Santiago Manuel A. v. Jamison et al

Filing 281

OPINION AND ORDER granting in part and otherwise denying 273 Motion for Attorney Fees and costs. The request for attorney's fees is denied and the request for costs is granted in the amount of $1,400. The Clerk shall enter judgment taxing costs against plaintiff in this amount. Signed by Judge John E. Steele on 2/13/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SANTIAGO
MANUEL
A.,
individually and on behalf
of SA,
Plaintiff,
v.

Case No: 2:13-cv-781-FtM-29CM

DALE JAMISON, BRIAN BOTTS,
Dr.,
School
Principal
(Edison
Collegiate
High
School),
EDISON
STATE
COLLEGE, Lee Campus, and
SCHOOL BOARD OF LEE COUNTY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants' Motion for
Attorney's Fees and Costs (Doc. #273) filed on April 22, 2016.
Defendants also filed a Notice of Plaintiff’s Refusal to Confer
Regarding Motion for Attorney’s Fees and Costs (Doc. #275).

On

April

in

29,

opposition.

2016,

plaintiff

filed

a

Response

(Doc.

#278)

Defendants seek $74,967.50 in attorney fees and

$1,570.25 in costs based on plaintiff’s failure to accept proffered
settlement proposals, and as the prevailing parties in the case.
The motion for fees will be denied for the reasons stated below,
however the request for costs will be granted in part.

I.

Judgment

Plaintiff initiated his Complaint (Doc. #1) on November 4,
2013, and was permitted to proceed in forma pauperis.

(Doc. #6.)

Defendants appeared and filed motions to dismiss on January 23,
2014.

(Docs. ## 21-22.)

A Case Management and Scheduling Order

was entered, and on September 3, 2014, the Court issued an Opinion
and Order (Doc. #88) finding that plaintiff could not proceed on
behalf of his son, granting the motion to dismiss without prejudice
to amending, and directing plaintiff to file an amended complaint.
On September 22, 2014, an Amended Complaint (Doc. #98) was filed,
and defendants responded by filing their motions to dismiss.

The

discovery disputes continued for some time, and on April 22, 2015,
the Court granted plaintiff’s request to file a second amended
complaint.

(Doc. #144.)

On May 5, 2015, plaintiff filed his Second Amended Complaint
(Doc. #146), and defendants filed their motions to dismiss.

On

November 18, 2015, the Court adopted the Magistrate Judge’s Report
and Recommendation (Doc. #205) and denied leave to amend the
complaint

further.

(Doc.

#230.)

Plaintiff

filed

numerous

objections to discovery, and an interlocutory appeal as to the
Opinion and Order denying leave to amend and as to an Order denying
leave to reopen discovery.

(Doc. #251.)

The Court declined to

certify the appeal, denied a request to stay pending appeal, and
cancelled all further deadlines pending a decision on the pending

- 2 -

motions

to

dismiss.

(Docs.

##

dismissed for lack of jurisdiction.

253,

264.)

The

appeal

was

(Doc. #268.)

On April 8, 2016, the Court issued an Opinion and Order (Doc.
#269) granting motions to dismiss in part in favor of defendant
Brian Botts as to Counts III and IV, in favor of Edison State
College as to Count VII, in favor of Dale Jamison as to Counts I
and II, and in favor of the School Board of Lee County as to Count
XII. 1

The motions were otherwise denied as moot as the Court

declined to exercise jurisdiction over the state law claims (Counts
V, VI, VIII, IX, X, XI, XIII) and dismissed the state law claims
without prejudice to refiling in state court.

Judgment (Doc.

#270)

subject-matter

was

entered

the

same

day.

The

Court’s

jurisdiction was based on the presence of a federal question, and
the Court granted judgment in favor of defendants on the federal
claims.

Plaintiff filed a Notice of Appeal (Doc. #271) on April

20, 2016, and the appeal remains pending.

See 16-11854-E.

Defendants seek fees pursuant to Fed. R. Civ. P. 54 and 68;
28 U.S.C. § 1920; Fla. Stat. § 768.79, and Fla. R. Civ. P. 1.442.

Counts I and III were brought under 42 U.S.C. § 1983, and
dismissed for lack of standing, and in the alternative, for
qualified immunity. Counts II, IV, VII, and XII were all brought
under 42 U.S.C. § 2000d (Title VI) and dismissed because no private
cause of action exists, and further dismissed with prejudice as to
the individual defendants.
1

- 3 -

II.

