BETA UPSILON CHI UPSILON CHAPTER AT THE UNIVERSITY OF FLORIDA v. MACHEN et al
Filing
407
ORDER GRANTING MOTION FOR ATTORNEY'S FEES: Plaintiffs' 383 Amended Motion for Attorney Fees is GRANTED. As the prevailing party under § 1988, BYX is awarded attorney's fees in the amount of $235,278.25 fo r work performed in this Court plus costs in the amount $1,237.59. For its work on the third appeal, BYX is awarded $29,443.75. The sum total of the attorney's fees and costs is $265,959.59. Clerk shall enter judgment stating, &qu ot;Judgment is entered in favor of Plaintiffs, Beta Upsilon Chi and the Beta Upsilon Chi Upsilon Chapter at the University of Florida, and against Defendants for attorney's fees and costs in the sum of $265,959.59, for which interest shall accrue as provided by law." Clerk shall close the case. Signed by JUDGE MARK E WALKER on 10/1/2014. (jws)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
BETA UPSILON CHI, UPSILON CHAPTER
AT THE UNIVERSITY OF FLORIDA, et al.,
Plaintiffs,
v.
CASE NO. 1:07cv135-MW/GRJ
J. BERNARD MACHEN, et al.,
Defendants.
_________________________________________/
ORDER GRANTING MOTION FOR ATTORNEY’S FEES
This case was reassigned to the undersigned judge on September 26, 2014. It comes
before this Court on Plaintiffs’ Amended Motion for Attorney’s Fees, ECF No. 383,
Defendant’s Opposition, ECF No. 384, and Plaintiffs’ Memorandum in Reply, ECF No.
385.
1. History of the Case and Prior Fee Awards
Plaintiffs are Beta Upsilon Chi, a Christian fraternal organization, and its local
chapter, the Beta Upsilon Chi Upsilon Chapter at the University of Florida (collectively
“BYX”). On July 10, 2007, BYX sued the president of the University of Florida and
other officials (collectively “the University”) for refusing to grant BYX status as a
registered student organization. Although student organizations are not required to
register in order to operate on campus, registered student organizations enjoy benefits—
such as eligibility to receive funding from student government, priority use of some
1
facilities, and access to recruiting resources—that are unavailable to non-registered
student organizations.
The University refused to register BYX because BYX did not allow women to join,
thus violating the University’s non-discrimination policy.1 After filing suit, BYX
established a chapter affiliation with a sorority, Theta Alpha, which resolved the
University’s concern about sex discrimination. Nevertheless, the University refused to
register BYX—this time for religious discrimination—because BYX limits its
membership and officer positions to students who affirm BYX’s religious doctrines and
agree to live by BYX’s code of conduct. BYX amended its complaint to address this new
reason for denial of registration, and filed a motion for preliminary injunction to require
the University to register BYX as a student organization.
The district judge denied the motion for preliminary injunction on May 29, 2008.
ECF No. 104. On June 6, 2008, BYX filed an interlocutory appeal and sought an
injunction pending appeal. ECF Nos. 115, 116. The district judge denied the injunction
pending appeal. ECF No. 138. On July 30, 2008, however, the Eleventh Circuit Court of
Appeals granted it. ECF No. 151.
After oral argument on the interlocutory appeal, on January 15, 2009, the University
amended its policy to allow a “student organization whose primary purpose is religious
1
The policy states that “[a] registered student organization may not discriminate
against a member or prospective member on the basis of race, color, religion, sex,
national origin, ancestry, age, marital status, disability, unfavorable discharge from the
military, or status as disabled veteran or veteran from the Vietnam era, except as
specifically exempted by law. Likewise, among the individual discrimination prohibited
by the University policy, but not by law, is sexual orientation.” ECF No. 46, 2d Am.
Compl., at ¶ 4.12.
2
… [to] limit[] membership and leadership positions to students who share the religious
beliefs of the organization.” ECF No. 206, at 14. In accordance with the amended policy,
the University registered BYX as a student organization, thereby providing BYX with the
relief sought in its complaint. As a result, the Eleventh Circuit dismissed the interlocutory
appeal as moot on October 27, 2009, and directed the district judge on remand to dismiss
the case as moot. Id. at 22.
