Provitola v. Comer et al
Filing
63
ORDER granting 36 Defendants' Motion for Entitlement to Attorney's Fees. The parties are DIRECTED to meet and confer regarding the award of fees. If an agreement over the amount of the award is not reached, then Defendants are DIRECTED to file a supplemental motion on the amount of the award within forty-five (45) days of this Order in accordance with Local Rule 7.01(c). Signed by Judge Paul G. Byron on 5/9/2024. (ND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANTHONY I. PROVITOLA,
Plaintiff,
v.
Case No: 6:20-cv-862-PGB-DCI
DENNIS L. COMER and FRANK
A. FORD, JR.,
Defendants.
/
ORDER
This cause comes before the Court on Defendants’ Motion for Entitlement
to Attorney’s Fees (Doc. 36 (the “Motion”)) and Plaintiff’s response thereto (Doc.
46). Upon consideration, the Motion is due to be granted.
I.
BACKGROUND
The facts of this case have been recounted elsewhere (Doc. 33, pp. 1–4, 12),
but the Court will provide a brief overview of the relevant procedural history. After
two unsuccessful state court actions, including two state court appeals (both
resulting in per curiam affirmances), and a failed attempt at obtaining review by
the Florida Supreme Court—which resulted in sanctions being imposed against
him—Plaintiff filed a six-count Complaint against Defendants in this Court
asserting claims under 42 U.S.C. § 1983 and 28 U.S.C. § 1367. (See Doc. 1). This
Court dismissed the original Complaint without prejudice as a shotgun pleading,
providing Plaintiff an opportunity to amend. (Doc. 24).
On September 6, 2020, Plaintiff filed a First Amended Complaint (Doc. 25
(the “Amended Complaint”)). Therein, Plaintiff asserted claims for relief due to
Defendants’ “continuing deprivation, under color of authority of statute, policy,
custom, practice or usage, of the rights and privileges secured to the Plaintiff by
the Fourteenth Amendment to the United States Constitution and the Constitution
and laws of the State of Florida that occurred during a civil action by the Plaintiff
in the Courts of Florida” and also sought “declaratory judgment under 28 U.S.C. §
2201.” (Id. ¶ 1). On March 4, 2021, the Court issued an Order dismissing the
Amended Complaint with prejudice, noting that it was “objectively frivolous.”
(Doc. 33 (the “Order”)). In its Order, the Court sua sponte directed Plaintiff to
show cause as to why Rule 11 sanctions should not be imposed against him. (Id. at
p. 13).
On March 18, 2021, Defendants filed the instant Motion requesting
attorney’s fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927. (Doc.
36). After Plaintiff’s response to Defendants’ Motion (Doc. 46), and the Eleventh
Circuit’s affirmance of the Court’s substantive findings dismissing the case (Docs.
50, 51, 62), the Motion is now ripe for review. 1
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The Eleventh Circuit affirmed the Court’s dismissal of the case under the Rooker-Feldman
doctrine. (Doc. 50). However, the Eleventh Circuit remanded after instructing the Court that
it should dismiss the case without prejudice rather than with prejudice because “[a] dismissal
for lack of subject matter jurisdiction must . . . be entered without prejudice because it is not
a judgment on the merits.” (Doc. 50, p. 6 (citing Stalley ex rel. U.S. v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008))).
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II.
DISCUSSION
The Court addresses whether Plaintiff is subject to sanctions under 42 U.S.C.
§ 1988 and 28 U.S.C. § 1927 in turn.
A.
42 U.S.C. § 1988
Section 1988(b) provides:
In any action or proceeding to enforce a provision of section[]
. . . 1983 . . . , the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs, except that in any action
brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity such officer shall not be held
liable for any costs, including attorney’s fees, unless such
action was clearly in excess of such officer’s jurisdiction.
