United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZTOVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court in consideration of Defendant
STME, LLC's Motion for Award of Attorney's Fees and
to Tax Costs (Doc. # 32), filed on May 14, 2019. Plaintiff
Kimberly Lowe responded on May 28, 2019. (Doc. # 33). For the
reasons that follow, the Motion is denied.
worked as a massage therapist for STME from January 13, 2012,
until her termination on October 22, 2014. (Doc. # 25 at 2).
Believing that the termination was the result of unlawful
discrimination related to a planned vacation to Ghana, Lowe
filed a charge with the Equal Employment Opportunity
Commission (EEOC). (Doc. # 21 at 5). The EEOC subsequently
sued on Lowe's behalf for disability discrimination under
the Americans with Disabilities Act on April 26, 2017.
EEOC v. STME, LLC, 309 F.Supp.3d 1207 (M.D. Fla.
EEOC action was later dismissed with prejudice and Lowe's
motion to intervene was denied as moot. Id. at 1216.
As a result, Lowe initiated this action in state court,
alleging that STME committed associational race/national
origin discrimination and retaliation in violation of 42
U.S.C § 1981 and disability discrimination in violation
of the Florida Civil Rights Act (FCRA). (Doc. # 1-1 at 4-5).
STME removed the case to this Court. (Doc. # 1).
Court granted STME's motion to dismiss the initial
Complaint without prejudice after hearing oral argument.
(Doc. # 16). Lowe filed an Amended Complaint re-alleging the
same violations of Section 1981 and the FCRA. (Doc. # 21).
The Court then dismissed the associational discrimination
claim with prejudice and the retaliation claim without
prejudice, but did not dismiss the FCRA claim. (Doc. # 24).
Lowe filed a Second Amended Complaint re-alleging the Section
1981 retaliation claim and the FCRA disability discrimination
claim. (Doc. # 25). The Court dismissed the retaliation claim
with prejudice and remanded the FCRA claim to state court
after declining to exercise supplemental jurisdiction over
that claim on April 30, 2019. (Doc. # 31).
subsequently filed this Motion on May 14, 2019, seeking an
award of attorney's fees under 42 U.S.C. § 1988 and
28 U.S.C. § 1927 in the amount of $27, 372.84 and costs
in the amount of $400.00 with interest accruing from the date
of the judgment. (Doc. # 32). Lowe responded on May 28, 2019.
(Doc. # 33). The Motion is ripe for review.
Attorney's Fees under 42 U.S.C. § 1988
Court reviews the evidence in the light most favorable to the
non-prevailing party when determining whether to award
attorney's fees. Johnson v. Florida, 348 F.3d
1334, 1354 (11th Cir. 2003). A court may award attorney's
fees to prevailing defendants for Title VII claims
“upon a finding that the plaintiff's action was
frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978). Courts have extended that criteria to requests
for attorney's fees in cases involving Section 1981 and
FCRA claims. Hamilton v. Sheridan Healthcorp, Inc.,
700 Fed.Appx. 883, 885 n.1 (11th Cir. 2017).
determinations are made on a case-by-case basis and take into
account various factors, including: “(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 held a fullblown trial
on the merits.” Sullivan v. School Bd., 773
F.2d 1182, 1189 (11th Cir. 1985). The Eleventh Circuit has
added a fourth factor: whether a claim is “meritorious
enough to receive careful attention and review.”
Busby v. City of Orlando, 931 F.2d 764, 787 (11th
first three factors are typically met in any case where a
defendant prevails on a dispositive motion and the defendant
does not offer to settle. See Sullivan, 773 F.2d at 1189
(“Cases where findings of ‘frivolity' have
been sustained typically have been decided in the
defendant's favor on a motion for summary
judgment.”). Indeed, the first three factors are met in
this case. The Court dismissed both the Amended
Complaint's associational discrimination claim and the
Second Amended Complaint's Section 1981 retaliation claim
with prejudice for failure to state a claim. Additionally,
there is nothing to suggest that STME offered to settle.
allegations that prove to be legally insufficient are not
necessarily “groundless” or “without
foundation.” Hughes v. Rowe, 449 U.S. 5, 15
(1980). A defendant is not automatically entitled to fees
simply because the defendant prevailed on a dispositive
motion. Ruszala v. Walt Disney World Co., 132
F.Supp.2d 1347, 1351 (M.D. Fla. 2000). The Court must also
consider the fourth factor promulgated in Busby to determine
whether a claim received careful attention and review despite
its dismissal. See Hughes, 449 U.S. at 15 (“Even those
allegations that were properly dismissed for failure to state
a claim deserved and received . . . careful
the Court carefully considered the allegations within
Lowe's three Complaints by hearing oral argument
regarding STME's first motion to dismiss, addressing both
claims on the merits, providing legal analysis for dismissal,
and twice allowing leave to amend. See Allison v.
Parise, No. 8:12-cv-1313-T-17EAJ, 2014 U.S. Dist. LEXIS
60016, at *15-16 (M.D. Fla. Apr. 11, 2014)(explaining that
the court carefully considered claims ...