After the dismissal of the appeal as moot, BYX filed a motion for appellate attorney
fees. The Eleventh Circuit granted the motion in part, finding that BYX was entitled to
“attorney fees for work performed in [the Eleventh Circuit] on [BYX’s] motion for
injunction pending appeal.” ECF No. 235. The Eleventh Circuit directed the district judge
to determine the amount of appellate fees to award. Id. BYX also filed with the district
judge a motion for attorney fees for work performed at the trial level. ECF No. 245.
In the district court, the University argued that BYX was not the prevailing party
because BYX obtained no relief on the merits and because the case was dismissed as
moot. ECF Nos. 244, 248. The district judge agreed. ECF Nos. 254, 259. In accordance
with the Eleventh Circuit’s instructions, however, the district judge awarded appellate
attorney fees to BYX in the amount of $7,081.44. ECF Nos. 263, 264. This amount was
agreed to by the parties.
BYX appealed the denial of trial level attorney’s fees to the Eleventh Circuit. The
Eleventh Circuit vacated the denial and remanded with instructions to award BYX trial
3
level fees as the prevailing party under § 1988.2 ECF No. 288. The Eleventh Circuit
explained that in granting the injunction pending appeal, it made a ruling on the merits of
BYX’s claim, thus making BYX the prevailing party despite the dismissal of the case as
moot. Id., at 5. The Eleventh Circuit also granted BYX’s motion for appellate attorney’s
fees and expenses for this second appeal, and remanded the case to the district judge to
determine the appropriate amount. ECF No. 304.
On remand, the parties agreed to an award of $22,000 for appellate attorney’s fees for
BYX’s second appeal, and the district judge awarded those fees. ECF No. 347. As for the
trial level attorney’s fees, however, the district judge accepted the University’s argument
that BYX’s award should be limited to work performed only on the motion for injunction
pending appeal. ECF Nos. 299,320. With this limitation in place, the parties agreed to an
amount of $6,632.50 for trial level attorney’s fees, plus the $7,081.44 for appellate
attorney’s fees for the first appeal, making a total award of $13,713.94. ECF No. 326.
BYX agreed to this amount but noted that it was not waiving its right to appeal the
district judge’s ruling limiting its attorney’s fees. ECF No. 326.
On BYX’s third appeal regarding the limitation of trial level attorney’s fees, the
Eleventh Circuit again vacated and remanded, explaining that the district judge erred “by
only awarding attorney’s fees to the prevailing party on one motion and by not taking into
account work proceeding this motion that is fundamentally required for [BYX] to become
a prevailing party—e.g. work on the complaint.” ECF No. 358, at 4. The Eleventh Circuit
2
Title 42, United States Code, Section 1988(b) allows the court, in its discretion, to
include a reasonable attorney fee as part of the costs awarded to a prevailing party in
certain civil rights cases.
4
noted that its order limiting BYX’s attorney fees for the first appeal to work on the
injunction simply reflected the fact that BYX was “only successful on appeal with respect
to the work on the injunction pending appeal and not with respect to other issues,
including the mootness issue.”3 Id. For the trial level fees, the Eleventh Circuit explained,
“the appropriate award should include other work performed by [BYX] in the district
court which was reasonably related to, and reasonably contributed to, the success
achieved—i.e. the grant of the injunction pending appeal.” Id. at 4-5. The Eleventh
Circuit vacated the district judge’s fee determination and remanded for further
proceedings. Additionally, the Eleventh Circuit granted BYX’s motion for appellate
attorney fees for their third appeal, with the amount to be determined by the district
judge. ECF No. 371.
