Dowdell v. City of Apopka, Fla.
| Citation | 521 F. Supp. 297 |
| Decision Date | 27 August 1981 |
| Docket Number | No. 78-47-Civ-Oc.,78-47-Civ-Oc. |
| Parties | Faithy DOWDELL, Bobby Ann Barnes, Willie L. Nelson (Freeman), Eddie Lee Wynn, Lafayette Dowdell, Johnnie Bridges, Freddie L. Howard, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF APOPKA, FLORIDA; John H. Land, Mayor of the City of Apopka, Florida; Alonzo Williams, Jr., Richard Mark, Bill Aerosmith, and Jeanette Robinson, Council members of the City of Apopka, Florida, their successors and agents, in their official capacity, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
David M. Lipman, Miami, Fla., Rosalind Gray, Washington, D. C., for plaintiffs.
Johnie A. McLeod, Apopka, Fla., for defendants.
OPINION
This cause came on for hearing July 27, 1981, to consider the motion of plaintiffs for an award of attorneys' fees and costs.1
Plaintiffs, a class of black residents of the City of Apopka, Florida, commenced this action against the above-named defendants seeking injunctive relief to remedy the effects of alleged discrimination in the provision of municipal services to inhabitants of the City of Apopka. The claims were grounded in the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the State and Local Fiscal Assistance Act of 1972 (hereinafter the "Revenue Sharing Act"), 31 U.S.C. § 1221 et seq.
Following a trial on the merits, the Court entered its judgment of April 22, 1981. 511 F.Supp. 1375. Plaintiffs were afforded substantial relief as to their claims pertaining to street paving and maintenance, storm water drainage facilities and water distribution. The defendants were enjoined from providing municipal services in a racially-discriminatory manner. Defendants were further enjoined from initiating any new municipal services or constructing any new municipal service facilities in the white residential community until such time as the street paving and maintenance, storm water drainage facilities, and water distribution system in the black community reached a par with similar services and facilities currently available in the white community. Finally, pursuant to 31 U.S.C. § 1244(b) of the Revenue Sharing Act, the Court impounded all federal revenue sharing funds then under the control of the City of Apopka and all such funds to be received in the future. The Court directed that federal revenue sharing funds could be used only for capital expenditures to improve the quantity and quality of municipal services in the black community.
The Court found no statutory or constitutional violations with regard to the plaintiffs' claims relating to the provision of sewage facilities and park and recreational facilities. Consequently, these claims were dismissed with prejudice.
Defendants filed their notice of appeal of the Court's judgment on July 9, 1981, following a denial of their motion to amend the Court's findings of fact and conclusions of law. Although further proceedings will be necessary to consider the precise details of the remedial action to be taken by defendants, it is clear that we have progressed to the point where it is proper to consider the question of attorneys' fees and costs.
The Court will proceed to consider each of the factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The law of this circuit is that, although an award of attorney's fees is within the discretion of the trial court, the trial court is required to make express findings in the record as to the basis for the award and the particular factors in Johnson that the court relied upon. Gay v. Board of Trustees of San Jacinto College, 608 F.2d 127, 128 (5th Cir. 1979); Morrow v. Dillard, 580 F.2d 1284, 1301 (5th Cir. 1978); Fain v. Caddo Parish Police Jury, 564 F.2d 707, 709 (5th Cir. 1977).
(1) The Time and Labor Required.
(5) The Customary Fee.
The Court deems it appropriate to consider these two factors together in order to derive a "lodestar" figure which can then be adjusted through application of the other factors set forth in Johnson. It is apparent that, although not expressly stated, most courts within this circuit have employed the lodestar formula in calculating attorney's fees awards. A. Miller, Attorneys' Fees in Class Actions, A Report to the Federal Judicial Center, at 122 (1980). Even the Fifth Circuit Court of Appeals has tacitly approved the method of deriving an initial lodestar figure and then adjusting it in light of the remaining Johnson factors. See, e. g., Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977) ()2
The lodestar method of calculating attorney's fees awards in class actions was first employed by the Third Circuit Court of Appeals in Lindy Brothers v. American Radiators & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I).3 This approach placed primary emphasis on the actual hours expended by the attorney on the case. It constituted a marked departure from prior decisions which focused upon the amount of recovery on behalf of the class and based attorney's fees on a percentage of that recovery.
