AMERICAN CIVIL LIBERTIES UNION OF FLORIDA INC v. DIXIE COUNTY FLORIDA

Filing 212

ORDER adopting the magistrate judge's 202 Amended Report and Recommendation except as modified herein and except for the date on which interest on the award begins to accrue. The clerk is directed to enter judgment in favor of AMERICAN CIVIL LIBERTIES UNION OF FLORIDA INC, and against DIXIE COUNTY FLORIDA for attorneys' fees in the sum of $127,726.38 plus interest, at the federal rate, on the award from the date of entry of this order. Signed by CHIEF JUDGE M CASEY RODGERS on 3/23/2012. (djb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

AMERICAN CIVIL LIBERTIES UNION
OF FLORIDA, INC.,
Plaintiff,
v.

CASE NO. 1:07cv18-MP-GRJ

DIXIE COUNTY FLORIDA,
Defendant.
________________________________/
ORDER
This cause comes on for consideration upon the magistrate judge's Amended
Report and Recommendation dated February 6, 2012. (Doc. 202). The parties have been
furnished a copy of the Amended Report and Recommendation and have been afforded
an opportunity to file objections pursuant to Title 28, United States Code, Section
636(b)(1).

Defendant filed timely objections (doc. 209), to which the plaintiff has

responded (doc. 210). The court has made a de novo determination of the timely filed
objections.
Having considered the Amended Report and Recommendation, the timely filed
objections, and the response, the court concludes that the Amended Report and
Recommendation should be adopted in part and modified in part. The court finds that the
defendant has raised two meritorious objections. First, the defendant objects that the
amount awarded, $135,487.50, is greater than the amount the plaintiff offered to accept.
The plaintiff initially requested an award of $156,657.50 in attorneys’ fees but, in reply to
the defendant’s response to the fee application, plaintiff offered to reduce that request by
15%, bringing the fee request to $131,458.88 (doc. 181). While this was an amended and
reduced request, not the amount requested in the fee application, it was stated in a reply
to the court and the court finds that it is not appropriate to enter an award for more than

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the plaintiff requested. See Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423,
439 (11th Cir. 1999) (holding the district court award of more than the plaintiff requested
in their fee application was an abuse of discretion). Accordingly, the award will be reduced
to $131,458.88 on the basis of this objection.
Second, the defendant objects on grounds that proper billing judgment was not
adequately exercised in several instances where the work billed did not require the level
of expertise that the plaintiff’s attorneys brought to the case and yet they billed the time at
their full rate. The court finds for the most part that billing judgment was appropriately
exercised in this case in determining the hours spent.1 See Dillard v. City of Greensboro,
213 F.3d 1347, 1353 (11th Cir. 2000) (stating the “lodestar” “is the number of hours
(tempered by billing judgment) spent in the legal work on the case”). However, the court
finds merit to the objection regarding clerical and some lower-level work billed at senior
partner rates. The types of tasks the defendant sets forth as examples include time billed
for a telephone conference with a courier regarding a filing, a telephone conference with
a process server regarding service, transmitting subpoenas to a process server, preparing
deposition notices, and emailing a court reporter to schedule a deposition. Although these
entries describe undoubtedly valid and necessary duties, and the plaintiffs assert that they
have limited staff resources, prudent billing judgment would dictate that skilled attorneys
need not charge their top billing rate for low-skill tasks. The court agrees with the Third
Circuit’s comment that “[a] Michelangelo should not charge Sistine Chapel rates for
painting a farmer’s barn.” Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983).
“[W]here the court believes that the matter has not been handled efficiently, the court may
reflect that fact by decreasing the hourly rate to the market rate charged by lawyers of less
skill and experience.” Perkins v. Mobile Hsg. Bd., 847 F.2d 735, 738 (11th Cir. 1988).
The plaintiff asserts that less than 10 hours of the total 383.4 hours claimed were
1

Defendant subm itted m any objections to individual tim e records, which the court has reviewed.
Most of these objections involve the defendant’s claim s that excessive tim e was spent on legitim ate legal
m atters. In som e instances, it is claim ed that work was inadequately described or item ized. In a few
instances, the entries, including publicity billing entries, had already been excluded by Attorney Randall
Marshall (doc. 171-3, at 3). W ith the exceptions noted in text of this order, the court finds the billing entries
to be adequate and reasonable but will not detail them here.
Case No: 1:07cv18-MP-GRJ

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spent on such matters. The defense expert on attorney’s fees, Attorney Edward Fleming,
identified the following items that the court agrees would have been more appropriately
billed at a lesser rate: 2.3 hours of time billed at senior partner rates for clerical work; 2.6
hours requesting extensions of time; 4.8 hours to draft a motion to strike a reply; and 1.8
hours disputing subpoena service, billed at Mr. Katon’s rate. These items total 11.5 hours.
The court will subtract that amount (11.5 hours x $350 per hour = $4,025) and instead
apply lower rates to those hours. The court finds a $75 hourly rate reasonable for the 2.3
hours of clerical work (2.3 hours x $75 per hour = $172.50), and that a $200 rate is
reasonable for the remaining 9.2 hours of low-level legal work (9.2 hours x $200 per hour
= $1,840).2 Accordingly, the court will subtract $4,025 and add back $2,012.50 to reflect
the lower rates that reasonably should have been charged for this work.
Additionally, the court finds that it was unreasonable for Mr. Marshall to bill 4.3 hours
to deal with his failure to timely file the bill of costs. Thus, the court will also deduct $1,720
for this billing.3
Accordingly, it is now ORDERED as follows:
1.

The magistrate judge’s Amended Report and Recommendation is adopted

and incorporated by reference in this order except as modified herein and except for the
date on which interest on the award begins to accrue.4
2.

The Clerk is directed to enter judgment in favor of American Civil Liberties

Union of Florida, Inc. and against Dixie County, Florida for attorneys’ fees in the sum of

2

These rates are within the ranges provided as reasonable in Mr. Flem ing’s declaration.

3

4.3 hours x 400 per hour = $1720.

4

The m agistrate judge’s Report and Recom m endation concluded that plaintiff is “entitled to interest
from the date the parties filed their joint stipulation of liability for attorney’s fees.” (Doc. 202). However, the
parties joint stipulation and the order adopting the joint stipulation specifically provide for interest on the award
“from the date an actual am ount of fees and related nontaxable expense is entered by the Court, whether by
virtue of settlem ent or Court decision.” (Docs. 156 and 160). As such, interest on the award shall begin to
accrue from the date of entry of this order.
Case No: 1:07cv18-MP-GRJ

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$127,726.385 plus interest, at the federal rate, on the award from the date of entry of this
order.
DONE and ORDERED this 23rd day of March, 2012.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

5

This total represents $131,458.88 (the am ount plaintiff requested) m inus $4,025 (representing the
11.5 hours billed at the senior attorney rate of $350 per hour) plus $2,012.50 (the 11.5 hours at lesser rates)
m inus $1,720 (subtracted for late filed bill of costs entries).
Case No: 1:07cv18-MP-GRJ