Club Madonna Inc v. City of Miami Beach

Filing 199

ORDER granting in part 118 Defendant's Motion for Attorneys' Fees. Signed by Magistrate Judge Jonathan Goodman on 5/18/2023. See attached document for full details. (dw00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 16-25378-CIV-MORENO/GOODMAN
CLUB MADONNA, INC.,
Plaintiff,
v.
CITY OF MIAMI BEACH,
Defendant.
_____________________________/

ORDER ON DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
Club Madonna, Inc. (“Club Madonna” or the “Club”), a liquor-free adult club
featuring fully-nude female dancers, filed suit against the City of Miami Beach (the
“City”). The lawsuit concerns administrative action taken by the City against Club
Madonna, including an emergency closure of Club Madonna, and a subsequent
ordinance (the “Ordinance”) that was enacted after police discovered that a thirteen-yearold girl, who was a sex trafficking victim, was dancing at Club Madonna. Senior United
States District Judge Federico A. Moreno entered Final Judgment in favor of the City and
against Club Madonna on Counts I-XII and XIV-XVI, and in favor of Club Madonna on
Count XIII. [ECF No. 170]. On appeal, the Eleventh Circuit affirmed on all counts. Club
Madonna Inc. v. City of Miami Beach, 42 F.4th 1231 (11th Cir. 2022) (hereinafter, “Club
Madonna II”).

Following the Eleventh Circuit’s decision, the City filed a Motion for Attorneys’
Fees pursuant to 42 U.S.C. § 1988(b), seeking the fees incurred defending Counts I-VI,
VIII-XII, and XIV. [ECF No. 188]. The Club filed a response [ECF No. 192] and the City
filed a reply [ECF No. 197]. Judge Moreno referred the matter to the Undersigned to
“submit an Order.” [ECF No. 189]. Neither party has objected to the nature or scope of
the referral.
For the reasons discussed below, the Undersigned grants in part Defendant’s
Motion for Attorneys’ Fees. As will be explained below, this ruling will require Defendant
to resubmit its billing records (to eliminate entries for time incurred on claims not deemed
frivolous here) and will also require the parties to engage in an additional conferral.
I.

Background and Count Disposition
In the decision affirming this Court’s summary judgment ruling, the Eleventh

Circuit summarized the factual and procedural background as follows:
The story of this case starts with a tragic set of facts. On January 6, 2014,
City law enforcement officers discovered that a thirteen-year-old victim of
human trafficking was being forced to dance nude at the Club after she ran
away from home and was taken by four adult captors. The City issued an
emergency order that suspended the Club's occupational licenses for six
months, but it reinstated the licenses after the Club agreed to issue written
security standards, hire a Chief Compliance Officer, check at least two
forms of identification before letting a performer dance, and maintain
records of which performers could dance at the Club.
This detente ended quickly. The Club repeatedly failed to follow its
agreement with the City, and the City was not pleased. To put teeth in its
regime, the City passed the Ordinance. We previously described the
Ordinance's requirements this way:
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First, Section 18-913 requires nude dancing establishments
such as the Club to check the age and work eligibility of “any
worker or performer” by requiring that they “provide proof
of an original, lawfully issued state or federal photo
identification, and one additional form of identification.” The
owner or manager of the establishment must also “[v]erify the
accuracy” of the documents by making a “sworn statement ...
confirming that the individual performer is at least 18 years
of age.” In the same sworn statement, the owner or manager
must “[c]onfirm” that the worker is “performing of her or his
own accord, and is not being forced or intimidated into
performing or working.” Code of the City of Miami Beach §
18-913. Section 18-913 also requires the business to keep a log
of workers as they enter and exit the premises and to make all
of the required documentation available “for inspection by
the city upon demand.” Id.
***
Finally, Section 18-915 describes the penalties for failure to
comply with the requirements of Sections 18-913.... For a first,
second, and third offense within specified time periods, a
business shall be fined $5,000, $10,000, and $20,000,
respectively. For a second offense within three years, the City
will shut down the business for three months. And a third
offense allows the City to exercise its discretion to close the
business for up to a year. Code of the City of Miami Beach §
18-915. An establishment charged with violating the
ordinance has a right to an administrative hearing and may
appeal the decision to “a court of competent jurisdiction.” Id.
Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1376 (11th Cir. 2019)
(hereinafter “Club Madonna I”). Along with verifying that the performer or
worker is at least eighteen years old, the Ordinance requires that nude
dancing establishments confirm she “[i]s either a U.S. Citizen, legal
resident, or otherwise legally permitted to be employed within the United
States of America.” Code of the City of Miami Beach § 18-913(1)(b).
II.
3