The posture of this case now is as follows. BYX has been awarded $7,081.44 in
appellate attorney fees for the first appeal, ECF No. 264, and $22,000 in appellate
attorney fees for the second appeal, ECF No. 347. All of the other attorney fee awards
have been vacated by the Eleventh Circuit. The parties have already agreed that BYX is
entitled to $6,632.50 for work performed in this Court on the motion for injunction
pending appeal. At issue, therefore, are additional amounts to be awarded to BYX for (1)
work performed in the district court that was reasonably related to and reasonably
contributed to the granting of the injunction pending appeal, (2) other work performed in
the district court on the merits of its claims, which BYX contends it is entitled to receive
fee for, (3) work performed in the district court establishing BYX’s entitlement to and
3
BYX argued against dismissal on mootness grounds. The Eleventh Circuit
considered and rejected these arguments. ECF No. 206, at 15-23.
5
amount of attorney’s fees, and (4) work performed in the Eleventh Circuit on BYX’s third
appeal.
2. Summary of BYX’s Request and the University’s Arguments
BYX requests $252,256.25 in attorney’s fees. This amount represents all work
performed in the district court on the merits of its claim (even work that is not related to
and did not contribute to the granting of the injunction pending appeal). This amount also
includes work to establish BYX’s entitlement to, and amount of, attorney’s fees. BYX
also seeks $1,238.98 in non-taxable expenses and costs. BYX seeks additional attorney’s
fees in the amount of $34,267.50 for work performed on its third appeal.
The University argues that BYX’s request should be greatly reduced. The University
identifies areas of work—such as discovery and summary judgment—that it contends are
not reasonably related to the injunction pending appeal. Instead of identifying specific
hours to eliminate, however, the University argues for an across the board reduction
because the hours claimed by BYX are unreasonably high and the fee documentation is
too voluminous to make an hour by hour review. The University proposes to reduce
BYX’s hours by 80%.
The University also argues that the hourly rates for BYX’s lawyers should be reduced
to $175 to reflect the local market rate. As a result of these reductions, the University
argues that a fee award of $28,375 to BYX for work performed in the district court would
be appropriate. As for the appellate fees, the University contends that the fees should be
reduced by 50% to $17,133.75.
6
3. Success Obtained by BYX
Normally, a prevailing party who obtains full relief is entitled to compensation for
“all hours reasonably expended in the litigation ….” Hensley v. Eckerhart, 461 U.S.424,
435 (1983). BYX contends that it obtained full relief and that all of its hours were
reasonably expended. Therefore, BYX argues, no reduction should be made for limited
results. In fact, BYX notes that when the Eleventh Circuit ruled that the case should be
dismissed as moot, it did so because BYX had “received the relief sought in its
complaint.” ECF No. 206, at 16.
According to the University, the clear instructions from the Eleventh Circuit require
that BYX not be awarded any fees for work performed after the July 30, 2008 injunction
pending appeal. The University contends that work performed afterward cannot be
“reasonably related to, [or be deemed to have] reasonably contributed to, the success
achieved—i.e. the grant of the injunction pending appeal.” ECF No. 358, at 4-5. The
University also argues that BYX’s fees should be further reduced because the success
BYX obtained was limited. According to the University, its decision to voluntarily amend
its policy on January 15, 2009 to allow BYX to register as a student organization should
not be considered part of the success BYX achieved because only court-ordered relief can
support a fee award.
The University cites to the Supreme Court’s decision in Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of HHR, 532 U.S. 598 (2001). In Buckhannon, the United
States Supreme Court rejected the “catalyst theory” and ruled that a party cannot obtain
prevailing party status when the relief it obtains comes through a defendant’s voluntary
7
change in conduct in response to a lawsuit. Id. The Court explained that a “judicial
imprimatur,” in the form of a judgment on the merits or a consent decree or similar
judicial relief, is necessary to establish prevailing party status. Id. at 601, 605.
This Court need not consider the University’s argument under Buckhannon, however,
because the Eleventh Circuit has already determined that BYX is the prevailing party.
