Webster Greenthumb Co. v. Fulton County, Ga.

Decision Date18 September 2000
Docket NumberNo. Civ.A. 1:96CV2399-TWT.,Civ.A. 1:96CV2399-TWT.
Citation112 F.Supp.2d 1339
CourtU.S. District Court — Northern District of Georgia

Richmond Mason Barge, Parks Chesin Walbert & Miller, Atlanta, GA, Patrick W. McKee, Office of Patrick W. McKee, Atlanta, GA, for Daniel Webster, plaintiff.

Dorothy Yates Kirkley, Elizabeth Penn Payne, Kirkley & Payne, Atlanta, GA, for Fulton County, Georgia, defendant.

J. Scott Carr, Keith Mark Wiener, Dorothy Yates Kirkley, Elizabeth Penn Payne, for Michael Cooper, individually and in his official capacity as Director of Contract Compliance, defendant.


THRASH, District Judge.

This is a race and sex discrimination action brought pursuant to 42 U.S.C. §§ 1981 and 1983 and the Equal Protection Clause of the Fourteenth Amendment. It is before the Court on Plaintiff's Motion for Attorneys' Fees or, in the Alternative, Plaintiff's Motion for Interim Award of Attorneys' Fees [Docs. 182 & 191], Plaintiff's Bills of Costs [Docs. 185 & 309], and Plaintiff's Supplemental Motion for Attorneys' Fees [Doc. 312]. Plaintiff seeks $1,544,222.10 in fees plus costs. For the reasons set forth below, Plaintiff's motions for attorneys' fees are granted, as modified by the Court, in the amount of $1,089,610.45, and the Bills of Costs already taxed by the Court to Defendant is affirmed, as modified, in the amount of $15,997.64.


Plaintiff Webster Green Thumb Company ("Webster Green Thumb") is a Georgia corporation with its principal place of business in Newnan, Georgia. It is engaged in the business of landscaping and tree removal. Defendant Fulton County ("Fulton County") is a political subdivision of the State of Georgia. Webster Green Thumb and Fulton County are the only parties that remain at this stage of the litigation. All other parties have been dismissed. Accordingly, Webster Green Thumb seeks recovery of its attorneys' fees from Fulton County alone.

In this action, the Plaintiff successfully challenged Fulton County's 1994 Minority and Female Business Enterprise ("MFBE") program. The facts of this case are stated in detail at 44 F.Supp.2d 1359, 1363-71 (N.D.Ga.1999), and 51 F.Supp.2d 1354, 1356-61 (N.D.Ga.1999), and are not recited here except to the extent they specifically affect issues relating to the Court's award of attorneys' fees. Plaintiff filed suit in this Court on September 17, 1996. The Complaint was amended twice, first on January 10, 1997, and again on February 4, 1998. The purpose of the First Amended Complaint was to add Willie F. Hill, Kelly Goff, Marjorie Simpson and Minority Distributing Corp. as Plaintiffs. All these additional Plaintiffs, however, were ultimately dismissed by the Court either in its December 9, 1998, Order or its February 12, 1999, Summary Judgment Order. At the time of the Court's February 12, 1999, Summary Judgment Order, the named Plaintiffs were Daniel Webster, Peggy Webster, Kelly Goff and Webster Green Thumb. The Defendants at that time consisted of (1) Fulton County, (2) the six individual members of the Fulton County Board of Commissioners at the time (Mitch Skandalakis, Nancy Boxill, Emma Darnell, Michael Hightower, Gordon Joyner and Tom Lowe), and (3) Michael Cooper, Director of Fulton County's Department of Contract Compliance and Equal Employment Opportunity during the time relevant to this case.

The Second Amended Complaint asserted six claims for relief. Plaintiffs asserted in Count I that Defendants unlawfully discriminated against Plaintiffs on the grounds of race and sex in violation of 42 U.S.C. § 1981 and the Fourteenth Amendment's Equal Protection Clause, as enforced by 42 U.S.C. § 1983. In Counts II and III, Plaintiffs asserted that Defendant Fulton County discriminated against the putative class of Plaintiffs by engaging in a policy, pattern, or practice of discriminating on the basis of race and sex in awarding contracts for goods and services. In Count IV, Plaintiffs asserted that Defendants violated the Equal Protection Clause of the Constitution of the State of Georgia, Art. 1, § 1, ¶ 2. In Count V, Plaintiffs asserted that the Defendants impermissibly violated O.C.G.A. § 48-5-220 by providing tax money to persons for no reason other than their race. Finally, in Count VI, Plaintiffs asserted a retaliation claim pursuant to Section 1981 and the Equal Protection Clause. In asserting these claims, Plaintiffs sought declaratory, injunctive, and monetary relief.

