United States District Court, S.D. Florida
OPINION ORDER ADOPTING IN PART THE MAGISTRATE'S
REPORT AND RECOMMENDATIONS
N. Scola, Jr. United States District Judge
matter was referred to United States Magistrate Judge Edwin
G. Torres for a report and recommendation on the
Defendants' motions for attorney's fees and costs.
(ECF Nos. 95, 127.) On September 25, 2018, Judge Torres
issued two orders granting motions to determine entitlement
to attorney's fees filed by the Homestead
Defendants and the Monroe Defendants. (the
“Orders, ” ECF Nos. 118, 119.) The Orders found
that the Homestead Defendants and Monroe Defendants were
entitled to an award of attorney's fees incurred in
defending this suit to be paid by the Plaintiffs James Eric
McDonough and Vanessa McDonough (the
“McDonoughs”) under 42 U.S.C. § 1988, and
the McDonoughs' former counsel Gary Ostrow and his law
firm Gary Ostrow P.A. (collectively “Ostrow”)
under 28 U.S.C. § 1927. For the amount of fees, Judge
Torres recommended through two separate reports that the
Homestead Defendants recover $20, 863.78 and the Monroe
Defendants recover $17, 928.60. (the “R&Rs, ”
ECF Nos. 135, 136.) The McDonoughs and Ostrow timely objected
to the Orders and R&Rs. (ECF Nos. 137, 138, 139.) After
conducting a de novo review of the entire case file;
and reviewing the parties' submissions on the sanctions
issue, the Orders and R&Rs, the parties' objections
and responses to same, and the applicable law; the Court
affirms and adopts in part the Orders and R&Rs (ECF Nos.
118, 119, 135, 136), as set forth below.
Court does not adopt the portions of the Orders and R&Rs
recommending the entry of sanctions against the McDonoughs
under 42 U.S.C. § 1988. Prevailing party fees are only
available to a defendant under that statute “upon a
finding that the plaintiff's action was frivolous,
unreasonable, or without foundation.” Fox v.
Vice, 563 U.S. 826, 833 (2011) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978)). This case was dismissed on shotgun pleading
grounds because Ostrow refiled a “tangled mess
comprising 94 pages of incoherent and largely irrelevant
conclusory allegations, ” after Judge Williams
previously notified Ostrow of similar concerns in an earlier
dismissal order in a related case. (ECF No. 80.) Because the
dismissal was on shotgun pleading grounds, the Court's
prior orders do not provide a basis to find this case
“frivolous, unreasonable or without foundation”
on the merits. Fox, 563 U.S. at 833. And it is not
appropriate to undertake such a merits inquiry for the first
time at the sanctions stage, particularly where the earlier
dismissal order was already affirmed on appeal. See
McDonough v. City of Homestead, 771 Fed.Appx. 952 (11th
Cir. 2019); see also Hensely v. Eckerhart, 461 U.S.
424, 437 (1983) ("A request for attorney's fees
should not result in a second major litigation."). None
of this is to say that the case ever had merit, but rather
that it was poorly litigated and dismissed for that reason.
That was not the McDonoughs' fault and they will not be
sanctioned for their lawyer's incompetence. The Monroe
Defendants' and Homestead Defendants' requests for
attorneys' fees against the McDonoughs under 42 U.S.C.
§ 1988 are denied.
Court agrees with Judge Torres that the Homestead Defendants
and Monroe Defendants are entitled to recover attorney's
fees against Ostrow under 28 U.S.C. § 1927. The Court
further agrees with Judge Torres as to the recommended amount
of fees to be recovered by each of those defendants. As such,
the Orders and R&Rs as to the Homestead Defendants'
and Monroe Defendants' entitlement to section 1927
sanctions, and the amount of those sanctions, to be recovered
against Ostrow are affirmed and adopted in full. Ostrow's
objections (ECF No. 137) are overruled for the reasons stated
in the Orders and R&Rs. Cf. Jackson v. Bank of
America, N.A., 898 F.3d 1348, 1359-60 (11th Cir. 2018)
(ordering counsel to show cause why Rule 38 sanctions should
not be imposed for appealing order dismissing shotgun
complaint); Cramer v. State of Fla., 117 F.3d 1258,
1265 (11th Cir. 1997) (same).
the Orders and R&Rs (ECF Nos. 118, 119, 135, 136) are
affirmed and adopted in part, and the Homestead
Defendants' and Monroe Defendants' motions for
attorneys' fees (ECF Nos. 124, 125) are granted in part
and denied in part. The Court awards the Homestead Defendants
$20, 863.78 in attorneys' fees to be paid by Ostrow. The
Monroe Defendants are awarded $17, 928.60 in attorneys'
fees to be paid by Ostrow.
Clerk is directed to close this case. All pending motions are
denied as moot.
 The “Homestead Defendants”
are the City of Homestead, Jeff Porter, George Gretsas,
Alexander Rolle, Alejandro Murguido, Thomas Surman, John
Buchanan, D. Snyder, M. Pasquarella, L. Zavaleta, A. Pearce,
J. Cruz, Veronica Blanco, Mario Arzuaga, and Thomas
 The “Monroe Defendants”
are Monroe County, Rick Ramsay, Luis Gomez, and Chad