Alicea v. Mallard et al

Filing 124

ORDER adopting 121 Report and Recommendations.. The Court overrules the Plaintiff's objections and CONFIRMS Judge Irick's Report and Recommendation. Judgment will be entered accordingly. Signed by Judge Gregory A. Presnell on 1/3/2019. (MAF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHN CRUZ ALICEA,
Plaintiff,
v.

Case No: 6:16-cv-1327-Orl-31DCI

BRIAN MALLARD and JEFFREY
BROUGH,
Defendants.

ORDER
Following trial and entry of judgment for Plaintiff (Doc. 115), Plaintiff filed a motion for
award of attorney’s fees and taxation of costs (Doc. 117). The matter was referred to Magistrate
Judge Irick. On November 14, 2018, Judge Irick issued his Report and Recommendation
recommending $67,077.00 in fees and $1,492.20 in costs (Doc. 121). Plaintiff filed an objection
to the Report and Recommendation (Doc. 122) and Defendant responded (Doc. 123).
I.

Attorney’s Fees
In his Report and Recommendation, Judge Irick recounted the extensive background to this

litigation and concluded that Plaintiff was entitled to a reasonable attorney’s fee. In response to
Plaintiff’s motion, Defendant relies on Farrar et al. v. Hobby, 506 U.S. 103 (1992), for the
proposition that, although Plaintiff was the prevailing party, he should receive no fees because of his
limited degree of success. Judge Irick distinguished that case by noting that the jury’s award of
$4,000.00 in punitive damages against Deputy Mallard does not qualify as nominal damages under
Farrar. Based on the cases cited by Judge Irick, I find that Plaintiff is entitled to a reasonable
attorney’s fee under 28 U.S.C. § 1988.

Analyzing the amount of attorney’s fees under the lodestar method, Judge Irick first
addressed the hourly rate for Plaintiff’s counsel in light of the Johnson factors. See Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Although Plaintiff requested an hourly
rate of $375.00, Judge Irick found that $290 per hour was more in line with the range of reasonable
hourly rates for civil rights attorneys with comparable skills and experience in Central Florida. 1 This
finding is supported by the testimony of Defendant’s fee expert and is consistent with case law in this
district and my prior experience with Plaintiff’s counsel. 2

Turning to the number of hours expended, Judge Irick credited the billing records of
Plaintiff’s counsel, but reduced the time by 15 hours for excessive time spent drafting the
Complaint and Plaintiff’s response to Defendant’s Motion for Summary Judgment. Plaintiff’s
objection to this reduction is misplaced. 3 I find, therefore, that Judge Irick’s lodestar
determination of $134,154.00 is supported by the evidence and is consistent with applicable case
law.
Having determined the appropriate lodestar, Judge Irick found that due to the limited
degree of success obtained by Plaintiff, an across-the-board reduction of the lodestar by 50% was
appropriate, resulting in a fee award of $67,077.00.

This reduction is in line with the testimony of

Defendant’s fee expert, Robert Bonner. 4 And although some public benefit was achieved, 50% of

1

Plaintiff conceded in his objection that a rate as low as $300.00 per hour would be
reasonable.
2

The Court can rely on its own knowledge and expertise concerning a reasonable
attorney’s fee. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.
1988).
3

Contrary to Plaintiff’s assertion, Judge Irick did not reduce hours attributable to the
House of Blues.
4

Although Plaintiff questions the veracity of Mr. Bonner’s opinion, the Court is well

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the lodestar is a generous amount considering that Plaintiff prevailed as to only one claim against
one Defendant and failed to prove any compensatory damage. Accordingly, I find that Judge
Irick’s fee recommendation is proper and should be affirmed.
II.

Costs.
In his motion, Plaintiff seeks to recover costs in the amount of $2,388.79. Doc. 117 at

11-12. Defendant objected to the inclusion of the cost of mediation ($460.84) and Plaintiff’s
counsel’s travel expense ($435.75).

Recognizing that neither of these costs are recoverable under

18 U.S.C. § 1920, Judge Irick sustained Defendant’s objection and reduced the cost award to
$1,492.20.
III.

The Court finds no error in this regard.

Conclusion.
For the reasons indicated, the Court overrules the Plaintiff’s objections and CONFIRMS

Judge Irick’s Report and Recommendation.

Judgment will be entered accordingly.

DONE and ORDERED in Chambers, Orlando, Florida on January 3, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Party

aware of Mr. Bonner’s experience and finds him to be a credible witness as to this issue.

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