The Eleventh Circuit plainly stated, BYX is the “prevailing part[y[ under § 1988 and …
entitled to reasonable attorney’s fees.” ECF No. 288. Furthermore, because the
University’s policy change was not so much a response to BYX’s lawsuit itself, but came
after the Eleventh Circuit granted an injunction on the merits, it is appropriate to consider
the University’s policy change in assessing the success BYX obtained.4 Indeed, the
Eleventh Circuit did not limit the scope of fees to work that related to and contributed to
the injunction pending appeal, but instead stated that “the appropriate award should
include” such work. ECF No. 358 at 4.
With that in mind, this Court turns to the calculation of the lodestar figure,5 starting
with the reasonably hourly rates for BYX’s attorneys.
4
See Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008)
(“Buckhannon does not stand for the proposition that a defendant should be allowed to
moot an action to avoid payment of the plaintiff’s attorney’s fees when a district court
grants a preliminary injunction based upon an unambiguous indication of probable
success of the merits.”); Tri-City Comty. Action Program v. City of Malden, 680 F. Supp.
2d 306, 315 (finding plaintiffs to be the prevailing party because “[t]he preliminary
injunction was responsible for the entirety of the changes that rendered the case moot”).
5
The lodestar figure is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. Norman v. Hous. Auth. of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988). The lodestar figure is the presumed reasonable fee.
Blum v. Stenson, 465 U.S. 886, 897 (1984).
8
4. Hourly Rates
BYX claims the following hourly rates for its attorneys:6
$425
Kimberlee W. Colby, Center for Law & Religious Freedom,
practicing law since 1981, specializing in religious liberties
issues. ECF No. 383-2, at 7-24.
$400
Jeffrey A. Schafer, Alliance Defense Fund,7 practicing law
since 1997 and specializing in free speech and religious
liberties issues since 2005. ECF No. 383-2, at 21-24.
$400
Gregory S. Baylor, Center for Law & Religious Freedom,
Alliance Defense Fund, practicing law since 1990, specializing
in civil liberties issues. ECF No. 295-2, at 1-9.
$400
Steven H. Aden, Center for Law & Religious Freedom, Alliance
Defense Fund, practicing law since 1989 and working on civil
and religious liberties litigation since 1997.ECF No. 295-1, at
1-8.
$325
Timothy J. Tracey, Center for Law and Religious Freedom,
Alliance Defense Fund, practicing law since 2002 working on
civil liberties issues. ECF No. 295-8, at 1-4.
$275
Roger K. Gannam, Lindell & Farson, P.A., practicing law since
2000 working on complex commercial and class action
litigation, and later expanding practice to include religious
liberty cases. ECF No. 383-2, at 16-20.
$200
Isaac J. Fong, Center for Law & Religious Freedom, practicing
law since 2007 working on religious liberties issues, ECF No.
295-4, at 1-4.
$200
Julie M. Gugino (no information)
6
Four paralegals (Gretchen Nutz of the Center for Law & Religious Freedom, Amy
Botello of Alliance Defense Fund, Anna Hayes of Alliance Defending Freedom, and
Amanda Rossiter of Alliance Defending Freedom) also worked on this case. BYX seeks
compensation for the paralegals’ work at an hourly rate of $75. See Doc. 383-1 at 3. The
University is not challenging these rates. The rates are in line with the rates charged by
paralegals in the Northern District of Florida.
7
The Alliance Defense Fund is now known as Alliance Defending Freedom. ECF No.
383-2, at 22 ¶ 4.
9
$150
R. Scott Taylor (no information)
This Court approves these rates. The $200 and $150 rates charged for Gugino and
Taylor are standard for this district for new associates. The higher rates for the other
attorneys are in line with the hourly rates found reasonable for similarly experienced
lawyers specializing in First Amendment litigation in the Northern District of Florida.8
Although BYX’s attorneys are located outside of the Northern District, their rates are
consistent with the rates charged by attorneys of similar skill in similar cases in the
Northern District. The rates do not differ from the local rate.
