Corn v. City of Lauderdale Lakes
| Decision Date | 20 May 1992 |
| Docket Number | No. 84-6034-CIV.,84-6034-CIV. |
| Citation | 794 F. Supp. 364 |
| Parties | Herman CORN, Trustee, Plaintiff, v. CITY OF LAUDERDALE LAKES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Andrew T. Lavin, Romanik & Lavin, P.A., Hollywood, Fla., Rod Tennyson, Rod Tennyson, P.A., West Palm Beach, Fla., for plaintiff.
Michael C. Mattson, Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis & Richards, P.A., Fort Lauderdale, Fla., for defendants.
ORDER AWARDING ATTORNEYS' FEES AND COSTS
Plaintiff, HERMAN CORN, Trustee ("CORN"), sued the CITY OF LAUDERDALE LAKES (the "CITY") and several of its officials for damages under Title 42, United States Code, Section 1983,1 essentially alleging that a CITY ordinance arbitrarily deprived him of a 261-acre parcel without the due process of just compensation. During a four-day non-jury trial held August 12-15, 1991, CORN requested more than $27,000,000.00 in damages for a complete and permanent taking. In its Findings of Fact and Conclusions of Law (DE 208),2 the Court ruled that CORN's constitutional rights had been violated, but awarded only $727,875.02 for a partial and temporary taking. The subsequent Final Judgment (DE 209) expressly reserved jurisdiction to consider attorneys' fees and costs.
On February 3, 1992, CORN filed a Motion for Attorneys' Fees and Costs (the "Motion") (DE 236), supported by a memorandum of law (DE 237) and several affidavits (DE 238-44). The CITY has submitted a Memorandum of Law in Opposition to the Motion (the "Response") (DE 254), attaching an affidavit and deposition transcripts as exhibits. Finally, CORN filed his Reply Memorandum on the Motion (the "Reply") (DE 255). The Court has reviewed and considered the entire record, and applied its own knowledge and experience concerning reasonable and proper fees, in resolving the Motion. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988).
1. Attorneys' Fees
Title 42, United States Code, Section 1988 was enacted in 1976 "to encourage the enforcement of federal law through lawsuits filed by private persons." Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711, 737, 107 S.Ct. 3078, 3093, 97 L.Ed.2d 585 (1987) (Blackmun, J., dissenting). It provides that, in any action brought under Section 1983 of that Title, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C.A. § 1988(b) (West Supp.1992). The provision necessitates three distinct inquiries: (a) whether CORN prevailed, (b) whether the court should exercise its discretion in favor of a fee award, and (c) if so, what fee is reasonable.
A "prevailing" plaintiff succeeds "on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). One who recovers less than all of the damages requested nonetheless "prevails"; the degree of his overall success affects the reasonableness, not the availability, of a fee award. See Texas State Teachers Assoc. v. Garland Indep. School Dist., 489 U.S. 782, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). CORN, who was awarded nearly three-quarters of a million dollars, is clearly a prevailing party.
A successful civil rights plaintiff should recover attorneys' fees, unless special circumstances make such an award unjust. See Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Dowdell v. City of Apopka, 698 F.2d 1181, 1189 (11th Cir. 1983). The CITY cites Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982), for the proposition that, "where the merits of a claim are obviously strong and would be so recognized by local counsel and where the probable damage award is high and would be so recognized by counsel, a district court has discretion to deny an application for counsel fees." (DE 254 at 1). But the CITY does not explain how CORN's claim was obviously strong or the damages clearly substantial; indeed, given the CITY's persistent, unwavering resistance to the claim, any such explanation would ring hollow. Moreover, the court does not find that the case was so strong as to preclude the recovery of prevailing party fees.
In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), the Fifth Circuit Court of Appeals adopted a twelve-factor method, drawn from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106, for determining a reasonable fee under Section 1988. The trial judge should consider:
488 F.2d at 717-19. Johnson was widely followed by other courts, and was cited with approval by Congress when it enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. See H.R.Rep. No. 94-1558, p. 8 (1976); S.Rep. No. 94-1011, p. 6 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5953.
The United States Supreme Court has, however, noted that "the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). This method, known as the "lodestar approach," see Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973), presumptively includes all of the Johnson factors, except, perhaps, the results obtained or a contingency enhancement. See Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9; Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 564-65, 106 S.Ct. 3088, 3097-98, 92 L.Ed.2d 439 (1986) ("Delaware Valley I"). The undersigned will therefore calculate, then adjust, the lodestar.
i. Reasonable Number of Hours
"Excessive, redundant, or otherwise unnecessary" hours should be excluded form the amount claimed. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939. Counsel must exercise the same "billing judgment" in drafting fee applications that they would in preparing client bills. Id.
The CITY first argues that the time devoted by CORN's counsel to prosecuting a separate state court action between 1977 and 1984 is not compensable in this federal action (DE 254 at 4-6). But "there is certainly nothing in § 1988 that limits fee awards to work performed after the complaint is filed in federal court." Webb v. Board of Educ. of Dyer County, 471 U.S. 234, 250, 105 S.Ct. 1923, 1932, 85 L.Ed.2d 233 (1985) (Brennan, J., concurring in part and dissenting in part). The question is whether the state proceeding was "useful and of the type ordinarily necessary to secure the final result" in federal court. Delaware Valley I, 478 U.S. at 561, 106 S.Ct. at 3096 (quoting Webb, 471 U.S. at 243, 105 S.Ct. at 1928).
CORN's pursuit of state remedies was indeed "useful" herein: the undersigned applied the doctrine of collateral estoppel to the state court ruling that CORN had acquired vested rights in the preordinance zoning (DE 208 at 16), relied upon the ruling to find that CORN possessed a constitutionally protected property interest (DE 208 at 21-22), received evidence developed at the state level in summary fashion to expedite the instant trial, and measured damages through the date that the state appellate decision became final (DE 208 at 29). CORN is therefore entitled to compensation for the state proceeding. E.g., Robinson v. Ariyoshi, 703 F.Supp. 1412, 1429 (D. Hawaii 1989).
CORN presents affidavits showing that 419.8 hours of partner time and 30.0 hours of associate time were reasonably expended in the state court action. The CITY disputed CORN's entitlement to fees for this service, but presented no contrary evidence as to the reasonableness of the hours worked. The Court finds that the time charged represents a reasonable number of hours for pursuing the state court action from 1977 to 1984, through the trial and appellate levels.
CORN's counsel expended 880.2 hours of partner time, 792.5 hours of associate time, and 18.2 hours of paralegal/law clerk time in pursuing the federal court action. His experts, Bruce Rogow and Philip Michael Cullen, III, broadly testify that attorney time "was expeditiously used, with little or no duplication of effort in representing the Plaintiff's interests." (DE 241 at ¶ 8; DE 242 at ¶ 11). The CITY's expert, Michael Burke, however, separately analyzes three distinct phases of the litigation: Phase I, from August 1983 through March 1991, which included trial preparation and participation in two appeals to the Eleventh Circuit; Phase II, from March 1991 through August 1991, which included renewed trial preparation and the non-jury trial itself; and Phase III, from August 1991 to the present, which consists wholly of the fee application.
In Mr. Burke's opinion, the 353.6 hours of partner time and 220.9 hours of associate time spent during Phase I were entirely reasonable. There being no dispute, and upon a full review of the record, the Court approves these figures.
Mr. Burke does not question the 130 partner hours and 76 associate hours spent on drafting pleadings, conducting discovery, or...
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