Spears v. Meeks et al
ORDER directing that Defendant Sheriff Meeks shall HAVE and RECOVER from Plaintiff the sum of $14,795.00 in attorneys fees, and $224.51 in costs, for which let execution issue. Signed by Chief Judge William Keith Watkins on 8/24/11. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JONATHAN SHANE SPEARS,
DENNIS F. MEEKS, et al.,
) CASE NO. 2:10-CV-671-WKW [WO]
On April 26, 2011, the court entered a Memorandum Opinion and Order (the
“Order”) granting Defendant Sheriff Dennis F. Meeks’s (“Sheriff Meeks”) motion to
dismiss and motion for attorney’s fees pursuant to 42 U.S.C. § 1988. (Doc. # 40
(“Order”).) Specifically, the court held that “Sheriff Meeks is entitled to an award of
reasonable attorney’s fees [under § 1988] for his defense of [the] groundless aspect
of Plaintiff’s Amended Complaint.” (Order, at 15.) The Order also included a
briefing schedule, directing Sheriff Meeks to submit an affidavit detailing his
reasonable attorney’s fees and directing Plaintiff Spears (“Plaintiff”) to respond.
(Order, at 15.) Accordingly, Sheriff Meeks filed a Petition for Fees and Expenses (the
“Petition”), along with accompanying affidavits (Doc. # 44), and Plaintiff responded
(Doc. # 51). Sheriff Meeks replied sua sponte. (Doc. # 53).
The Petition seeks an award of attorney’s fees and expenses in the amount of
$15,019.51 from “Plaintiff and his attorneys.” (Doc. # 44.) In support of that sum,
Sheriff Meeks’s submitted affidavits from attorneys Gary L. Willford, Jr., Jamie K.
Hill, and Robert N. Bailey, II, detailing the hours expended defending Sheriff Meeks,
the hourly rate of the attorneys involved, and the expenses incurred during the
representation. (Doc. # 44, Exs. 2-4.) Plaintiff does not dispute these calculations or
the reasonableness of the rates charged and hours expended. (Doc. # 51.) Rather,
Plaintiff argues that: (1) Sheriff Meeks inequitably seeks an amount of attorney’s fees
that does not account for Plaintiff’s lack of financial resources and inability to pay;
and (2) that § 1988 does not authorize the award of attorney’s fees against a party’s
counsel. (Doc. # 51, at 2-3.) For the reasons that follow, judgment is due to be
entered against Plaintiff, for the sum of $14,795.00 in attorney’s fees, and $224.51 in
The discussion in this matter proceeds in four parts.
Part A discusses
calculation of the appropriate “lodestar” amount of attorney’s fees; Part B analyzes
Plaintiff’s argument that his ability to pay requires a reduction in the fee award; Part
C examines liability of a party’s counsel under § 1988; and Part D deals briefly with
the new attorney’s fee arguments raised by Sheriff Meeks in his reply.
Amount of Attorney’s Fees
Determination of a reasonable attorney’s fee is “committed to the sound
discretion of a trial judge.” Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1676
(2010) (citing § 1988). In applying that discretion, the “lodestar” figure is the
“guiding light” of fee determination under § 1988. Id. at 1672. The “lodestar” figure
equals the reasonable hourly rate multiplied by the hours reasonably expended.
Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988). The presumption of reasonableness afforded to the lodestar calculation is
strong, and that figure “includes most, if not all, of the relevant factors constituting a
reasonable attorney’s fee.” Perdue, 130 S. Ct. at 1673 (internal quotation marks
omitted); City of Burlington v. Dague, 505 U.S. 557, 562 (1992). However, once the
lodestar amount is calculated, “[t]he court may then adjust the lodestar to reach a more
appropriate attorney’s fee, based on a variety of factors. . . .” Ass’n of Disabled Am.
v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006). These factors include
the twelve factors outlined by the former Fifth Circuit in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974),1 but “many of these factors are
usually subsumed within the initial calculation of hours reasonably expended at a
reasonable hourly rate.”
Ass’n of Disabled Am., 469 F.3d at 1359 n.1 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983)); see also Perdue, 130 S. Ct. at
I. Reasonable Hourly Rate
An hourly rate is reasonable if it “is the prevailing market rate in the legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Norman, 836 F.2d at 1299. The fee applicant has the
burden of producing satisfactory evidence that the requested rate is in line with
prevailing market rates. See Coastal Fuels Marketing, Inc. v. Fla. Exp. Shipping Co.,
Inc., 207 F.3d 1247, 1252 (11th Cir. 2000); see also Loranger v. Stierheim, 10 F.3d
776, 781 (11th Cir. 1994). “[A] movant may meet his burden by producing either
direct evidence of rates charged under similar circumstances or opinion evidence of
reasonable rates.” Duckworth v. Whisenant, 97 F.3d 1393, 1395 (11th Cir. 1996)
The Johnson factors include: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation,
and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of
the professional relationship with the client; and (12) awards in similar cases. 488 F.2d at 71719.