Prevailing Party

“A claim for attorney's fees and related nontaxable expenses
must be made by motion unless the substantive law requires those
fees to be proved at trial as an element of damages.”
Civ. P. 54(d)(2).

Fed. R.

Absent statutory authority or an enforceable

contract, recovery of attorney fees by even a “prevailing party”
is ordinarily not permitted under the “American Rule.”

Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975);
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 602 (2001).
The Court finds that defendants are prevailing parties.

In

any action to enforce a provision of Title VI of the Civil Rights
Act of 1964 or Section 1983, “the court, in its discretion, may
allow

the

prevailing

party,

other

than

the

United

reasonable attorney's fee as part of the costs.”
1988(b).

a

42 U.S.C. §

This award of fees may include expert fees.

§ 1988(c).

States,

42 U.S.C.

“The purpose of § 1988 is to ensure effective access

to the judicial process for persons with civil rights grievances.”
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citing H.R. Rep.
No. 94–1558, p. 1 (1976)).

The Supreme Court has qualified the

provision as to a prevailing defendant requiring a finding that
plaintiff’s

action

was

“frivolous,

unreasonable,

or

without

foundation, even though not brought in subjective bad faith.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).

- 4 -

A

district court “must focus on the question whether the case is so
lacking in arguable merit as to be groundless or without foundation
rather

than

whether

the

claim

was

ultimately

successful.”

Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182, 1189
(11th Cir. 1985) (citation omitted).

Cases where frivolity has

been found are usually cases where “plaintiffs did not introduce
any evidence to support their claims.”
cases).

Id. at 1189 (collecting

This determination is to be made on a case-by-case basis,

and a non-exhaustive list of factors to be considered include: (1)
whether plaintiff established a prima facie case; (2) whether
defendant offered to settle; and (3) whether trial court dismissed
the case prior to trial or held a trial on the merits.
773

F.2d

at

1189

(citations

omitted).

See

also

Sullivan,
Cordoba

v.

Dillard’s, Inc., 419 F.3d 1169, 1176-77 (11th Cir. 2005) (citing
Sullivan, 773 F.2d at 1189).
Although the factors weigh heavily against plaintiff, it was
entirely foreseeable that a father attempting to assert a claim on
behalf of his son in good faith would reject an offer of $2.00 in
exchange for a dismissal with prejudice of all of his claims.
Further, the Court cannot find that the case was so frivolous and
baseless as to warrant attorney’s fees.

Plaintiff, who is pro se,

had a standing issue but a subjective good faith belief in his
cause, and the Court is not inclined to chill those rights.
Granting

attorney’s

fees

to

a

prevailing

- 5 -

defendant

in

this

particular case would run afoul of congressional intent, and unduly
“shift

the

economic

burden

of

litigation”

onto

plaintiff.

Stouffer Hotel Co. v. Teachers Ins., 944 F. Supp. 874, 875 (M.D.
Fla. 1995), aff'd, 101 F.3d 707 (11th Cir. 1996), and the Court.
The motion for fees as a prevailing party will be denied.
III. Offer of Settlement
Attached to defendants’ motion are Proposals for Settlement
(Doc. #273, pp. 6-61) on behalf of each defendant offering $2.00
each in a single lump sum payment, half of which is for the claim
for

punitive

indemnity

and

damages
a

in

exchange

dismissal

with

for

a

general

prejudice. 2

release

“Evidence

of

and
an

unaccepted offer is not admissible except in a proceeding to
determine

costs.”

Fed.

R.

Civ.

P.

68(b).

Defendant

seeks

attorney fees pursuant to Rule 68, but more specifically under
Fla. Stat. § 768.79 and Fla. R. Civ. P. 1.422.
In any civil action for damages filed in the
courts of this state, if a defendant files an
offer of judgment which is not accepted by the
plaintiff within 30 days, the defendant shall
be entitled to recover reasonable costs and
attorney's fees incurred by her or him or on
the defendant's behalf pursuant to a policy of
liability insurance or other contract from the
date of filing of the offer if the judgment is
one of no liability or the judgment obtained
by the plaintiff is at least 25 percent less
than such offer, and the court shall set off

2

Also submitted is the Affidavit of Bryan R. Snyder (Doc.
#273, p. 62) and billing records.

- 6 -

such costs and attorney's fees against the
award.
Fla. Stat. § 768.79(a).

“This rule applies to all proposals for

settlement authorized by Florida law.”