The University argues that most of the attorneys’ work was performed in 2007 and
2008, and therefore a 2007 and 2008 local rate, which the University calculates as $175,
should be used.9 It is appropriate in this case, however, to apply current rates to account
8
See Am. Civil Liberties Union of Fla., Inc. v. Dixie Cnty., Case No. 1:07-cv-00018MP-GRJ, 2012 WL 384925, at *2, (N.D. Fla. Feb. 6, 2012) (Am. Report and
Recommendation, Jones, Mag. J.) (finding $400 and $450 rate for experienced First
Amendment lawyers reasonable) adopted in part by, 2012 WL 1004372, (March 23,
2012) (Rodgers, C.J.) vacated to determine standing. See also, Plaintiff B. v. Francis, No.
5:08cv79-RS/AK, 2009 WL 2913476, at *2 (N.D. Fla. Sept. 9, 2009) (finding $450 per
hour rate reasonable in complex civil case for attorneys with over 30 years of
experience).
9
The University cites to the Florida Bar’s 2008 survey to support its contention
that the prevailing local rate is $175 per hour. ECF No. 384, at 14. The 2008 survey
reflects the average rate for all attorneys responding to the survey and does not take into
account an attorney’s experience and practice area. Nevertheless, the results of a more
recent survey in 2012 shows that 66% of the lawyers in the region comprising the
Northern District of Florida charge an hourly rate of more than $200, and 14% charge
more than $300. The Florida Bar, Results of the 2012 Econ. and Law Office Mgmt.
Survey, at 8, (Feb.2013); https://www.floridabar.org/tfb/TFBOrgan.nsf/043adb7797c8b
9928525700a006b647f/197544daea4b3cda852571f500610583?OpenDocument. The
2012 survey, as well as this Court’s own knowledge of the fees charged in cases of
similar complexity by lawyers of similar experience, supports the current hourly rates
requested by BYX.
10
for the delay in receiving payment. Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1045
(11th Cir. 2010).The litigation in this case has been protracted. It involved an
extraordinary outlay of hours that included not only work on the initial case and an
interlocutory appeal, but two additional appeals regarding attorney’s fees. To compensate
for the exceptional and unanticipated delay in payment, it is appropriate to use current
rates for the fee calculation. Id. Therefore fees based on current rates will be awarded.
5. Number of Hours Reasonably Expended
The total number of hours claimed by BYX for each of its attorneys and paralegals is
as follows:
Timothy J. Tracey
520.73 hours
Roger K. Gannam
93.5 hours
Kimberlee W. Colby
62.44 hours
Jeffrey A. Shafer
17.5 hours
Gregory S. Baylor
12.8 hours
Steven H. Aden
2.7 hours
Isaac J. Fong
10.6 hours
Julie M. Guigino
28.9 hours
R. Scott Taylor
1.6 hours
Gretchen Nutz
133.5 hours
Amy Botello
12.7 hours
Anna Hayes
2.0 hours
Amanda Rossiter
57.8 hours
A review of the hours shows that Attorney Timothy J. Tracey performed almost all of
the work on the merits of the case. Attorney Roger K. Gannam performed most of the
11
work on the attorney fee issues. Paralegals assisted with research and in compiling
records. The other attorneys reviewed, coordinated and supervised; and thus expended far
fewer hours.
To aid with review, the hours are broken down to show the work performed in
different stages of this case.
a.
from the initiation of the case to the 7/30/08 order granting
the injunction pending appeal
Most of the hours expended in this stage of the case involved the merits of the claim.
Timothy J. Tracey
$325
Kimberly W. Colby
$425
Gregory S. Baylor
$400
Steven H. Aden
$400
Isaac J. Fong
$200
519.43 hours conferring with co-counsel; preparing
complaint, amended complaint, and preliminary injunction;
preparing joint report for discovery; preparing fee and cost
records; preparing responses to interrogatories and
document requests; preparing for and conducting
depositions; preparing motion for summary judgment. ECF
No. 383-1, at 24-44.
15.1 hours reviewing the preliminary injunction, amended
complaint, and the University’s answer. ECF No. 383-1, at
6.
7.2 hours, coordinating with attorneys, reviewing complaint
and preliminary injunction, preparing for argument on
preliminary injunction. ECF No. 383-1, at 18-20.
2.7 hours reviewing complaint and amended complaint.
ECF No. 383-1, at 23.
