Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Prison Legal News v. Inch

United States District Court, N.D. Florida, Tallahassee Division

October 22, 2019

PRISON LEGAL NEWS, Plaintiff,
v.
MARK S. INCH, in his official capacity as Secretary of the Florida Department of Corrections, Defendant. Name Firm Years of Legal Experience Hourly Kate District Court Lodestar Appeal Lodestar Total Lodestar

          ORDER ON PLAINTIFF'S MOTION TO DETERMINE THE AMOUNT OF ATTORNEYS' FEES AND EXPENSES

          MARK E. WALKER, CHIEF UNITED STATES DISTRICT JUDGE

         This Court previously determined Plaintiff is entitled to fees under 42 U.S.C. § 1988 as the prevailing party in this case. ECF No. 322. Plaintiff now moves for a determination of the amount of attorneys' fees and expenses to which it is entitled. ECF No. 329. Plaintiff seeks a total award of $1, 244, 753.41 in fees and $33, 623.57 in expenses. ECF No. 356 at 26.[1] This Court has considered, without hearing, Plaintiff's motion, ECF No. 329, Defendant's response, ECF No. 338, and Plaintiff's reply, ECF No. 356, as well as all related exhibits. For the reasons set out below, it is ORDERED that Plaintiff's motion, ECF No. 329, is GRANTED IN PART and Plaintiff is awarded $1, 148, 210.89 in attorneys' fees and $33, 448.57 in expenses.

         I

         Plaintiff initiated this lawsuit on November 17, 2011 in the Southern District of Florida. ECF No. 1. Plaintiff alleged the Florida Department of Corrections (“FDC”) censored its publication, Prison Legal News, because the magazine contained advertisements for certain services. Plaintiff also alleged that FDC failed to notify Plaintiff of each impoundment of the magazine. Plaintiff asserted a First Amendment claim based on the censorship and a Due Process claim for the failure to provide notice or an opportunity to appeal the censorship decision. Plaintiff subsequently filed an amended complaint. ECF No. 14.

         Defendant moved to transfer venue to the Northern District of Florida, Tallahassee Division pursuant to 28 U.S.C. § 1404(a). ECF No. 18. When that motion was granted, the case was then mistakenly assigned to the Pensacola Division. See ECF No. 57 at 3. The case was then transferred to the Tallahassee Division. ECF No. 57.

         The parties zealously litigated this case at every stage before this Court, culminating in a four-day bench trial in January 2015. ECF Nos. 235-37. After post-trial briefing, this Court issued an order on Plaintiff's claims in August 2015, ECF No. 251, followed by an amended order on October 5, 2015. ECF No. 279. This Court ruled against Plaintiff on its First Amendment Claim but ruled in Plaintiff's favor on the Due Process claim. Id.

         Defendant appealed this Court's judgment that Defendant violated Plaintiff's Due Process rights and Plaintiff cross-appealed this Court's judgment that Defendant did not violate Plaintiff's First Amendment rights. The Eleventh Circuit affirmed in all respects. Prison Legal News v. Sec'y, Fla. Dep't of Corr., 890 F.3d 954 (11th Cir. 2018). The Supreme Court denied review. ECF No. 314.

         Plaintiff moved for attorneys' fees under 42 U.S.C. § 1988 and costs under Federal Rule of Civil Procedure 54(d)(1). ECF No. 310. This Court determined that Plaintiff is a prevailing party within the meaning of Section 1988 because Plaintiff succeeded on its Due Process claim and was therefore entitled to fees under Section 1988 and costs under Rule 54(d)(1). ECF No. 322. The parties were ordered to brief the issue of the amount of fees this Court should award. ECF No. 322.[2]

         II

         This Court will first address the appropriate amount of attorneys' fees to be awarded to Plaintiff. The Eleventh Circuit has adopted the lodestar method to determine the reasonableness of an award of attorneys' fees. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). To determine a lodestar amount, a court must ascertain a reasonable hourly rate and multiply it by the number of hours an attorney reasonably expended on the litigation. Id. Where the time or fees claimed seem excessive, or there is a lack of support for the fees claimed, “the court may make the award on its own experience.” Id. at 1303. The burden of establishing that the fee request is reasonable rests with the fee applicant, who must “submit evidence regarding the number of hours expended and the hourly rate claimed.” U.S. ex rel. Educ. Career Dev., Inc. v. Cent. Fla. Reg'l Workforce Dev. Bd., Inc., No. 6:04-CV-93, 2007 WL 1601747, at *3 (M.D. Fla. June 1, 2007). Evidence in support of the fee applicant's request requires “sufficient particularity so that the district court can assess the time claimed for each activity.” Norman, 836 F.2d at 1303.