Unhappy with this development, the Club sued the City of Miami Beach in
the Southern District of Florida on December 30, 2016, challenging the
constitutionality of the Ordinance and the City's use of its emergency
powers to suspend the Club's business license. In its Complaint, the Club
threw the kitchen sink at the Ordinance: It challenged the Ordinance under
the First Amendment, the Fourth Amendment, the Fourteenth Amendment
(raising both Due Process Clause and Equal Protection Clause claims), and
the Eighth Amendment, and on Contract Clause and Supremacy Clause
grounds. The City moved to dismiss on many grounds (including failure to
state a claim, standing, mootness, and ripeness), and the district court
granted the City's motion. The Club appealed to this Court, and we
affirmed in part and reversed in part, reinstating the Club's First
Amendment, unconstitutional tax, Contract Clause, Equal Protection
Clause, federal preemption, state preemption, and Fourth Amendment
claims because they were ripe for adjudication. Club Madonna I, 924 F.3d at
1383. On remand, the City again moved to dismiss the Club's claims, and
after referring them to the magistrate judge, the district court granted the
City's motion only for the Club's unconstitutional tax, Equal Protection
Clause, Contract Clause, and state preemption claims, leaving the Club's
First Amendment (Count VII), federal preemption (Count XIII), and Fourth
Amendment (Count XVI) claims to be resolved at summary judgment.
Like the City's renewed Motion to Dismiss, the district court referred the
Motion for Summary Judgment to the magistrate judge. The magistrate
judge, in his Report and Recommendation (“R&R”), concluded that the
Ordinance (1) violated the Club's First Amendment rights because it
overburdened the Club's protected speech; (2) violated the Club's Fourth
Amendment rights because, although the Club's business fell into the
category of a closely regulated industry, the Ordinance's unfettered
warrantless-search provision was unnecessary to further the City's interest
in preventing human trafficking; and (3) was conflict preempted by the
Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. § 1324a et
seq., because the federal statute excludes independent contractors and
casual hires from the requirement that any worker or performer is “legally
permitted to be employed within the United States[.]”
After receiving objections to the R&R, the district court ruled on the parties'
cross-motions for summary judgment. Although the district court adopted
the magistrate judge's findings on the Club's federal preemption claim, the
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district court declined to adopt his conclusions about the Club's First and
Fourth Amendment claims.
The court began by rejecting the R&R's conclusions about the Club's First
Amendment claim. First, it determined that the First Amendment did not
apply at all because the Ordinance did not target expressive conduct. Citing
the Supreme Court's decision in Arcara v. Cloud Books, 478 U.S. 697, 106 S.
Ct. 3172, 92 L.Ed.2d 568 (1986), the district court reasoned that since the
Ordinance does not single out First Amendment expression, the First
Amendment does not apply -- even if the law has incidental effects on the
Club's freedom of expression. The court also explained that even if the
Ordinance had targeted expressive conduct, it was narrowly tailored and
not overly burdensome. The district court concluded that the Ordinance
was a reasonable time, place, and manner restriction on the Club's protected
activities under the First Amendment.
Second, the trial court also rejected the magistrate judge's determination
about the Club's Fourth Amendment claim. For starters, it reasoned that
nude dancing clubs are closely regulated for Fourth Amendment purposes
because of their history of pervasive regulation. The court also found that
the Ordinance's warrantless-search provision was constitutionally
reasonable under the administrative-search test the Supreme Court
articulated in New York v. Burger, 482 U.S. 691, 702, 107 S. Ct. 2636, 96
L.Ed.2d 601 (1987), because surprise inspections were necessary to ensure
the Club complied with the Ordinance, and the certainty and regularity of
the Ordinance's application provided an adequate constitutional substitute
for a warrant.
Finally, the district court concluded that the requirement the Club verify
that the performer or worker is a “U.S. Citizen, legal resident, or otherwise
legally permitted to be employed within the United States of America” is
conflict preempted under the Immigration Reform and Control Act of 1986.
The district court reasoned that Congress deliberately intended to exempt
casual hires and independent contractors from the IRCA, so the City could
not enact an ordinance that requires the verification of employment
eligibility of all workers.
Club Madonna II, 42 F.4th at 1238–41 (footnote omitted).
II.

Legal Standard
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Typically, under the “American Rule,” “each party bears its own attorney’s fees.”
Pedraza v. United Guar. Corp., 313 F.3d 1323, 1331 (11th Cir. 2002) (acknowledging “the
general applicability of the American Rule regarding fee shifting, i.e., that each party
bears its own attorneys' fees”); Panama Shipping Lines, Inc. v. Ciramar Int'l Trading, Ltd.,
No. 08-21213-CIV, 2009 WL 812714, at *3 (S.D. Fla. Mar. 26, 2009) (“The American Rule
stands for the proposition that the prevailing litigant is ordinarily not entitled to collect a
reasonable attorneys' fee from the loser.’”). Thus, “absent statute or enforceable contract,
litigants pay their own attorneys’ fees.” Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421
U.S. 240, 257 (1975).
The party seeking attorney’s fees bears the burden of establishing entitlement via
statute or enforceable contract. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also ACLU
of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (“[F]ee applicant bears the burden of
establishing entitlement and documenting the appropriate hours and hourly rates.”
(quoting Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)). And
“[b]ecause the right to attorney's fees must be found in a contract or statute, the specific
text of the contractual or statutory provision granting the right is critical to determining
an award of fees.” Cabrera v. Haims Motors, Inc., No. 17-CV-60500, 2018 WL 2455438, at *2
(S.D. Fla. June 1, 2018), report and recommendation adopted, No. 17-CIV-60500, 2018 WL
4409844 (S.D. Fla. June 19, 2018) (citing Fla. Med. Ctr. v. McCoy, 657 So. 2d 1248, 1250 (Fla.
4th DCA 1995)).

