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Groover v. Prisoner Transportation Services, LLC

United States District Court, S.D. Florida

August 22, 2019




         THIS CAUSE is before the Court on Pro Bono Counsel's Application for Reimbursement of Litigation Expenses, ECF No. [274] (the “Motion). To date, no response to the Motion has been filed and the deadline to do so has passed. For the reasons stated below, the Motion is granted.

         The United States District Court for the Southern District of Florida has set forth a policy for reimbursement of legal expenses in cases handled pro bono (hereafter, the “Assistance with Litigation Expenses Policy”).[1] The Court's website sets forth the Assistance with Litigation Expenses Policy:

General Policy: The Court encourages members of the Federal Bar to represent parties in civil actions who cannot afford legal counsel, and to bear the costs of that representation where possible. Where resources are limited, counsel who undertake pro bono representation at the Court's request may apply for expense reimbursement. Total reimbursement in any case shall not exceed $7, 500 absent exceptional circumstances. All approvals and reimbursements will be based on a funds-available basis. Therefore, there is no guarantee of reimbursement and counsel is urged to use all reasonable means necessary to keep expenses to a minimum.
Reimbursement Process: Reimbursement normally will be made at the conclusion of the case by Motion. A request for reimbursement should be itemized and submitted to the Judge presiding over the case as a Motion. Once approved by the Judge, the payment authorization must be submitted via email to the Clerk of Court at Interim Requests for Reimbursement will be entertained by Motion prior to the conclusion of the case only on demonstrated need. In that circumstance, expenses should be grouped rather than submitted as individual items piecemeal.
Return of Funds. In the event of an award of attorney's fees or costs to pro bono counsel, the Court may order return of any reimbursements from the award. In addition, if any expenses are reimbursed or paid by any source other than the client or the pro bono counsel (for example, paid through settlement), the amount of funds reimbursed under this program will be returned forthwith.

         Plaintiff Jeffrey Groover filed his Complaint pro se and was granted leave to proceed in forma pauperis. ECF Nos. [1] and [4]. Upon the Court referring the case to the District's Volunteer Attorney Program, ECF No. [20], attorney Frank S. Hedin (“Counsel”) agreed to represent Mr. Groover on a pro bono basis and filed a notice of appearance, ECF No. [28]. Counsel seeks reimbursement of $17, 933.43 in expenses relating to his pro bono representation of Mr. Groover.

         Plaintiff Groover filed his action, individually and on behalf of all others similarly situated, against Prisoner Transportation Services, LLC, U.S. Corrections LLC, and John Does 1-100 alleging civil rights violations pursuant to 42 U.S.C. § 1983. In the Amended Complaint, Groover, an inmate at the Butner Low Security Federal Correctional Institution in Butner, North Carolina, alleged that U.S. Corrections, LLC transported him from Butner, North Carolina to Fort Lauderdale, Florida in a windowless transport van lacking sufficient ventilation and air conditioning. Groover claimed that he was deprived of sleep, water, and refuge from the heat. As a result of the excessively hot conditions and lack of adequate ventilation in the van, Groover experienced physical and emotional injuries. Groover claimed that the Defendants knew of the conditions to which he was subjected and failed to take appropriate measures. Groover alleged that numerous other pretrial detainees transported by the Defendants suffered similar inhumane conditions and harm as a result of their transportation practices, violating his and other pretrial detainees' Eighth and Fourteenth Amendment rights. Groover thereafter asked the Court to certify the action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3). The litigation and the record in the case are extensive.

         Counsel argues that exceptional circumstances exist warranting reimbursement of expenses exceeding $7, 500.00. Counsel volunteered over 1, 000 hours of time representing Groover. Counsel took and defended more than 15 depositions, briefed multiple motions with complex legal issues, attended multiple court hearings, traveled regularly to meet with Mr. Groover, and ultimately negotiated a resolution of Groover's claims. Counsel provided excellent and thorough representation in a case that was exceptionally time-consuming. The Court agrees that the nature and scope of the claims in the case and the amount of work performed by Counsel constitute “exceptional circumstances.” Accordingly, reimbursement of costs in excess of $7, 500.00 is warranted.