10.6 hours conducting legal research, conferring with
counsel, helping to prepare for arguments on preliminary
injunction. ECF No. 383-1, at 54.
12
Gretchen Nutz
$75
95.5 hours, researching procedural and substantive issues;
reviewing, preparing, organizing, and filing documents;
preparing attorney admission materials. 383-1, at 58-65.
The total number of hours expended at this stage of the case is 650.53. These hours
were reasonably expended in the litigation and will be considered in arriving at the
lodestar figure.
b.
from the 7/30/08 injunction pending appeal to the 10/27/09 dismissal
None of the hours claimed in this period relate to the merits of the case. Instead, the
hours were spent reviewing and preparing time records and conferring with co-counsel
and the client.
Timothy J. Tracey
$325
Gregory S. Baylor
$400
Jeffrey A. Shafer
$400
Gretchen Nutz
$75
Amy Botello
$75
1.4 hours preparing and reviewing time records,
corresponding with co-counsel and clients.
ECF No. 383-1, at 44.
.5 hours conferring with co-counsel concerning
draft bill of costs, time records, and withdrawal of
Timothy J. Tracey and Issac J. Fong. ECF No. 3831, at 21.
.1 hours reviewing notice of appearance. ECF No.
383-1, at 15
7 hours preparing and filing time records;
preparing attorney admission materials and notice
of appearance. ECF No. 383-1, at 58, 62.
5.3 hours preparing and reviewing time records.
ECF No. 383-1, at 66.
13
Amanda Rossiter
$75
2 hours preparing, reviewing, and filing time
records; preparing attorney admission materials.
ECF No. 383-1, at 70.
The total number of hours expended at this stage is 16.3. This Court will deduct the .1
hour spent by attorney Jeffrey Shafer reviewing a notice of appearance. Shafer completed
no compensable work on the merits of the case either at this stage of the litigation or in
the prior stage. The other time claimed appears to be reasonable and will be used to
calculate the loadstar.
c.
after the 10/29/09 dismissal to establish entitlement and
amount of fees at the trial level
Roger K. Gannam
$275
Kimberlee W. Colby
$400
Jeffrey A. Shafer
$400
Gregory S. Baylor
$400
93.5 hours reviewing bill of costs and the
University’s objections; conferring with opposing
attorney and co-counsel; reviewing orders and
appellate opinions; preparing motions and memos
for attorney’s fees. ECF No. 383-1, at 4550.
47.34 hours communicating with co-counsel
regarding fee petition, time records, settlement
negotiations; researching 11th Circuit case law on
§ 1988 fee awards; reviewing filings and revising
declarations. ECF No. 383-1, at 6-11.
17.4 hours reviewing time records for filing;
reviewing appellate decision; conferring with cocounsel; reviewing and revising declarations and
motions; reviewing memoranda. ECF No. 383-1,
at 14-16.
5.1 hours communicating with co-counsel
regarding time records; reviewing time and cost
records; reviewing clerk’s denial of costs and
14
district court’s order denying reconsideration;
communicating with client. ECF No. 383-1, at 1819, 21-22.
Gretchen Nutz
$75
Amy Botello
$75
Anna Hayes
$75
Amanda Rossiter
$74
30.7 hours drafting motions to withdraw for
Timothy J. Tracey and Isaac J. Fong; conferring
with counsel; researching local rules and
procedures for appeal; preparing bill of costs;
collecting and organizing time records; assisting
counsel with declarations. ECF No. 383-1, at 58,
62-65.
7.4 hours preparing and filing time records. ECF
No. 383-1, at 66-67.
2 hours preparing and filing time records. ECF No.
383-1, at 68.
55.8 hours preparing and filing time records;
preparing motion to withdraw for Timothy J.
Tracey; communicating with counsel concerning
time records; organizing time records; revising
declarations.
The total number of hours expended at this stage is 258.24. The only specific time
entries the University objects to are those related to taxable costs. ECF No. 384, at 17 n.6.