6

In a section 1983 civil rights lawsuit, by statute, “the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee.” 42
U.S.C. § 1988(b). Although the statute does not provide different standards for awarding
fees based on the identity of the prevailing party, the Supreme Court, relying on policy
considerations and legislative history, has directed that district courts apply a different
standard -- depending on whether the prevailing party is a plaintiff or a defendant.
A prevailing plaintiff is virtually always entitled to attorney’s fees, “unless special
circumstances would render such an award unjust.” Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402 (1968).
A prevailing defendant, however, may recover fees only “upon a finding that the
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); see also Sullivan v. School Bd. of Pinellas Cnty., 773 F.2d 1182, 1188-89 (11th Cir. 1985).
Importantly, in determining a prevailing defendant’s entitlement to attorney’s fees, the
district court must avoid a post hoc analysis (i.e., looking at whether the plaintiff
ultimately prevailed) and instead determine whether, at the outset, the plaintiff had “an
entirely reasonable ground for bringing suit.” Christiansburg, 434 U.S. at 422; see also Jones
v. Tx. Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). In other words, “[t]he plaintiff’s
action must be meritless in the sense that it is groundless or without foundation. The fact
that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the

7

assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (applying the Christiansburg
standard to a Section 1983 action).
The Eleventh Circuit has identified several relevant factors for courts to consider
on a § 1983 defendant’s motion for fees, including “(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.” Sullivan, 773 F.2d
at 1189. In a recent decision, the Eleventh Circuit recognized that its earlier precedent
required an additional consideration: “whether there was enough support for the claim to
warrant close attention by the court.” Beach Blitz Co. v. City of Miami Beach, Fla., 13 F.4th
1289, 1302 (11th Cir. 2021) (emphasis added) (citing Busby v. City of Orlando, 931 F.2d 764,
787 (11th Cir. 1991). Even so, an award of fees is permissive, not mandatory, and the
standards outlined above exist to “guide the district court’s exercise of discretion.”
Johnson v. Fla., 348 F.3d 1334, 1350 (11th Cir. 2003).
Naturally, lack-of-merit determinations must be made on a case-by-case basis and
will depend on the cause of action asserted, the preexisting legal framework, and the facts
known or available to the plaintiff in a given lawsuit. Sullivan, 773 F.2d at 1189. Thus,
whether the plaintiff had reasonable grounds for bringing suit will depend on the state
of the law and the facts known to the plaintiff before filing suit in a particular case. See id.
When a lawsuit raises unsettled questions of law upon which reasonable jurists
may disagree, a prevailing defendant should not be awarded fees. See Sherman v. Babbitt,

8

772 F.2d 1476, 1478 (9th Cir. 1985); Tarter v. Raybuck, 742 F.2d 977, 988 (6th Cir. 1984).
When, however, the plaintiff institutes a lawsuit to re-litigate previously adjudicated
issues or assert a claim that is legally groundless in view of settled law, a prevailing
defendant may recover reasonable attorney’s fees. See, e.g., Head v. Medford, 62 F.3d 351,
355-56 (11th Cir. 1995) (reversing the district court’s refusal to award fees when the
plaintiff’s claim was based on establishing a “nonexistent property interest [that was]
legally groundless” in view of settled law); Carrion v. Yeshiva Univ., 535 F.2d 722, 726-29
(2d Cir. 1976) (affirming fees award when plaintiffs sued in federal court after
“substantially the same” issues were decided in state court and noting that “in view of
the failure of the previous litigation” the plaintiff’s counsel had reason to be aware that
an award of fees was possible) (emphasis added).
Finally, the Eleventh Circuit has noted that fees are traditionally awarded when
the plaintiff fails to introduce any evidence in support of his claim. Sullivan, 773 F.2d at
1189. On the other hand, so long as the plaintiff introduces some evidence in support of
his claim, the action will generally not be considered frivolous for fees purposes. Id.
III.

Analysis
A.

Introduction

Before turning to the specifics of Defendant’s count-based fee requests, the
Undersigned will address three general arguments raised by Plaintiff. First, Plaintiff
contends that no recovery is permitted because Defendant is not the “prevailing party”

9

for purposes of a fee award. [ECF No. 192]. Second, Plaintiff argues that the “Law of the
Case” doctrine “precludes any finding that Club Madonna’s claims are frivolous in any
respect.” Id. Third, Plaintiff says that Defendant did not properly request the fees related
to Count XIV. Id. The Undersigned will address each of these arguments in turn.
The Complaint contains sixteen counts. [ECF No. 1]. Of those sixteen counts,
thirteen were dismissed, the Court granted summary judgment in Defendant’s favor on
two counts, and Plaintiff prevailed at summary judgment on a single count. Because
Plaintiff prevailed on the one Federal preemption count, which it says “clearly changed
the parties’ legal relationship and benefitted Club Madonna[,]” Plaintiff argues that
“Defendant did not prevail and cannot recover fees as a prevailing party.”1 [ECF No. 192].
This argument, however, ignores well settled Supreme Court precedent on this
issue:
In [Hensley v. Ekerhart], we noted the possibility that a plaintiff might prevail
on one contention in a suit while also asserting an unrelated frivolous claim.
In this situation, we explained, a court could properly award fees to both
parties—to the plaintiff, to reflect the fees he incurred in bringing the
meritorious claim; and to the defendant, to compensate for the fees he paid
in defending against the frivolous one. See [461 U.S. 424 at 435, n. 10, 103 S.
Ct. 1933 (1983)]. We thus made clear that a court may reimburse a defendant
for costs under § 1988 even if a plaintiff's suit is not wholly frivolous. Feeshifting to recompense a defendant (as to recompense a plaintiff) is not allor-nothing: A defendant need not show that every claim in a complaint is
frivolous to qualify for fees.
This argument runs contrary to Plaintiff’s previous position, admitting that
Defendant was entitled to costs as the prevailing party. [ECF No. 186-1 (“Plaintiff Club
Madonna has indicated that it does not oppose [Defendant’s request for costs as the
prevailing party].”)].
1