Fla. R. Civ. P. 1.442(a)

(emphasis added).
As
federal

stated

above,

claims.

defendants

“Even

prevailed

without

an

entirely

express

based

provision

on
for

preemption, the Supreme Court has found that State law must yield
to a congressional act whenever Congress intends federal law to
“occupy the field” or, even if Congress has not occupied the field,
where there is nevertheless a conflict between a State law and a
federal statute.”

Design Pallets, Inc. v. Gray Robinson, P.A.,

583 F. Supp. 2d 1282, 1286 (M.D. Fla. 2008) (citation omitted).
The Eleventh Circuit has determined that Fla. Stat. § 768.79 is
substantive

law

for

Erie 3 purposes,

and

several

intermediate

Florida state courts of appeal have held that Christiansburg
prevents recovery under this section.

Jones v. United Space All.,

LLC, 494 F.3d 1306, 1309, 1310 (11th Cir. 2007).
The cases cited by defendants are also distinguishable.

Two

of the cases were based on state law, and judgment was granted
based on state law.

See Embroidme.com, Inc. v. Travelers Prop.

Cas. Co. of Am., No. 12-81250-CIV, 2015 WL 419879, at *1 (S.D.
Fla. Jan. 22, 2015) (summary judgment granted on breach of contract

3

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

- 7 -

claim); Gardner v. Ford Motor Co., No. 614CV508ORL18DAB, 2015 WL
9673582 (M.D. Fla. Dec. 11, 2015), report and recommendation
adopted, No. 614CV508ORL18DAB, 2016 WL 97607 (M.D. Fla. Jan. 6,
2016) (jurisdiction based on diversity, and motion was denied).
In the third case, where the Court also declined jurisdiction over
the state claims, the motion was denied for failure to comply with
the specificity requirements of Fla. Stat. § 768.79 and Fla. R.
Civ. P. 1.442, and the issue of entitlement was not reached.
Opalinsky v. Gee, No. 8:14-CV-2280-T-33TGW, 2016 WL 853137, at *4
(M.D. Fla. Mar. 4, 2016).

The motion for attorney fees will be

denied as Florida law does not apply to support the award.
IV.

Costs

“Unless a federal statute, these rules, or a court order
provides otherwise, costs--other than attorney's fees--should be
allowed to the prevailing party.”
Court

does

find

that

Fed. R. Civ. P. 54(d)(1).

defendants,

as

prevailing

The

parties,

are

otherwise entitled to statutory costs under 28 U.S.C. § 1920.

The

following types of costs may be taxed:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically
recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and the costs of
making copies of any materials where the

- 8 -

copies are necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees,
expenses,
and
costs
of
special
interpretation services under section 1828 of
this title.
28 U.S.C. § 1920.
Defendants

seek

$1,570.25 4 in

costs,

which

represents

a

portion of the total costs listed, and attached the Invoice from
the deposition of plaintiff.

(Doc. #273, pp. 126-128.)

A portion

of this amount is for photocopies, and $1,402.00 of this amount is
for the deposition.

Defendants make no argument regarding the

necessity of the copies, see EEOC v. W&O, Inc., 213 F.3d 600, 623
(11th Cir. 2000), and no receipts were attached.

Therefore, the

copying costs will be denied.
Deposition costs simply for convenience or investigation are
not recoverable.

Id. at 620-621.

Whether the costs are taxable

“depends on the factual question of whether the deposition was
wholly or partially necessarily obtained for use in the case.”
Id.

at

621

(citations

omitted).

This

does

not

require

the

prevailing party to actually use it, just as long as there is “no
evidence shows that the deposition was unrelated to an issue in

4

The actual total of the photocopies and deposition based on
the billing records is $1,594.85.

- 9 -

the case at the time it was taken.”

Watson v. Lake Cty., 492 F.

App'x 991, 996–97 (11th Cir. 2012).

The deposition of plaintiff

was taken during discovery and would have become necessary for use
in the case for summary judgment or trial.

As the deposition was

necessary for use in the case, the cost will be imposed without
the additional $2.00 for a photocopy, for a total of $1,400.
Accordingly, it is hereby
ORDERED:
1. Defendants' Motion for Attorney's Fees and Costs (Doc.
#273) is DENIED as to the request for attorney’s fees and
GRANTED IN PART as to the request for costs.
2. The

Clerk

shall

enter

judgment

taxing

costs

against

plaintiff in the amount of $1,400.00.
DONE and ORDERED at Fort Myers, Florida, this
of February, 2017.

Copies:
Plaintiff
Counsel of Record

- 10 -

13th

day