Compensation for these entries will be denied because BYX did not prevail on its claim
for taxable costs. ECF Nos. 246, 254; Norman, 836 F.2d at 1302 (“district court must
deduct time spent on discrete and unsuccessful claims). This Court further finds that the
time spent by attorneys Colby, Shafer, and Baylor was excessive considering the
assistance provided by four the paralegals, and Gannam’s role in actually preparing the
motions and memoranda, and the fact that these attorneys were no longer operating in
15
their field of expertise in First Amendment law but supervising Gannam’s work to
establish attorney’s fees. Accordingly, their time will be reduced by 50%.
d.
appellate fees for the third appeal
Roger K. Gannam
$275
Kimberlee W. Colby
$425
Jeffrey A. Shafer
$400
Julie M. Gugino
$200
R. Scott Taylor
$175
Anna Hayes
$75
Amanda Rossiter
$75
66 hours preparing briefs; reviewing rules,
documents, fee declarations. ECF No. 383-1, at
51-53.
11.5 hours reviewing briefs, research, opinion, and
time records; conferring with co-counsel; drafting
changes. ECF No. 383-1, at 12-13.
11.3 hours reviewing order, briefs, research, and
time records; conferring with counsel. ECF No.
383-1, at 16-17.
28.9 hours researching issues, conferring with cocounsel, revising fee declarations. ECF No. 383-1,
at 57.
1.6 hours Shepardizing cases. ECF 383-1, at 57.
1.4 hours drafting declarations and coordinating
filings. ECF No. 383-1, at 69.
7.8 hours reviewing and compiling time records;
drafting declarations; conferring with counsel and
paralegals. ECF No. 383-1, at 78.
The University argues that the hours expended by BYX on the appeal were excessive
and the result of overstaffing. Here again, the time spent by attorneys Colby and Shafer
reviewing the work performed by attorney Gannam is excessive. This Court will
16
therefore reduce their time by 50%. This Court will also reduce the hourly rate charged
by Attorney Taylor for Shepardizing cases to $75 because the task could have been
performed by a paralegal and otherwise appears excessive. Alternatively, this Court
could have simply cut his hours in half as excessive. All other hours at the rates charged
will be used to calculate the loadstar.
e.
Nontaxable costs
Finally, BYX seeks $1,283.98 in nontaxable costs. ECF No. 383-1, at 79-85. The
University notes several problems with the cost statement, to which BYX has failed to
respond. ECF No. 384, at 14-15.
In an effort to understand the charges, this Court has reviewed them in relation to the
time records of attorney Timothy J. Tracey. ECF No. 383-1, at 37, 39. Aside from postage
and PACER charges, most of the costs relate to travel to Gainesville, Florida on March
12, 2008 for a hearing on BYX’s motion for preliminary injunction, ECF Nos. 92; 383-1,
at 37, and travel to depose officials at the University on April 30 through May 1, 2008,
ECF 383-1, at 39.
Aside from the redundant entries for $ 21.34 in shipping charges on 7/10/2007 and
$3.71 for travel food on 5/1/2008, this Court finds that the costs were reasonably incurred
and are recoverable under § 1988. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1192
(11th Cir. 1983).
17
6.
Timekeeper
Timothy J.
Tracey, $325
Roger K.
Gannam, $275
Kimberlee W.
Colby, $425
Jeffrey A.
Shafer, $400
Gregory S.
Baylor, $400
Steven H.
Aden, $400
Isaac J. Fong,
$200
Gretchen
Nutz, $75
Lodestar for District Level Fees
before
7/30/08
519.43
7/30/08 to
10/27/09
1.4
after 10/27/09
Total Time
Award
0
520.73
$169,237.25
0
0
87.710
87.7
$24,117.50
15.1
0
22.9211
38.02
$16,158.50
0
012
8.713
8.7
$3,480.00
7.2
0.5
2.5514
10.25
$4,100.00
2.7
0
0
2.7
$1,080.00
10.6
0
0
10.6
$2,120.00
95.5
7
26.815
129.3
$9,697.50
10
Gannam claimed 93.5 hours for this period, but this Court has subtracted 5.8 hours
for time entries for work on taxable costs. ECF No. 383-1, at 45, 48 (10/8/10 (0.5),
11/9/10 (0.4), 12/7/11 (1.3), 2/1/12 (0.8), 2/1/12 (1.9), 2/2/12 (0.3), 10/5/10 (0.1), 7/25/12
(0.2), 7/25/12 (0.1), 7/25/12 (0.1), 7/25/12 (0.1)).