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Fox v. Vice, 563 U.S. 826, 833, 131 S. Ct. 2205, 2213, 180 L. Ed. 2d 45 (2011).
Fox makes clear that Defendant is not precluded from seeking fees under § 1988
merely because Plaintiff prevailed on one of the sixteen counts in the Complaint. In such
a situation, the Court may award Defendant fees despite Plaintiff’s single-count victory
and may also award fees even if only some of the remaining fifteen counts were frivolous.
Any other outcome would permit a prospective civil-rights plaintiff to file a complaint
overflowing with frivolous claims and then shield itself from a potential adverse fee
award by including a singular meritorious count.
On this same topic, Plaintiff raises a count-specific argument and contends that
Defendant cannot be considered the prevailing party on Count XII because the Count
was dismissed as unripe. Plaintiff cites to Davis v. Jackson, 776 F. Supp. 2d 1314, 1317 (M.D.
Fla. 2011) and Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir. 1990) as support for its
position that “[w]here a complaint has been dismissed for lack of subject matter
jurisdiction, the defendant has not ‘prevailed’ over the plaintiff on any issue central to
the merits of the litigation.” [ECF No. 192]. Neither case is persuasive.
In a more-recent Eighth Circuit decision, the Court noted that the Supreme Court
recently rejected its merits-focused rationale in the context of another statute. Equal Emp.
Opportunity Comm'n v. CRST Van Expedited, Inc., 944 F.3d 750, 753–54 (8th Cir. 2019) (“The
Supreme Court granted a writ of certiorari on the proper interpretation of ‘prevailing
party’ under 42 U.S.C. § 2000(e)-5(k) and held ‘that a favorable ruling on the merits is not
11

a necessary predicate to find that a defendant has prevailed.’” (quoting CRST Van
Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 136 S. Ct. 1642, 194 L. Ed. 2d 707 (2016)).
Moreover, in a recent case out of this District, former-United States District Court
Judge Ursula Ungaro rejected the broad proclamation that a merits-based decision is
required to confer prevailing party status in the context of 42 U.S.C. § 1988. Beach Blitz Co.
v. City of Miami Beach, Fla., No. 1:17-CV-23958-UU, 2018 WL 11260452, at *11 (S.D. Fla.
Sept. 25, 2018). The proper inquiry, instead, is whether “’the [d]efendants have “fulfilled
[their] primary objective’ by ‘rebuff[ing]’ [the] [p]laintiff's legal challenges.” Id. (quoting
CRST Van Expedited, Inc., 578 U.S. at 431 (some alterations in original)). Guided by this
principle, the Beach Blitz Court determined that the defendant was the prevailing party
for all counts -- including those which were dismissed for non-merits reasons. Id. The
Eleventh Circuit affirmed this reasoning, finding that the defendant was the prevailing
party on all counts. Beach Blitz Co., 13 F.4th at 1297.
Therefore, the Undersigned rejects Plaintiff’s general and count-specific
arguments that Defendant is not a prevailing party.
Next Plaintiff argues that the “law of the case” doctrine precludes this Court from
finding that any of the counts are frivolous. As support, Plaintiff cites generally to page
six of Judge Moreno’s Order on Defendant’s Second Motion to Dismiss. [ECF No. 192
(stating that “this Court properly determined that the Eleventh Circuit has considered
this case on its merits and had not found any claim to be frivolous or in bad faith” (citing

12

ECF No. 140, p. 6))].
In that Order, Judge Moreno made two comments which are relevant to Plaintiff’s
argument. First, Judge Moreno stated:
Here, reviewing the Mandate closely, the Court finds that its previous bad
faith determination was not left undisturbed. Although the Eleventh Circuit
did not explicitly rule on the frivolity of the Club’s claims, the Eleventh
Circuit “decided by necessary implication” that Counts 7-16 were not
frivolous when it ruled the claims were ripe for review. Bound by the
Mandate, which reversed the ruling underlying the Court’s bad faith
determination, the Court must deny the City’s request for dismissal with
prejudice on bad faith grounds.
[ECF No. 140, p. 6]. In a footnote on the same page, Judge Moreno noted that “[t]he Court
also found the constitutional claims in Counts 1-6 frivolous, but the Eleventh Circuit did
not comment on this finding despite also affirming dismissal of Counts 3-6 (the only
constitutional claims on appeal). Id.
Plaintiff’s argument misapplies the “law of the case” doctrine and incorrectly
portrays the totality of the referenced District Court Order (i.e., it does not acknowledge
that Judge Moreno determined only that the Eleventh Circuit “decided by necessary
implication” that Counts VII-XVI were not frivolous). Id. at p. 6 n.3.
“The law of the case doctrine ‘posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same
case.’” Klay v. All Defendants, 389 F.3d 1191, 1197 (11th Cir. 2004) (quoting Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 2177, 100 L.Ed.2d 811 (1988)
(some internal quotation marks removed). In this Circuit, the doctrine applies, “not only
13