42 U.S.C. § 1988(b). “[A] defendant need not obtain a favorable judgment on the
merits in order to be a ‘prevailing party’” for fee purposes because “defendant has
. . . fulfilled its primary objective whenever the plaintiff’s challenge is rebuffed,
irrespective of the precise reason for the court’s decision.” CRST Van Expedited,
Inc. v. E.E.O.C., 578 U.S. 419, 431 (2016). A prevailing defendant in a civil rights
case may be awarded attorney’s fees pursuant to 42 U.S.C. § 1988 if “the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith, or . . . [if] the plaintiff continued to litigate after it
clearly became so.” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting
Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978)); see also Beach
Blitz Co. v. City of Miami Beach, Fla., 13 F.4th 1289, 1297 (11th Cir. 2021) (internal
citations omitted). “The fact that a plaintiff may ultimately lose his case is not in
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itself a sufficient justification for the assessment of fees” under § 1988. Hughes,
449 U.S. at 14.
To determine whether an action is “frivolous” for purposes of § 1988, the
court focuses on “whether the case is so lacking in arguable merit as to be
groundless or without foundation[,] rather than [on] whether the claim was
ultimately successful.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189
(11th Cir. 1985) (quoting Jones v. Tex. Tech. Univ., 656 F.2d 1137, 1145 (5th Cir.
1981)). “Factors considered important in determining whether a claim is frivolous
include: (1) whether the plaintiff established a prima facie case; (2) whether the
defendant offered to settle; and (3) whether the trial court dismissed the case prior
to trial or held a full-blown trial on the merits.” Id. These factors “are general
guidelines only, not hard and fast rules. Determinations regarding frivolity are to
be made on a case-by-case basis.” Id.
As the prevailing party, Defendants are entitled to an award of attorney’s
fees under 42 U.S.C. § 1988 because Plaintiff’s case was groundless without
arguable merit at the time of filing. See Sullivan, 773 F.2d at 1189. Nonetheless,
Plaintiff argues that Defendants are not entitled to an award of attorney’s fees
because the Court dismissed Plaintiff’s claims for lack of jurisdiction, and thus, the
Court also lacks jurisdiction to make an award to Defendants. (Doc. 46). However,
because “a defendant need not obtain a favorable judgment on the merits in order
to be a ‘prevailing party,’” the Court may still award Defendants attorney’s fees for
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rebuffing Plaintiff’s claims, even if not on the merits. See CRST Van Expedited, 578
U.S. at 431.
More importantly, the totality of the circumstances supports a finding that
Plaintiff’s Amended Complaint was frivolous. First, Plaintiff did not plead a prima
facie case. He failed to bring claims over which the Court could exercise subject
matter jurisdiction under the Rooker-Feldman doctrine, and he also failed to
allege the necessary elements for his § 1983 claims. (Doc. 33, pp. 7–8). After losing
on his various appeals, Plaintiff’s recourse was to appeal his state court losses to
the United States Supreme Court, not to seek a reset by refashioning his claims and
filing them in this Court. Second, there is no evidence Plaintiff engaged in good
faith settlement discussions with Defendants. Third, at the motion to dismiss
stage, the Court dismissed the case due to a multitude of facial deficiencies. (See
generally id.). In sum, the Court finds that the Sullivan factors weigh in favor of a
finding that Plaintiff’s case was groundless when filed. See Sullivan, 773 F.2d at
1189 (internal citations omitted). Consequently, as the prevailing parties,
Defendants are entitled to an award of attorney’s fees under 42. U.S.C. § 1988.
B.
28 U.S.C. § 1927
Section 1927 provides that an attorney “who so multiplies the proceedings
in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorney’s fees reasonably incurred
because of such conduct.” 28 U.S.C. § 1927. Because § 1927 is penal in nature, it
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must be strictly construed. Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th
Cir. 1997).
The statute establishes three requirements before a court may impose
sanctions: (1) the attorney “must engage in unreasonable and vexatious conduct,”
(2) the attorney’s conduct must have multiplied the proceedings, and (3) the
amount of the sanction to be imposed must not “exceed the costs occasioned by
the objectionable conduct.” Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010).
Regarding the first requirement, an attorney acts “unreasonably and
vexatiously” when his conduct “is so egregious that it is ‘tantamount to bad faith.’”
Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2006). The
test for determining bad faith conduct is ultimately an objective one; a court must
look to how an objectively reasonable attorney would have acted under the same
circumstances. Id. at 1240–41. Nevertheless, “the attorney’s subjective state of
mind is frequently an important piece of the calculus, because a given act is more
likely to fall outside the bounds of acceptable conduct . . . if it is done with a
malicious purpose or intent.” Id. at 1241. It is well-settled that “[s]omething more
than a lack of merit or negligent conduct” is required to find that an attorney acted
in bad faith. Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 841 (11th
Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1146 (2012). 2 Rather, an attorney
2
“Unpublished opinions are not controlling authority and are persuasive only insofar as their
legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir.
2007).
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acts in bad faith when he “knowingly or recklessly pursues a frivolous claim.”
Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). To that end, a
claim is objectively frivolous when there is no “plausible legal or factual basis” to
support it. Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226–27 (5th Cir.
1984).
As an initial matter, “the language of § 1927 makes clear that it only applies
to unnecessary filings after the lawsuit has begun.” Macort v. Prem, Inc., 208 F.
App’x 781, 786 (11th Cir. 2006) (citing Matter of Yagman, 796 F.2d 1165, 1187 (9th
Cir. 1986) (“Section 1927 does not apply to initial pleadings, since it addresses only
the multiplication of proceedings. It is only possible to multiply or prolong
proceedings after the complaint is filed.”), amended, 803 F.2d 1085 (9th Cir.
1986)). Therefore, “[t]he filing of a complaint may be sanctioned pursuant to Rule
11[,] or a court’s inherent power, but it may not be sanctioned pursuant to § 1927.”
Id. (quoting In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996));
see also Velez v. Levy World Ltd. P’ship., No. 6:03-cv-878, 2007 WL 842768, at *4
(M.D. Fla. Mar. 20, 2007) (“The language of § 1927 makes clear that it only applies
to unnecessary filings after the lawsuit has begun and does not apply to initial
pleadings.”); Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., LLC, No. 2:07-cv258, 2011 WL 4837270, at *3 (M.D. Fla. May 3, 2011) (holding same), report and
recommendations adopted, 2011 WL 4836218 (M.D. Fla. Oct. 12, 2011).
Here, Defendants’ Motion is predicated on Plaintiff’s initial pleading— the
frivolous Amended Complaint—and the Court cannot consider the voluminous
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prior litigation history of this case in state court. However, shortly after Plaintiff
filed the Amended Complaint, the Court granted Defendants’ motion to dismiss
with prejudice, the Eleventh Circuit affirmed in substance, and yet Plaintiff
persisted in fruitlessly pursuing the case. (Docs. 33, 50). Upon remand—without
leave of the Court, in violation of both Federal Rule of Civil Procedure 15(a)(2) and
the Court’s Case Management Scheduling Order—the Plaintiff unilaterally
attempted to amend its complaint. (Docs. 22, 52). Accordingly, Defendants can
demonstrate that “the proceedings were multiplied” even though the case only
made it to “the early stage of litigation.” Allyn v. Am. Bd. of Med. Specialties, Inc.,
No. 5:18-cv-355, 2019 WL 297459, at *7 (M.D. Fla. Jan. 3, 2019), report and
recommendation adopted, 2019 WL 293277 (M.D. Fla. Jan. 23, 2019). As such, an
award of attorney’s fees and costs pursuant to 28 U.S.C. § 1927 is warranted.
III.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendants’ Motion for Entitlement to Attorney’s Fees (Doc. 36) is
GRANTED; and
2.
The parties are DIRECTED to meet and confer regarding the award
of fees. 3 If an agreement over the amount of the award is not reached,
then Defendants are DIRECTED to file a supplemental motion on
the amount of the award within forty-five (45) days of this Order in
accordance with Local Rule 7.01(c).
3
The parties may meet and confer in person, telephonically, or virtually.
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DONE AND ORDERED in Orlando, Florida on May 9, 2024.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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