         This Court begins with an analysis of the hourly rate sought by Plaintiff's attorneys. This Court then considered whether Plaintiff's submissions demonstrate that the number of hours claimed are reasonable. Finally, this Court considers whether the results in the case warrant adjustment of the lodestar figure.

         A. Reasonable Hourly Rates

         A “reasonable hourly rate” is “the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Maner v. Linkan LLC, 602 Fed.Appx. 489, 493 (11th Cir. 2015) (unpublished) (quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). “The party seeking attorney's fees bears the burden of establishing that the requested hourly rate is in line with prevailing market rates.” Id. In establishing a reasonable hourly rate, the court may “rely on its own expertise and where appropriate” and may also consider certain case-specific factors.[3] Id.

         The parties disagree over which legal market-Tallahassee or Miami-is the relevant legal market for purposes of this analysis.

         Plaintiff argues that it should be compensated for the market rate associated with Miami because that is where the case was originally filed, and venue was transferred for the convenience of the parties and witnesses (not because venue was improper). Defendant argues that Tallahassee is the appropriate market because venue was transferred to the Northern District and Plaintiff could have hired competent local attorneys.

         “The general rule is that the ‘relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed.' ” ACLU of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quoting Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994)). In Cullens, the case was transferred from Macon, Georgia, to Atlanta. Cullens, 29 F.3d at 1494. The plaintiffs prevailed on certain claims and sought an award of attorneys' fees. Id. at 1490. The plaintiffs contended the district court erred in using Macon (rather than Atlanta) as the relevant market for the hourly rate to be used in computation of the lodestar figure. Id. at 1494. The Eleventh Circuit held that the proper attorneys' fees market was Macon-where the case was initially filed-and not Atlanta. Id.

         In Tiara Condo. Ass'n, Inc. v. Marsh USA, Inc., 697 F.Supp.2d 1349 (S.D. Fla. 2010), the case was filed in the Southern District of New York but was transferred to the Southern District of Florida five months later upon the parties' stipulation. Tiara Condo, Ass'n, Inc., 697 F.Supp.2d at 1356 n.2, 1362 (adopting Magistrate's Report and Recommendation). The defendant made an offer of judgment, which the plaintiff rejected. Id. at 1352. The court subsequently granted the defendant's motion to dismiss, and the defendant sought attorneys' fees. Id. The magistrate judge recommended an award of attorneys' fees based upon New York market rates, and the defendant objected. Id. at 1353. The district court, citing ACLU of Ga., agreed with the magistrate judge's finding and held that New York rates properly applied because the case was originally filed in New York. Id.

         This Court concludes Miami is the relevant legal market for purposes of determining the reasonable hourly rate for Plaintiff's attorneys. The caselaw distinguishes between cases where, as here, the case is transferred for the convenience of the parties and witnesses under § 1404(a), and cases where the case is transferred because of improper venue pursuant to § 1406(a). See Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983). Where the case is transferred pursuant to § 1404(a), counsel is entitled to fees at the rate prevailing in his home district, “at least in the absence of any indication that the suit was filed in the high-rate district with little prospect of litigation there but in the hope of securing a high fee.” Id. In contrast, if a suit is transferred because of improper venue, the rates prevailing in the forum district should normally apply to avoid attorneys having “an incentive to file in a high-rate district in the hope of obtaining a high fee, even though the case must be litigated elsewhere.” Id.; accord Strickland v. Truckers Express, Inc., No. CV 95-62-M-JCL, 2007 WL 496368, at *7-8 (D. Mont. Feb. 12, 2007) (applying market rate in Birmingham, Alabama after case was transferred to Montana on the basis of § 1404(a) because “under those circumstances [transfer based on forum non conveniens] the Plaintiffs should not be penalized by a reduction” to their counsel's rates). Because this case was transferred for the parties' and witnesses' convenience, see ECF No. 46, this Court will utilize the prevailing market rate in Miami in determining the reasonable market rate for Plaintiff's attorneys.

         Plaintiff seeks the following hourly rates for its attorneys, law clerks, and paralegals:[4]

Name
Firm
Years of Legal Experience
Hourly Kate

Paul Clement

Bancroft

27

$900

Randall C. Berg, Jr.