as to ‘matters decided explicitly but also as to those decided by necessary implication.’”
Id. (quoting DeLong Equip. Co. v. Wash. Mills Electro Minerals Corp., 990 F.2d 1186, 1196
(11th Cir.) (citations omitted), modified on other grounds, 997 F.2d 1340 (11th Cir. 1993)
(some internal quotation marks removed).
Plaintiff appears to contend that the “law of the case” doctrine is implicated by an
earlier Order from this Court. However, this misconstrues the doctrine -- which applies
to bind a court to the findings of fact and conclusions of law announced by a court which
sits above it in the judicial hierarchy. Phrased differently, a district court is not
permanently bound by its earlier decisions in a case. See Original Brooklyn Water Bagel Co.
v. Bersin Bagel Grp., LLC, 817 F.3d 719, 728 (11th Cir. 2016) (“Nor, finally, does the law of
the case doctrine require the district court to enforce its earlier injunction.”); Lester v. City
of Lafayette, Colo., 639 F. App'x 538, 542 (10th Cir. 2016) (“Although a court must honor the
rulings of a court that stands higher in the hierarchical judicial structure, a district court
has the discretion to depart from its own prior rulings[.]”) (quotation marks and citations
omitted); Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001) (“Application of
the law of the case doctrine is discretionary and does not limit a court's power to
reconsider its own decisions prior to final judgment.”).
To that end, the Undersigned is bound by only the Eleventh Circuit’s implicit and
explicit rulings on the issue of whether Plaintiff’s claims are frivolous.
Moreover, on this issue, Plaintiff misinterprets Judge Moreno’s ruling as one

14

which “determined that the Eleventh Circuit had considered this case on its merits and
not found any claim to be frivolous or in bad faith,” and “precludes any finding that Club
Madonna’s claims are frivolous in any respect.” [ECF No. 192]. As noted previously,
Judge Moreno limited his discussion on frivolousness and bad faith to counts VII-XVI.
For Counts I-VI, Judge Moreno explicitly noted that the Eleventh Circuit did not comment
on the findings or frivolousness and, in fact, affirmed their dismissal. Notably, because
Plaintiff did not appeal the dismissal of Counts I and II, it would not have even been
possible for the Eleventh Circuit to decide in any manner whether those counts were
frivolous.
Notwithstanding this discussion, the Undersigned declines to revisit Judge
Moreno’s unambiguous determination that the Eleventh Circuit decided by implication
that Counts VII-XVI were not frivolous. However, the Undersigned interprets this
statement from Judge Moreno as referring to only the counts which were then currently
before the Court. As noted previously, the Eleventh Circuit agreed that Count XII was
due to be dismissed because it was not ripe. Club Madonna I, 924 F.3d at 1378 (“We also
agree that Count XII was not ripe for the court's review.”). Thus, Judge Moreno’s
discussion concerning frivolousness and ripeness could not have been referring to Count
XII, which was not at issue in that Order. Accordingly, the Undersigned finds that Judge
Moreno’s comments were limited to Counts VII-IX, XI, and XIII-XVI (i.e., the Counts
which were actually discussed in the Order). Regardless, in an abundance of caution, the

15

Undersigned will discuss all counts when evaluating the frivolousness factors.
Finally, Plaintiff argues that Defendant cannot recover fees related to Count XIV
because Defendant did not properly raise the argument in support of its request. As
Plaintiff notes in its response, the entirety of Defendant’s substantive argument as to why
it is entitled to the fees related to Count XIV is found in a footnote and discussed in a
conclusory manner.
“[A]ddressing legal arguments in footnotes is an incorrect method to present
substantive arguments on the merits or otherwise request relief from the Court.” Sony
Music Ent. v. Vital Pharms., Inc., No. 21-22825-CIV, 2022 WL 4771858, at *13 (S.D. Fla. Sept.
14, 2022). In the Eleventh Circuit, the Court will not consider arguments which are
“raise[d] [ ] only in a footnote in a perfunctory and conclusory manner.” Nat'l Mining
Ass'n v. United Steel Workers, 985 F.3d 1309, 1327 (11th Cir. 2021). Because Defendant did
not properly raise its argument concerning Count XIV, the Undersigned will not consider
Defendant’s request for fees related to the count.
B.