In Lindy I, the Third Circuit held that the most important factors in calculating fee awards were the number of hours worked by the attorneys and the reasonable hourly rate that should be recovered for their services.4 Multiplying the number of hours by the reasonable hourly rate provides the court with the lodestar, the foundational figure upon which to base the attorney's fees award. The Third Circuit then identified two factors that the court should consider in adjusting the lodestar figure either up or down. First, the court should consider the contingent nature of the case, that is to say, the risk incurred by the attorney in accepting the case. Second, the court should consider the quality of the attorney's work product and performance. While recognizing that the lodestar concept has never been expressly adopted by the Fifth Circuit Court of Appeals, this Court is of the opinion that it is a sensible approach, one that can be easily incorporated into a consideration of the 12 factors enumerated in Johnson.
Turning then to the first factor, the time and labor required, the Court has no doubt that counsel and co-counsel for plaintiffs expended substantial amounts of time and labor in preparing for and prosecuting the plaintiffs' case. Indeed, the 10 full volumes of court documents filed by the parties attest to this fact. Defendants have fiercely contested this litigation at every step of the proceedings. Defendants' opposition to the pre-trial discovery efforts on plaintiffs' behalf necessitated frequent intervention by the Court.
The affidavits filed by counsel and co-counsel for plaintiffs, Mr. David M. Lipman and Ms. Rosalind Gray, respectively, set forth the following numbers of hours spent in preparing for and prosecuting this case:
Attorney Total Hours
David M. Lipman
a) In-court 72.0
b) Out-of-court 1140.45 1212.45
Rosalind Gray 234.3
The Court finds these numbers to be reasonable in light of the complex and sweeping nature of the claims that were at issue. The sworn affidavits of Lipman and Gray specify relatively precise amounts of time, accompanied by the date on which the work was performed and the type of work involved.
Defendants' contention that plaintiffs are not entitled to attorneys' fees for hours spent on matters upon which plaintiffs were not the prevailing parties must fail. Plaintiffs obtained relief as to five of the seven areas of municipal services upon which the complaint was founded. Settlement was reached prior to trial as to the claims involving street lights and fire protection. There can be no doubt that plaintiffs who obtain relief through settlement are nevertheless prevailing parties within the meaning of 42 U.S.C. § 1988. Gagne v. Maher, 448 U.S. 122, 129-131, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); Collins v. Thomas, (5 Cir., 1981) 649 F.2d 1203.
Of the five claims that went to trial, plaintiffs prevailed on three (streets, water distribution, storm water drainage). Plaintiffs lost on their claims relating to sewerage and recreational facilities. Nevertheless, plaintiffs' attorneys are entitled to compensation "for all time reasonably expended on a matter." S.Rep.No.94-1011, 94th Cong., 2d Sess. 6, reprinted in 1976 U.S.Code Cong. and Ad.News 5908, 5913. Only if the issues upon which the plaintiffs lost were clearly meritless should a court automatically preclude the hours spent on such issues. Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981) (en banc); see Stanford Daily v. Zurcher, 64 F.R.D. 680, 683 (N.D.Cal.1974).
In Jones v. Diamond, supra, the Fifth Circuit, sitting en banc, considered this question, stating:
In fixing the fee, the district court should be mindful that in complex civil rights litigation ... issues are overlapping and intertwined. In order to represent their clients adequately, attorneys must explore fully every aspect of the case, develop all of the evidence and present it to the court. Time spent pursuing unsuccessful claims that were clearly without merit should be excluded. However, the mere fact that the litigants did not succeed in obtaining a judgment on all of the claims asserted does not mean that time spent pursuing these claims should automatically be disallowed. citing cases Instead the court must consider the relationship of the claims that resulted in judgment with the claims that were rejected and the contribution if any, made to success by the investigation and prosecution of the entire case. Id. at 1382.
In the instant case, plaintiffs' claims, although distinct in the...
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