Ml

41

$825

Randall Marshall

ACLU

37

$700

Lance Weber

HRDC

22

$560

Benjamin Stevenson

ACLU

17

$525

Michael McGinley

Bancroft

10

$500

Dan Marshall

HRDC

17

$475

Sabarish Neelakanta

HRDC

13

$425

Joshua Glickman

FJI

12

$400

Shawn Heller

FJI

12

S400

Dante P. Trevisani

FJI

10

$350

Alissa Hull

HRDC

9

$335

Robert Jack

HRDC

9

$335

Monique Roberts

HRDC

7

$295

Masimba Mutamba

HRDC

7

$295

Stephanie Moore Throckmorton

FJI

7

$280

Erica Selig

1.11

7

$280

Chelsea Lewis

FJI

5

$250

Law Clerks

$175

Paralegals

$160

         Plaintiff submitted an affidavit from its attorneys' fee expert, William K. Hill. ECF No. 329-1. Mr. Hill's affidavit attaches each attorney's resume and opines that, based on his expertise and review of the resumes and the case, the hourly rates sought by Plaintiff are reasonable.

         Defendant's attorneys' fee expert, J. Steven Carter, opines that this case “was not overly complex or complicated and did not appear to be extraordinary or difficult to litigate.” ECF No. 338-1 ¶ 12. Based on his review of Plaintiff's attorneys' resumes, the nature of the case, and his expertise, Mr. Carter claims that the rates for Plaintiff's attorneys should be significantly reduced. See ECF No. 338-1 ¶ 18.

         This Court finds Plaintiff's proposed rates to be reasonable. First, this Court takes into consideration Mr. Clement and Mr. Berg's excellent reputations and abilities in determining a reasonable fee for their legal services. See Maner, 602 Fed.Appx. at 492. Second, caselaw from the Southern District of Florida generally supports Plaintiff's proposed rates. See Order at 7-8, Spadaro v. City of Miramar, No. 11-CV-61607 (S.D. Fla. Feb. 14, 2014), ECF No. 541 (finding $600/hour was reasonable rate for civil rights attorney with 32 years' experience); All Web Leads, Inc. v. D'Amico, No. 18-cv-80571, 2019 WL 2051970, at *2 (S.D. Fla. May 2, 2019) ($525/hour reasonable for co-managing partner; $400/hour reasonable for 7-year associate); TYR Tactical, LLC v. Productive Prod. Enter., LLC, No. 15-CIV-61741, 2018 WL 3110799, at *8-10 (S.D. Fla. April 11, 2018) (in breach of contract case determined at summary judgment, finding $500/hour for senior partners, $450- 375/hour for junior partners, $275-225 for associates, and $150 for paralegals to be reasonable rates); Carruthers v. Israel, 274 F.Supp.3d 1345, 1354 (S.D. Fla. 2017) ($160/hour reasonable rate for law clerks in civil rights case). Third, based on this Court's own knowledge and experience of the hourly rates charged by attorneys throughout the state of Florida, the hourly rates sought by Plaintiff are reasonable.[5]See Norman, 836 F.2d at 1303 (“The court . . . is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees . . . .”) (quoting Campbell v. Green, 112 F.2d 143 (5th Cir. 1940)). Finally, this Court finds Plaintiff's expert's opinion that these hourly rates are reasonable to be credible and persuasive.[6]

         B. Numbers of Hours Reasonably Expended

         The next step in the computation of the lodestar is a determination of reasonable hours expended on the litigation. A fee applicant must set out the general subject matter of the time expended by the attorney “with sufficient particularity so that the court can assess the time claimed for each activity.” Norman, 836 F.2d at 1303. Excessive, redundant, or otherwise unnecessary hours should be excluded from the amount claimed. Id. at 1301. A fee applicant must exercise billing judgment by excluding “excessive, redundant, or otherwise unnecessary [hours].” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Where a fee applicant does not exercise billing judgment, “courts are obligated to do it for them.” ACLU of Ga., 168 F.3d at 428. When a request for attorneys' fees is unreasonably high, the court “may conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut, ” but it cannot do both. Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350-51 (11th Cir. 2008).[7] The Eleventh Circuit has “recognized that in cases ‘where fee documentation is voluminous,' it will not be feasible to require a court to ‘engage in such a precise [hour-by-hour] review.' ” Villano v. City of Boynton Beach, 254 F.3d 1302, 1311(11th Cir. 2001) (quoting Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994)) (finding 569.3 hours to be sufficiently voluminous that no hour-by-hour analysis was required). Accordingly, this Court will address each of Defendant's specific objections, performing an hour-by-hour analysis where “feasible” and an across-the-board cut where appropriate.