Frivolousness Factors

As noted previously, there are four factors which the Court should consider in
assessing whether a plaintiff’s claim was frivolous: “(1) whether the plaintiff established
a prima facie case; (2) whether the defendant offered to settle; . . . (3) whether the trial
court dismissed the case prior to trial or had a full-blown trial on the merits[,]” Sullivan,
773 F.2d at 1189, and (4) “whether there was enough support for the claim to warrant

16

close attention by the court[,]” Beach Blitz Co., 13 F.4th at 1302. These “factors . . . are
‘general guidelines only, not hard and fast rules.’” Cordoba v. Dillard's, Inc., 419 F.3d 1169,
1177 (11th Cir. 2005) (quoting Sullivan, 773 F.2d at 1189).
i. Prima Facie Case
All eleven counts were dismissed for failing to state a claim, as unripe, or for a lack
of standing. In other words, it was determined that each count was missing an essential
element.
Counts I, II, and VI’s First Amendment claims were dismissed because the O’Brien2
test’s four factors all easily fell in the City’s favor. The dismissal of Counts III-VI were
affirmed because each count “lack[ed] the essential element that the state refused to
provide the club with due process.” Club Madonna I, 92 F.3d at 1378-79. Counts VIII and
XI were dismissed because Plaintiff’s claims were unsupported by any fair reading of the
Ordinance. [ECF No. 140]. Count IX was dismissed because Plaintiff failed to identify a
“similarly situated” business which was treated differently -- a necessary element. Id.
Count X was dismissed because Plaintiff could not establish that any of the provisions
were at least arguably vague, nor could it show a financially traceable injury. Club
Madonna I, 92 F.3d at 1381-84. Lastly, Count XII was dismissed because no fine had been
imposed when Plaintiff brought suit. Id. at 1381.

2

United States v. O’Brien, 391 U.S. 367 (1968).
17

Plaintiff doesn’t offer any meaningful response to these realities. Instead, Plaintiff
argues about the merits of the counts which were addressed at the summary judgment
stage. As Defendant notes in its initial motion and in its reply, it is not seeking fees
associated with those counts.
Accordingly, the Undersigned finds that this factor weighs in favor of a
frivolousness finding.
ii. Settlement Offers
Defendant says that this factor easily falls in its favor as to all claims because of the
simple fact that it never extended a settlement offer. According to Defendant, “while [it]
participated in good faith settlement discussions, it did not offer any affirmative relief to
settle Plaintiff’s claims.” [ECF No. 188]. In response, Plaintiff first states -- without
providing any legal authority -- that “this [Sullivan] factor is seldom determinative of
whether a claim is frivolous.” [ECF No. 192]. Plaintiff then goes on to argue that this factor
should fall in its favor because “the parties actively engaged in settlement negotiations.”
[ECF No. 192].
As Defendant notes in its reply, however, these negotiations were part of a
mediation which the Eleventh Circuit required the parties to complete during the
pendency of the first appeal. Regardless, Plaintiff has presented no authority supporting
its expansion of the second factor (of making a settlement offer) to merely engaging in
mandatory settlement negotiations.

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This factor falls in favor of finding that Plaintiff’s claims were frivolous.
iii. Stage at Which Defendant Prevailed
Defendant says that this factor also easily falls in its favor because all counts for
which it seeks to recover fees were dismissed on the pleadings. Plaintiff says that this
factor is “essentially merged” with the first Sullivan factor. Plaintiff cites no law
supporting its merger theory or how the theory ought to change the court’s analysis.
Despite its attempts to obfuscate the nature of this consideration by merging it
with the first factor and then discussing the detail and analysis in various trial and
appellate decisions, Plaintiff cannot escape the fact that the majority of its claims were in
fact dismissed on the pleadings (i.e., when all inferences were required to be made in its
favor). The Eleventh Circuit has been clear that dismissal at the pleadings stage weighs
in favor of a finding of frivolousness. Bevan v. Lee Cnty. SO, 224 F. App'x 880, 882 (11th
Cir. 2007) (“Typically, cases that are frivolous have been dismissed before trial, on
summary judgment or on a motion to dismiss.”).
Plaintiff says that the fact that these claims were resolved prior to a trial is a natural
consequence of the type of claims which were brought. The challenges to the Ordinance,
Plaintiff notes, were questions of law which did not require further factual development.
However, this reality does not tip the scale into Plaintiff’s favor. In such a situation -where no factual development is necessary -- a plaintiff, before bringing suit, would be
able to readily assess the merits of his or her lawsuit. In other words, a civil-rights plaintiff

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challenging the legality of a statute is not insulated from a frivolousness finding merely
because the lawsuit raises only questions of law which obviate the need for a trial.
At bottom, the counts for which Defendant seeks to recover fees were dismissed
on the pleadings, a circumstance which weighs in favor of a finding that the counts were
frivolous.
iv. Close Attention
The Eleventh Circuit has found that a claim warrants close attention when the
Court is required to distinguish a plaintiff’s caselaw or when “there [is] sufficient support
in [ ] prior caselaw . . . [to demonstrate that the claim is] not so groundless [ ] to be
frivolous.” Beach Blitz Co., 13 F.4th at 1304 (citing to decisions dealing with an essential
element of the plaintiff’s claim that the court was required to distinguish in reaching its
conclusion). In a similar vein, courts in this circuit have found that a claim warrant close
attention when it requires thoroughly assessing “the adequacy of [the] [p]laintiff’s
evidence, Poulin v. Bush, No. 8:21-CV-1516-WFJ-AEP, 2023 WL 2242593, at *1 (M.D. Fla.
Feb. 27, 2023), or a trial on the merits, Bolling v. City of Montgomery, No. 2:19-CV-244-RAH,
2023 WL 2145501, at *1 (M.D. Ala. Feb. 21, 2023).
For purposes of analyzing this “close attention” factor, the Undersigned will
divide the counts for which Defendant seeks fees into three categories: (1) Counts I-VI;
(2) Counts VIII, IX, and XI; and (3) Counts X and XII.
1. Counts I-VI