11
Colby claimed 47.34 hours for this period, but this Court has subtracted 1.5 hours
for time entries for work on taxable costs. ECF No. 383-1, at 7 (10/8/10 (0.2), 11/4/10
(0.3), 11/5/10 (0.3), 11/8/10 (0.2), 12/17/10 (0.5)). Then this Court divided the time in
half because the hours are excessive.
12
Shafer claimed 0.1 hours for this period for reviewing notice of appearance
documents, but this Court struck this time as unnecessary.
13
Shafer claimed 17.4 hours for this period, but this Court divided the time in half
because the hours are excessive.
14
Baylor claimed 5.1 hours for this period, but this Court divided the time in half
because the hours are excessive.
15
Nutz claimed 31 hours for this period, but this Court has subtracted 4.2 hours for
time entries for work on taxable costs. ECF No. 383-1, at 63 (10/6/10 (0.3), 10/7/10 (0.8),
10/7/10 (2), 11/5/10 (1)).
18
Amy Botello,
$75
Amanda
Rossiter, $75
0
5.3
7.4
12.7
$952.50
0
2
55.8
57.8
$4,335.00
TOTAL
$235,278.25
The lodestar totals to $235,278.25. This Court finds no reason to make additional
alterations given the reductions already made for discrete, unsuccessful claims and
excessive hours.
7. Lodestar for Appellate Fees
Timekeeper
Roger K. Gannam, $275
Kimberlee W. Colby, $425
Jeffrey A. Shafer, $400
Julie M. Gugino, $200
R. Scott Taylor, $7518
Anna Hayes, $75
Amanda Rossiter, $75
Hours
66
5.7516
5.6517
28.9
1.6
1.4
7.8
TOTAL
Total
$18,150.00
$2,443.75
$2,260.00
$5,780.00
$120.00
$105.00
$585.00
$29,443.75
This Court finds no reason to alter the lodestar figure for appellate attorney fees given
the specific reduction for excessive hours already made.
16
Colby claimed 11.5 hours, but this Court has divided the time in half because the
hours are excessive.
17
Shafer claimed 11.3 hours, but this Court has divided the time in half because the
hours are excessive.
18
Taylor claimed an hourly rate of $175. Although this rate is reasonable for an
attorney to charge, because Taylor performed work (Shepardizing cases) that a paralegal
could do, his work should be billed at the paralegal rate.
19
8. Nontaxable Costs
Finally, BYX claims $1,283.98 in nontaxable costs. This Court will subtract $42.68
($21.34 x 2) for the two redundant entries on 7/10/07 and $3.71 or the redundant entry on
5/1/08. ECF No. 383-1, at 79, 80. This leaves $1,237.59 in appropriate, nontaxable costs.
For these reasons,
IT IS ORDERED:
1. Plaintiffs’ Amended Motion for Attorney’s Fees, ECF. No. 383, is GRANTED.
2. As the prevailing party under § 1988, BYX is awarded attorney’s fees in the
amount of $235,278.25 for work performed in this Court plus costs in the amount
$1,237.59. For its work on the third appeal, BYX is awarded $29,443.75. The sum total
of the attorney’s fees and costs is $265,959.59.
3. The Clerk shall enter judgment stating, “Judgment is entered in favor of Plaintiffs,
Beta Upsilon Chi and the Beta Upsilon Chi Upsilon Chapter at the University of Florida,
and against Defendants for attorney’s fees and costs in the sum of $265,959.59, for which
interest shall accrue as provided by law.” The Clerk shall close the case.
SO ORDERED on October 1, 2014.
s/Mark E. Walker
United States District Judge
20
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