         Regarding the claimed expenses, Counsel submitted an itemized table of expenses incurred, as required by the Assistance with Litigation Expenses Policy. See ECF No. [274-1]. However, the Assistance with Litigation Expenses Policy provides no guidance regarding what claimed expenses may be reimbursed. The caselaw within this District on motions for reimbursement of pro bono litigation expenses is limited and does not offer a framework for determining what expenses are reimbursable.

         Without the benefit of criteria to determine what constitutes a reimbursable expense, the Court considers the overall purpose of the Assistance with Litigation Expenses Policy. The Assistance with Litigation Expenses Policy does not expressly state its purpose. However, it can easily be surmised that the salient purpose is to assist in the efficient administration of justice and encourage skilled attorneys to volunteer their services to those who are unable to afford them. In return, expenses are reimbursable so as not to be an insurmountable cost that would otherwise discourage competent counsel. The Assistance with Litigation Expenses Policy does caution that counsel are urged to use all reasonable means necessary to keep expenses to a minimum.

         Other districts that have similar programs allowing for reimbursement of pro bono counsel's litigation expenses. In those jurisdictions, courts have recognized that such programs encourage attorneys to volunteer pro bono services by reducing the potential financial burden of taking on such cases. See, e.g., Lewis v. City of Albany Police Dep't, 554 F.Supp.2d 297, 301 (N.D. N.Y. 2008) (“Reimbursement for expenses encourages attorneys to volunteer for the district's pro bono panel by eliminating the possibility that pro bono appointees will incur out-of-pocket losses should the representation conclude unfavorably.”), aff'd, 332 Fed.Appx. 641 (2d Cir. 2009); Gomez v. Hardie, No. 3:13-CV-00161-ST, 2013 WL 5346703, at *1 (D. Or. Sept. 23, 2013) (“the financial burden to pro bono counsel may deter many lawyers from accepting an appointment by the Court [to represent an indigent litigation], especially for sole practitioners or small firms. Therefore, as an inducement to participate in the Pro Bono Program, the Court has authorized reimbursement to pro bono counsel for out-of-pocket expenses in some situations.”); McCaa v. Hamilton, 371 F.Supp.3d 537, 540 (E.D. Wis. 2019) (explaining the shortage of attorneys volunteering to take cases pro bono due to financial costs).

         Those principles apply equally to the Southern District of Florida's Assistance with Litigation Expenses Policy. Therefore, to find guidance as to which expenses are properly reimbursable, the Court looks to policies in other districts within the Eleventh Circuit. The Middle District of Florida, the Northern District of Florida, and the Northern District of Alabama have each established a plan for pro bono representation in civil cases.

         The Northern District of Alabama's “Plan for Pro Bono Counsel for Qualified Unrepresented Parties in Civil Cases” states that “Counsel selected pursuant to this Plan may apply to the Court for reimbursement of reasonable expenses as they are incurred in further of the representation, or at the end of the representation.”[2] The plan's only criterion as to the type of expenses that may be reimbursed is that the expenses must be “reasonable.” The Northern District of Florida has established “The Federal Bench and Bar Fund” and sets forth a non-exhaustive list of uses for expenditures from the fund.[3] Pertaining to pro bono expenses in civil cases, expenditures are permitted for “Court-approved payment or reimbursement of expenses (e.g., for travel, depositions, copies, records) necessarily and reasonably incurred by court appointed attorneys representing indigents in civil cases.” The Middle District of Florida's “Plan for Pro Bono Representation by Appointment in Civil Cases” (the “Middle District's Plan”) provides the most comprehensive and useful framework for determining which claimed expenses are reimbursable.[4] The Middle District's Plan furthers the goal of encouraging attorneys to take on cases on a pro bono basis by reducing the possibility that counsel will incur out-of-pocket expenses should the representation conclude unfavorably. The Middle District Plan provides guidance to counsel to use all reasonable means necessary to keep expenses to a minimum. This Court adopts the standards for determining reimbursable expenses from the Middle District's Plan with slight modifications, as set forth below and noted by way of footnotes.

         The Court will reimburse expenses for the preparation and presentation of the case to the extent they are reasonable, necessary, and otherwise recoverable under this plan. The Court will determine the appropriateness of reimbursements ...

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