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Counts I-VI -- which challenged the constitutionality of the City’s Emergency
Order suspending the Club’s Occupational Licenses -- were dismissed for failing to state
a claim. [ECF No. 33].
The Court noted that the First Amendment claims (Counts I, II, and VI) failed
because nude dancing “falls within the outer ambit of the First Amendment’s protection,”
City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000), “the First Amendment [is] not
implicated by the enforcement of a public health regulation of general application against
the physical premises in which [the purportedly protected activity occurs],” Arcara, 478
U.S. at 707, and even if the First Amendment were implicated, the O’Brien four-factor test
was satisfied. In other words, this Court determined that decades of Supreme Court
precedent supported dismissal of these counts.
Plaintiff did not appeal the dismissal of Counts I and II nor the dismissal of Count
VI, to the extent that it challenged the City’s actions under the First Amendment. Club
Madonna I, 924 F.3d at 1377 (“The Club does not appeal the district court's dismissal of
Counts I and II, nor the dismissal of Count VI to the extent it asserts a violation of the
First Amendment.”). Plaintiff contends that its motivation for opting to not appeal these
counts was because these were merely “complementary” counts to the “superior” due
process counts. [ECF No. 192].
Plaintiff further argues that the First Amendment issue was a close call, stating that
“the Court devoted four pages of tightly reasoned analysis in its Order of dismissal” and

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“[t]his [is] not a situation where the Court could merely cite to [Arcara] and be done with
it. Id. Plaintiff, however, misinterprets the dismissal Order. The Court readily found that
Arcara supported dismissal of Plaintiff’s claims. The discussion concerning the O’Brien
factors which followed began with the phrase “[e]ven assuming, arguendo, the Club
Madonna’s First Amendment Rights were implicated . . . there was no First Amendment
violation.” [ECF No. 33].
Said differently, the Court determined that: (1) there was no First Amendment
violation; and (2) even if there was, the claims still failed. Counts I, II, and the First
Amendment Portion of Count VI did not require close attention. The function of the “four
pages of tightly reasoned analysis” was to demonstrate that the Counts were meritless,
regardless of which stage of the analysis the Court reached.
The Court also found that Counts III-VI failed to state a claim. Plaintiff contends,
without much elaboration, that both the trial court and the appellate court carefully
considered these allegations. However, nothing about the trial court’s recitation of the
Mathews3 factors is particularly unique or intricate. Rather, it is a uniform application of
well-settled law to the facts in the Complaint. Most of the discussion, instead, is spent
discussing the gravity of the fact that the Club had allowed a thirteen-year-old human
trafficking victim to dance nude under the threat of violence, and the “paramount public

3

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L.Ed.2d 18 (1976).
22

interest in ensuring that children are not being forced to engage in nude dancing.” [ECF
No. 33].
Further, the Eleventh Circuit’s discussion affirming the dismissal of these counts
was summarized rather tidily, “Here, all of the Club's due-process claims in Counts IIIVI fail for the same reason: they all lack the essential element that the state refused to
provide the Club with due process.” Club Madonna I, 924 F.3d at 1378.
In summary, Plaintiff’s argument falls into two categories: (1) the analysis of these
counts was “lengthy”; and (2) the Eleventh Circuit’s decision was published. Both
arguments are unavailing. First, the length of the discussion surrounding these claims is
a byproduct of the type of claim which was raised and the Court’s decision to articulate
the multiple ways in which each count was deficient. Second, Plaintiff offers no legal
authority supporting its contention that the publication of the Eleventh Circuit’s decision
means that these counts warranted close attention. Indeed, in another decision from the
Eleventh Circuit, discussing only the issue of fees, the Eleventh Circuit engaged in an
even-lengthier discussion of counts which it concluded were properly determined as
frivolous. Beach Blitz Co., 13 F.4th at 1301-03.
Because Counts I-XI were readily dismissed and affirmed on appeal, this factor
weighs in favor of finding that Counts I-VI were frivolous.
2. Counts VIII, IX, and XI