         Plaintiff's attorneys expended 4, 064.44 hours litigating this case. This total is comprised of 3, 414.53 hours associated with proceedings in this Court, 584.71 hours associated with the appeal, and 65.2 hours expended in litigating the appropriate amount of Plaintiff's attorneys' fee award. See ECF No. 329-4 (District Court Time Records); ECF No. 329-5 (Eleventh Circuit Time Records); ECF No. 356-2 (hours expended litigating amount of attorneys' fee award). Multiplied by these attorneys' reasonable hourly rates, this yields a lodestar figure of $1, 758, 253.88, comprising $1, 462, 534.89[8] for the proceedings before this Court and $295, 718.99[9] for the appeal.

         Plaintiff argues that the number of hours billed by its attorneys in this matter are reasonable in light of the complexity of the case and considering Defendant's aggressive litigation tactics. Plaintiff represents that its attorneys have avoided engaging in excessive, unnecessary, or duplicative tasks, but nonetheless recognizes that a “small percentage reduction is warranted . . . as a reasonable exercise of billing judgment.” ECF No. 329 at 21. Plaintiff proposes that this percentage reduction be incorporated into the reduction for lack of success on its First Amendment claim. Id.

         Defendant raises numerous specific objections to certain billing entries submitted by Plaintiff. See ECF No. 338 at 18-30. In many instances, multiple objections are asserted for a single line item.[10]

         After a careful review of the specific line items to which Defendant raised an objection, this Court will make the following reductions in calculating the lodestar figure.[11]

         i. Litigation Against Other Defendants

         Defendant objects to 380.27 hours, totaling $157, 722.34 in fees, associated with litigation against other defendants (the “settling defendants”) before this Court. ECF No. 338 at 18; see also ECF No. 338-2. This Court dismissed the settling defendants after they joined Plaintiff in filing a stipulation of dismissal due to settlement. See ECF Nos. 116-18. The joint stipulation provided that Plaintiff and the settling defendants were “to bear [their] own attorneys' fees and costs.” ECF No. 116.

         Defendant is not required “to compensate a plaintiff for attorney hours devoted to the case against other defendants who settle or who are found not to be liable.” Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d Cir. 1978). However, “hours chargeable to the claims against defendants who are found not liable are chargeable to defendants against whom plaintiff prevailed if such hours also were fairly devoted to the prosecution of the claims against the defendants over whom plaintiff prevailed.” Strickland v. Alexander, No. 1:12-CV-02735, 2016 WL 690894, at *5 (N.D.Ga. Jan. 12, 2016) (quoting Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990)).

         As a threshold matter, this Court does not find that the settling defendants' stipulation with Plaintiff precludes Plaintiff from seeking fees it would otherwise be entitled to seek from Defendant. The language of the settlement agreement expresses a clear intention between the settling parties to cover all fees and costs based on the claims between the settling parties. There is no basis for this Court to conclude that the settlement precludes Plaintiff from recovering the fees and costs of pursuing its claims against Defendant.

         Second, as discussed in more detail below, infra Section I.C., Plaintiff's claims against the settling defendants and Defendant were based on exactly the same facts (i.e., the censorship of Plaintiff's publication and the failure to provide notice that the censorship occurred) and the exact same legal theory (i.e., that the censorship violated Plaintiff's First Amendment rights and the failure to provide notice violated Plaintiff's Due Process rights). Thus, the hours devoted to litigating against the settling defendants were also “fairly devoted to prosecuting [Plaintiff's] claims against [Defendant].” See Strickland, 2016 WL 690894, at *6 (including time expended in litigating against other defendants in calculating plaintiff's fee award). Moreover, as Plaintiff points out in its reply, many of the billing entries to which Defendant objects on this basis involved motions or discovery not solely devoted to the settling defendants. See ECF No. 356 at 10-11; see, e.g., ECF No. 338-2 at lines 424, 959, 1010, 1032, 1033, 1282, 1288, 1292, 1293, 1366, 1412, 1451, 1452, 1474, 1516.

         To the extent some small number of billing entries can be ascribed solely to the settling defendants, a minimal percentage deduction will be factored into the overall percentage reduction for lack of success, which is described below. See Loranger, 10 F.3d at 783 (“[T]he district court need not engage in an hour-by-hour analysis. Rather, once the district court determines how many hours were actually devoted to the conduct of the federal litigation, it may then reduce that figure in gross if a review of the . . . fee request warrants such a reduction.”).

         ii. Press Release Work

         Defendant objects to Plaintiff's requested fees associated with preparation of press releases totaling 5.43 hours, equaling $2, 802.20 in fees for proceedings before this Court and 1.90 hours, equaling $1, 115.00 in fees for the appeal. ECF No. 338 at 18-19; see ECF No. 338-3; ECF No. 338-4. Plaintiff argues that because it “is an organization that fights censorship through public education and advocacy, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.