(citing Norman, 836 F.2d at 1299). Where a plaintiff relies on opinion evidence,
“[t]he weight to be given” such evidence “will be affected by the detail contained in
the testimony on matters such as similarity of skill, reputation, experience, similarity
of case and client, and breadth of the sample of which the expert has knowledge.”
Norman, 836 F.2d at 1299. However, where there is a lack of documentation, a
district court may make an independent judgment based on its own experience and
knowledge concerning the rates charged by lawyers of similar skill in similar lawsuits
in the same market area. Id. at 1303.
Plaintiff does not object to the reasonableness of the hourly rates claimed by
Sheriff Meeks’s counsel in their affidavits. (Doc. # 51.) Nor does Plaintiff object to
the sufficiency of Sheriff Meeks’s evidence. Given the absence of protest from
Plaintiff, and applying independent judgment, the court finds the requested hourly
rates reasonable. Following the practice of this district, these rates are applied for
purposes of this fee petition only. Matthews v. City of Dothan, No. 04-640, 2008 WL
450433, at *2 (M.D. Ala. Feb. 15, 2008); Anderson v. Unum Life Ins. Co. of Am., No.
01-894, 2007 WL 604728, at *9 (M.D. Ala. Feb. 22, 2007).
ii. Reasonable Hours Expended
After determining the reasonable hourly rate, the court must ascertain whether
the hours expended by the prevailing party are reasonable and, thus, compensable.
Norman, 836 F.2d at 1301. In setting forth the hours expended, the fee applicant
must exercise what the Supreme Court has termed “billing judgment.”
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). That means they must
exclude from their fee applications “excessive, redundant, or otherwise
unnecessary [hours],” id., which are hours “that would be unreasonable
to bill to a client and therefore to one’s adversary irrespective of the skill,
reputation or experience of counsel.” Norman, 836 F.2d at 1301 . . . .
If fee applicants do not exercise billing judgment, courts are obligated to
do it for them, to cut the amount of hours for which payment is sought,
pruning out those that are “excessive, redundant, or otherwise
Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). “Because
reducing the hours claimed requires the court’s precision, the law in this circuit
commands that both the proof of the hours spent in litigation and any corresponding
objections posed be voiced with a similar exactitude.” Duckworth, 97 F.3d at 1397
(citing Norman, 836 F.2d at 1301).
Likewise, Plaintiff does not in any way challenge the hours listed in Sheriff
Meeks’s affidavits and billing records. (Doc. # 51.) Based on a review of the billing
documents, the charges detailed therein, and the affidavits included in the Petition, the
court finds that the hours billed in this case are reasonable.
iii. Lodestar Calculation
Multiplying the reasonable hourly rate for Sheriff Meeks’s counsel by the
reasonable hours they expended, the court determines the lodestar figure to be
In addition, Sheriff Meeks claims $224.51 in travel and research expenses
related to his representation. (Doc. # 44, Ex. 2, at 8.) Plaintiff does not object to the
award of expenses or the reasonableness of that figure. Expenses are recoverable
under § 1988, and the court finds the sum of $224.51 to be reasonable. See Dowdell
v. City of Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983) (“[W]ith the exception
of routine office overhead normally absorbed by the practicing attorney, all reasonable
expenses incurred in case preparation, during the course of litigation, or as an aspect
of settlement of the case may be taxed as costs under section 1988.”).
When determining the appropriate attorney’s fee to award to a prevailing
defendant, the court must consider the twelve Johnson factors as well the “thirteenth
Johnson” factor: the plaintiff’s financial resources. Kreager v. Solomon & Flanagan,
The lodestar calculation is as follows:
$150 x 71.4 hours = $10,710.00
$120 x 8.7 hours = $ 1,044.00
$175 x 13.2 hours = $ 2,310.00
$215 x 3.4 hours = $ 731.00
P.A., 775 F.2d 1541, 1544 (11th Cir. 1985); Durrett v. Jenkins Brickyard, Inc., 678
F.2d 911, 917 (11th Cir. 1982); see also Jones v. United Space Alliance, L.L.C., 494
F.3d 1306, 1310 (11th Cir. 2007) (“[A]ctions under § 1988 and Title VII are to be
treated identically with concern to attorneys’ fees.”). “Equitable considerations
appropriately guide the determination of fee awards authorized by federal statute, and
the financial resources of the paying party are one such consideration.” Durett, 678
F.2d at 917 (citing Faraci v. Hickey-Freeman Co., 607 F.2d 1025, 1028 (2d Cir.
Sheriff Meeks does not seek any adjustment to the lodestar calculation under
the Johnson factors, nor does the court discern any Johnson factor that warrants an
upward adjustment of the lodestar calculation. Johnson, 488 F.2d at 717-19.
