruling Casey. in There Court’s attorneys, in expenses of addition fore, and pro or because this was not an action may pursuant be awarded costs ceeding provision of section 1981 to enforce (a) costs], 1981a, allows taxable provide [which subsection or section 1988 does not party any civil action prevailing expert witness the United by against the or brought County, or United States States.13 Davis v. Mason Cf. (9th Cir.) (“Under any agency any 1473,1487 Casey, of the United official F.2d capacity may acting in his or her official district court not use section 1988 as States any having jurisdiction expert of such fees in excess basis to award witness §§ impose be liable of the limits 28 U.S.C. action. The United States shall 1920.”), and expenses to the same for such fees and 275,116 L.Ed.2d 227 any party would be liable S.Ct. extent that or under the terms under the common law any expert To witness costs the extent provides specifically statute un- may against the United States be taxed for such an award. Code, section der Title United above, is outlined clearly pre- the amount of those costs the Plaintiffs As discussed sections underlying action. Johnson Title United States vailed See (1987) ("when Apparently, has not had 11. the Eleventh Circuit paid party to its seeks reimbursement for fees with what is included in an an occasion to deal witnesses, expert a federal court is bound expenses since the own award of under section 1988 1821(b), explicit § Casey, supra, absent contract or n. 10. the limit of Court's decision in contrary”). expenses statutory authority to the the reasonable costs and We believe expenses, telephone reproduction ex- include: attorney, expenses penses and travel time Ligh- noted in Abrams v. 13. As the Third Circuit attorney, postage. n. See tolier, Cir.1995), (3d light infra 50 F.3d 1204 recovery separate from the calculation of This categories expenses Casey only a few narrow fees, setting is no local rule and there may of a reasonable attor- be recovered as monthly filing requirements for such costs out 1988(b): reproduction § ney fee under U.S.C. subject expenses. it will not be attorney, expenses, telephone expenses of the applicable to the reduction 25% attorney, expenses travel time and award. fee attor- postage, “it is the custom of to the extent community their clients neys to bill in the local (collecting separately Fitting for them.” Id. at 1225-26 generally v. J.T. Gib- Co. See Crawford citations). bons, Inc., 250) 216) (doc. Philadelphia In re & as amended are generally and 1920. See (3d 306, Trust, liability, subject Mortgage 307-08 as to but to a GRANTED- Cir.1991) (in authority attorney’s of other for absence fee award to 25% reduction costs, taxing fees or such expert they witness would otherwise be entitled to by general statute on governed costs are receive as sanction. costs). taxing Fitting Co. v. In Crawford (2) expert Plaintiffs’ motion for witness Gibbons, Inc., supra,

J.T. (doc. 205) against the fees United States effect of sections 1821 held that the combined DENIED. expert a court to tax witness and 1920 allows (doc. (3) 202), Bill of Costs only up the limit set out section fees the extent that those costs are taxable under 1821(b). at 2497- S.Ct. U.S. 28, Code, 1920, Title United Diamond, 636 F.2d 1364 Jones v. Cf. against shall be taxed Clerk the Unit- (5th Cir.1981) (“The litiga rule in civil usual ed States. experts ... are tion in federal courts is compensable only rate as other at the same (4) Having determined all issues of liabili- witnesses.”), grounds, amended on costs, ty attorney’s for fees and the second U.S. S.Ct. phase proceeding of the bifurcated shall com- dismissed, 950,102 cert. S.Ct. procedures mence in accordance with the set L.Ed.2d 1033 Section 1821 restricts 54.1(E) (F). forth in Local Rule per day, in such costs to addition to $40 (5) plaintiffs’ filings The motions to strike limited subsistence and travel allowances. (doc. 288) 281, 283, and are DENIED as 1821; Corp. § 28 U.S.C. National Bancard moot. U.S.A, Inc., 112 F.R.D. v. VISA (S.D.Fla.1986). Plaintiffs cannot recover DONE AND ORDERED. expert beyond those witness costs amounts. g., Corp., E. Glenn v. General Motors HATCHETT, Judge, Chief Circuit (11th Cir.), F.2d 1574-76 concurring part, dissenting part. plaintiffs attorney’s The this action seek (1988); Justice, Ray Department defendants, against fees costs under (S.D.Fla.1994), F.Supp. aff'd, 1584-85 Title United States Section 1988. Cir.1996). 87 F.3d 1250 To warrant an award of fees and The Plaintiffs have filed their Bill of costs, plaintiffs must establish that (doc. 202).14 Costs The United States inter “prevailing parties.” majority are the case, early vened in this and acted as a three-judge plain- court has found that party-defendant. acknowledged It has its standard; prevailing party tiffs have met the party ques status as a in the case. Without therefore, majority’s finding dictates the tion, opposition the United States led the ruling prevailing parties. are —the plaintiffs’ challenge constitutional in this dissent, however, majority’s I from the litigation, vigorously defended Florida’s .ruling application on the of the Northern Third District. 54.1, of Florida’s Local Rule being since the State Defendants are held governs motions for fees because fees, responsible plaintiffs’ attorney we plaintiffs’ counsel failed to with hold that those which are taxable under costs filing requirements only against section 1920 shall be taxed Noncompliance under Local Rule 54.1. with United States. Local Rule 54.1 mandates a disallowance of Accordingly, hereby it is ORDERED AND attorney’s period.” fees for the “omitted

ADJUDGED: 54.1(B). following N.D.Fla.Loc.R. Instead of 54.1, plain language Plaintiffs’ motions for costs and attor- of Local Rule (doc. ney’s sanction, majority imposes twenty- the State Defendants a lesser Here, losing party upon 14. The Bill of Costs is on the standard form court authorization. plaintiffs’ identify any utilized United States District Courts to tax Bill of does filed Costs routinely specific party against. costs. The Clerk taxes costs taxed to be

H29 plaintiffs’ attor- percent reduction five request. Because strict obedience

ney fee importance in the trou- is of Rule 54.1

Local attorney’s fees, I dissent area

blesome opinion. majority portion of the

from minimizing the majority’s reasons for noncompli- against the

sanction convincing. Local Rule 54.1 are not

ance with majority’s vote

Accordingly, because the ease, the law of

establishes binding Neverthe- finding is on me.

party

less, ruling regarding I dissent from

sanctions. SHIPPING

NARCISSUS

CORPORATION,

Plaintiff, REEFERS, N.V., LTD., Looza

ARMADA Ltd., Stevedoring, Juice

Port Canaveral Products, Inc.,

Bowl and Sonoco Plastic

Drum, Inc., Defendants.

No. 94-189-CIV-ORL-18. Court,

United States District Florida,

M.D.

Orlando Division.

Jan.

Case Details

Case Name: Johnson v. Mortham

Court Name: District Court, N.D. Florida

Date Published: Oct 29, 1996

Citation: 950 F. Supp. 1117

Docket Number: TCA 94-40025-MMP

Court Abbreviation: N.D. Fla.