United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on
defendant's Renewed Motion for Attorneys' Fees
(Doc. #78) filed on December 6, 2019. Plaintiff filed a
Memorandum in Opposition (Doc. #82) on December 30, 2019.
initiated the case on September 29, 2017, in the Tampa
Division of the Middle District of Florida. An Amended
Complaint (Doc. #4) was filed alleging whistleblower
retaliation by a public employee against the Sheriff in his
official capacity in violation of Fla. Stat. § 112.3187
(Count I) and First Amendment Retaliation against the Sheriff
in his individual capacity (Count II) and his official
capacity (Count III) by and through 42 U.S.C. § 1983.
Defendants filed an Answer and Affirmative Defenses (Doc.
#24) on January 12, 2018. On February 13, 2018, the case was
transferred to the Fort Myers Division. (Doc. #29.) On
October 12, 2018, defendant, in his official and individual
capacities, moved for summary judgment. After permitting
additional briefing, on January 9, 2019, the Court issued an
Opinion and Order (Doc. #59) granting summary judgment in
favor of defendant and against plaintiff on all counts.
Judgment (Doc. #60) was issued on January 10, 2019. Plaintiff
appealed, and on October 24, 2019, the Eleventh Circuit
affirmed. (Doc. #75.)
seeks attorney fees pursuant to Fed.R.Civ.P. 54, Fla. R. Civ.
P. 1.442, and Fla. Stat. 768.79. Defendant states that
plaintiff was served with a proposal for settlement on
October 2, 2018, in the amount of $50, 001.00, which was not
accepted by plaintiff. (Doc. #78, ¶¶ 2-3.)
Defendant's written Proposal for Settlement to Plaintiff
(Doc. #63-1) provided for a mutual general release and
confidentiality provision, and an agreement to not seek
reemployment, in exchange for a monetary settlement inclusive
of attorneys' fees and costs, but no punitive damages.
circuit has found § 768.79 to be substantive law for
Erie purposes.”. Jones v. United Space
All., L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007).
Where jurisdiction is based on the presence of a federal
question, as in this case, and the Court maintains
supplemental jurisdiction over a state claim, Fla. Stat.
§ 768.79 only applies to the state law claim. Design
Pallets, Inc. v. Gray Robinson, P.A., 583 F.Supp.2d
1282, 1287 (M.D. Fla. 2008). Only Count I was brought under
though only Count I is a state law-based claim, all three
claims were premised on the same set of facts and Count I was
analyzed under the same standard used in Title VII
retaliation claims. (Doc. #59, p. 16 n.9.) Counts II and III
were both brought under § 1983, under which “[a]
prevailing defendant may recover an attorney's fee only
where the suit was vexatious, frivolous, or brought to harass
or embarrass the defendant.” Hensley v.
Eckerhart, 461 U.S. 424, 429 n.2 (1983) (citations
omitted). Florida courts have determined that “because
section 1988 allows the award of attorney's fees to
prevailing defendants in a much more limited context than
does section 768.79(1), section 1988 preempts section
768.79(1).” Moran v. City of Lakeland, 694
So.2d 886, 887 (Fla. 2d DCA 1997). “Thus, [ ] Florida
law prevents awards of attorneys' fees, even after an
offer of judgment, in state and federal civil rights cases
absent a showing of frivolity.” Alansari v. Tropic
Star Seafood Inc., 395 Fed.Appx. 629, 632 (11th Cir.
Court found that plaintiff offered sufficient evidence to
create a genuine issue of material fact as to the causation
element but that defendant had articulated a legitimate,
non-retaliatory reason for plaintiff's dismissal and
plaintiff had failed to show that the reason was pretextual.
(Doc. #59, pp. 17, 22, 26.) There was nothing to indicate
that the allegations in the Amended Complaint were vexatious,
frivolous, or brought to harass or embarrass defendant. The
motion for attorney's fees will be denied. As a result,
the Court need not address plaintiff's argument that the
inclusion of a prayer for equitable relief forecloses
application of the offer of judgment statute.
it is hereby
Renewed Motion for Attorneys' Fees (Doc. #78) is
 The Court will refer to defendant as a
singular party, however Sheriff Whidden filed the motion in
his official capacity as Sheriff of Hendry County, Florida,