Following discovery, Plaintiffs and Defendants filed motions for summary judgment. The Court entered an Order on February 12, 1999, denying Plaintiffs' Motion for Summary Judgment and granting in part and denying in part Defendants' Motion for Summary Judgment. Defendants' summary judgment motion was granted as to all claims asserted on behalf of Plaintiff Kelly Goff because he lacked standing to sue. The Court also dismissed the state law-based claims in Counts V and VI of the Second Amended Complaint entirely. The Court found that Defendants Skandalakis, Boxill, Darnell, Hightower, Joyner and Lowe were entitled to absolute and qualified immunity as to the claims asserted against them in their individual capacities. Furthermore, the Court concluded that there was no reason to continue the case against them in their official capacities since Fulton County was already a party over which the Court had jurisdiction. Consequently, Defendants' Motion for Summary Judgment was granted on all claims as to Defendants Skandalakis, Boxill, Darnell, Hightower, Joyner and Lowe. Defendants' Motion for Summary Judgment was denied in all other respects as to Defendants Fulton County and Cooper.

The Court stated in its February 12, 1999, Summary Judgment Order that it would first conduct a bench trial regarding the 1994 MFBE program's constitutionality. A separate jury trial on Plaintiffs' claim for monetary damages would follow. The bench trial was conducted over six days beginning May 11, 1999. The Court then recessed for two days prior to closing arguments to review the voluminous documentary evidence introduced at trial. Closing arguments were held on May 24, 1999. The Court spent three weeks working on its findings of facts and conclusions of law. The Court, in an Order entered June 11, 1999, struck down the Fulton County MFBE program as an unconstitutional violation of the Equal Protection Clause. The Court explained its decision, as noted in its Conclusion to the June 11, 1999, Order by stating:

In summary, Fulton County has operated a minority and female preference program for most of the past two decades. The program has been good for economic development in the minority business community. Historically, minorities have been the victims of pervasive discrimination in all facets of economic enterprise. As a matter of good public policy, this alone might justify minority set aside programs by public agencies. Nonetheless, the Supreme Court has held that such programs involving racial or ethnic preferences must be subjected to strict scrutiny. Applying the high standards set by the Supreme Court and the Eleventh Circuit, the Fulton County 1994 MFBE Program cannot survive strict scrutiny with respect to the evidentiary foundation for such a program or narrow tailoring to meet a compelling governmental interest. There is no evidence that the Fulton County Government has significantly or systematically discriminated against African-American or other minority businesses in the decades of the 1980s and 1990s. There is insufficient evidence that it has become a passive participant in a pervasive system of discrimination in the private sector and that racial and ethnic preferences have been adopted as a last resort to eliminate that discrimination. The program itself does nothing to remedy discrimination in private sector contracting. The goals set by the program are not based upon any realistic assessment of the availability of minority business enterprises in the Atlanta metropolitan marketplace. Likewise, Fulton County has not produced sufficient probative evidence of discrimination against female business enterprises to justify a gender preference program. Therefore, race, ethnic and gender balancing in Fulton County contracting must end.

Webster v. Fulton County, 51 F.Supp.2d 1354, 1383 (N.D.Ga.1999), aff'd, 218 F.3d 1267 (11th Cir.2000). Final judgment on the claim for declaratory and equitable relief was entered in favor of Plaintiff Webster Green Thumb. Plaintiffs on June 24, 1999, filed their first motion requesting attorneys' fees for work done on the case up to that point and provided the Court a supporting itemization of their fees on July 23, 1999. After careful consideration, the Court chose to defer all attorneys' fees issues until conclusion of the entire case.

A jury trial on damages was held beginning February 14, 2000. At the conclusion of the trial, the jury returned a verdict in favor of Plaintiff against Fulton County for $8,750 in compensatory damages as lost profits. The jury also awarded Plaintiff $1.00 in nominal damages against Michael Cooper. The jury, however, rejected Plaintiff's claim for $1 million in punitive damages against Cooper. After the jury was dismissed, the Court sustained Cooper's defense of qualified immunity based upon the jury's factual findings and dismissed the action against him. Judgment was entered in favor of the Plaintiff against Fulton County. Plaintiff as the prevailing party in this case now seeks an award of attorneys' fees from Fulton County. Both parties have fully briefed the Court on the fee petition. In addition, the Court conducted a day-long evidentiary hearing on July 3, 2000, to assist it in rendering a reasonable award. Additional submissions were made after the hearing.


The award of attorneys' fees in this action is...

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