However, Plaintiff argues that Sheriff Meeks’s request “for the full award of
$15,019.51 is . . . unreasonable in that it does not take into account Plaintiff’s financial
resources and ability to pay.” (Doc. # 41, at 2-3.) In opposition, Sheriff Meeks asks
the court to postpone calculation and entry of the final award until this case has been
resolved. According to Sheriff Meeks, the court can more accurately determine
Plaintiff’s ability to pay after his remaining claims are resolved by trial or settlement.
(Doc. # 53, at 7-8.)
The equities in this case do not favor a downward adjustment of the lodestar
figure or postponement of the award of attorney’s fees. First, the equitable concern
underpinning the thirteenth Johnson factor does not apply in this case, where Plaintiff
is the estate of a decedent. For reasons that should be obvious, there is no risk that
any attorney’s fee award will subject Plaintiff to “financial ruin.” Cf. Durrett, 678
F.2d at 917; Faraci, 607 F.2d at 1029. Second, the $1,000 valuation of Decedent
Edward Eugene Spears’s estate is not representative of Plaintiff’s future ability to pay.
(Doc. # 51, Ex. 1.) In fact, the assets in Decedent’s estate include Plaintiff’s
remaining § 1983 and state law claims against the remaining Defendants. Though
these assets are contingent, they certainly have a net present value that dwarfs the
$1,000 figure offered by Plaintiff. Finally, the court declines to delay awarding
attorney’s fees on the basis of the future events cited by Sheriff Meeks. One could
imagine myriad future events affecting the value of Plaintiff’s estate one way or
another, but none of them provide a just reason for delaying calculation of the fees and
expenses due or entry of that judgment.
Liability of Plaintiff’s Counsel for Attorney’s Fees
Sheriff Meeks’s lengthy arguments that Plaintiff’s counsel should be held liable
for the attorney’s fee award are short on legal citations. (Doc. # 53, at 2-6.) While he
claims that his “research confirms the Plaintiff’s statement that the question of
whether attorneys’ fees can be awarded against an attorney under § 1988 is a matter
of first impression in the Eleventh Circuit” (Doc. # 53, at 3), apparently the Circuit
failed to make much of an impression. Contrary to Sheriff Meeks’s arguments, §
1988 does not authorize attorney liability for fees and costs. Baker v. Alderman, 158
F.3d 516, 527 (11th Cir. 1998) (“Attorney’s fees under § 1988 are assessed against
losing parties, and not against counsel.”); Brown v. Borough of Chambersburg, 903
F.2d 274, 277 (3d Cir. 1990) (“We conclude that § 1988 does not authorized the
award of attorneys’ fees against plaintiff’s attorney.”); Smith v. Detroit Fed’n of
Teachers Local 231, 829 F.2d 1370, 1374 n.1 (6th Cir. 1987) (“[A]n award under
section 1988 may only be charged against the losing party, not the party’s
attorney. . . .”); Hamer v. Lake Cnty., 819 F.2d 1362, 1370 (7th Cir. 1987) (“Section
1988 only authorizes the imposition of fees against parties to the litigation, not their
attorneys.”); Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986) (“An award
under § 1988 is available to the prevailing party and is charged against the losing
party, not his attorney.”); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 761
& n.9 (1980) (noting in dicta that the statutory language and legislative history of §
1988 support the view that “[§ 1988] was not intended to permit recovery from
opposing counsel.”); Santhuff v. Seitz, 385 F. App’x. 939, 947 (11th Cir. 2010) (“[I]t
is incorrect to hold counsel accountable for fees under § 1988.”).
Sheriff Meeks’s Bad Faith and 28 U.S.C. § 1927 Arguments
In his reply brief, Sheriff Meeks advances new arguments for holding Plaintiff’s
counsel liable for the attorney’s fees, arguments that he did not raise in the motion for
attorney’s fees or in the Petition. (See Docs. # 27-28, 44.) Sheriff Meeks argues that
Plaintiff’s counsel should be held liable under (1) the court’s “inherent power to
sanction counsel for bad faith” (Doc. # 53, at 5) or (2) 28 U.S.C. § 1927. Sheriff
Meeks’s arguments are unpersuasive for three reasons. First, Sheriff Meeks’s
arguments should have been raised in his motion for attorney’s fees, not in the Petition
to determine the amount of fees. Therefore, these arguments are waived. Second,
these arguments were not included with the Petition and are made for the first time in
a reply that was filed without authorization. See, e.g., Big Top Koolers, Inc. v. CircusMan Snacks, Inc., 528 F.2d 839, 844 (11th Cir. 2008). Third, the Memorandum
Opinion and Order included no finding of bad faith sufficient to underpin the relief
now sought by Sheriff Meeks. Nor will the court revisit the issue at this late date.
Accordingly, Sheriff Meeks’s additional arguments fail.
Accordingly, it is ORDERED that Defendant Sheriff Meeks shall HAVE and
RECOVER from Plaintiff the sum of $14,795.00 in attorney’s fees, and $224.51 in
costs, for which let execution issue.
DONE this 24th day of August, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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