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Each of these Counts were initially dismissed as unripe. [ECF No. 33]. On appeal,
the Eleventh Circuit reversed the dismissal and remanded the Counts to the District
Court for further consideration. Club Madonna I, 924 F.3d at 1378.
In finding that these claims were ripe, the Eleventh Circuit stated:
To be sure, the Club does not contend that it was charged with violating the
Ordinance or that it has suffered the Ordinance's penalties. But that does
not render the claims in Counts VII, VIII, IX and XI unripe for the district
court's review. If the Club were to fall short of any of the Ordinance's
requirements and the City were to charge it with a violation of the law, the
resulting additional facts would shed no further light on whether
compliance with the Ordinance is an unconstitutional burden on speech, a
tax on speech, an equal-protection violation, or a Contract Clause violation
in the first place. For these same reasons, institutional concerns likewise
present no impediment to fitness for review.
Id. at 1380.
On remand, the merits of each of the counts was thoroughly discussed in both a
Report and Recommendations and an Order.
In addressing Counts VIII and XI, the Report and Recommendations noted that,
although the Ordinance did not place a ban on tipping -- as Plaintiff alleged -- it could
have been written more clearly. [ECF No. 111]. In adopting the Report and
Recommendations, Judge Moreno found no error in the Undersigned’s construction of
the Ordinance and stated that “[c]onstruing the Ordinance in this way means that the
Club’s speech is not being taxed, the Club’s payment arrangements are not being
substantially impaired, and the Ordinance does not conflict with the Fair Labor Standards
Act.” [ECF No. 140]. Because resolving Counts VIII and XI involved multiple briefings by
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the parties, a visit to the Eleventh Circuit, and interpretation of the Ordinance, it qualifies
as having warranted close attention by the Court.
The Report and Recommendations concluded that Count IX should be dismissed
because Plaintiff failed to identify a “similarly situated” business which was being treated
differently by the City. The District Court adopted the recommendation in a lengthy
discussion on the merits of the issue. It was noted that the Club faced difficulty
identifying a comparator because it was the only nude-dancing establishment on the
beach. Because the Court was forced to tackle this issue under a somewhat unique set of
facts, the Undersigned finds that it warranted close attention from the Court.4
Accordingly, the Undersigned finds that each of these counts warranted close
attention by the Court.
3. Counts X and XII
Counts X and XII were also both dismissed as unripe. [ECF No. 33]. The Eleventh
Circuit, on appeal affirmed the dismissal of Count X on other grounds (a lack of standing)
and affirmed this dismissal of Count XII as unripe. Club Madonna I, 924 F.3d at 1378.
Plaintiff makes no real effort to discuss whether Counts X and XII warranted close
attention from the Court. Plaintiff’s argument in support of a determination that Count

In a footnote, Plaintiff inaccurately claims that Count IX “was dismissed with leave
to amend but Club Madonna elected not to file an amended complaint.” [ECF No. 192, p.
16 n.8]. The Club actually sought leave to amend, but the District Court determined that
the Club’s request was procedurally improper, and that any amendment would be futile.
[ECF No. 140].
4

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X was not frivolous seems to hinge on the fact that the Eleventh Circuit affirmed the
dismissal of the count on a different ground than the one relied upon by the District
Court. The Court’s decision to affirm the dismissal based on a lack of standing is,
however, not a testament to the complexity of Count X or to a need to examine the count
with close attention. Rather, it is based on a federal court’s continuing obligation to
determine whether standing exists. Club Madonna I, 924 F.3d at 1381 n.10 (“Standing is a
jurisdictional requirement that we are obligated to address sua sponte.” (citing Murphy v.
Dulay, 768 F.3d 1360, 1366 n.4 (11th Cir. 2014); Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 806-807 (11th Cir. 1993)).
Further, the length of the discussion does not demonstrate that the issue of
standing was a close call. Instead, the discussion explains in detail how Plaintiff’s claim
fails at each stage of the analysis:
In short, the Club cannot clear the low bar of demonstrating that the
challenged provisions are at least arguably vague as applied to it. So even if
it showed that it had incurred some additional expense in an attempt to
comply with those provisions, and assuming that the additional expense
constituted an injury for purposes of standing, that injury would not be
fairly traceable to the purportedly vague language. And without an injury
that is fairly traceable to the challenged provisions, the Club lacks standing
to argue that they are unconstitutionally vague.
Id.
Plaintiff offers no explicit or implicit argument on this issue as applied to Count
XII. Indeed, the Eleventh Circuit was able to summarily affirm the dismissal of the Count
under well-settled precedent:
26

As for Count XII, we agree with the district court that it is not ripe for
review. Count XII alleges that that [sic] the Ordinance's penalty provision
violates the Eighth Amendment. But we have held that “Eighth
Amendment challenges are generally not ripe until the imposition, or
immediately impending imposition, of a challenged punishment or fine.”
[Cheffer v. Reno, 55 F.3d 1517, 1523-24 (11th Cir. 1995)]. The Club does not
allege that the City imposed a fine under that provision or that the
imposition of a fine is immediately forthcoming, so the district court
correctly determined that the Club's Eighth Amendment argument is not
ripe for review.
Club Madonna I, 924 F.3d at 1381.
In summary, this factor falls in favor of finding that Counts X and XII were
frivolous.
5. Conclusion
Each of the four frivolousness factors weigh in favor of a finding that Counts I-VI,
X, and XII were frivolous. On the other hand, because Counts VIII, IX, and XI required
close attention from the Court, they were not frivolous.
IV.

Conclusion
For the reasons discussed above, the Court grants in part Defendant’s motion and

determines that Defendant is entitled to the attorney’s fees associated with its defense of
Counts I-VI, X, and XII. Because Defendant’s current fee request includes entries
associated with counts for which Defendant is not entitled to fees, the Undersigned is
requiring that Defendant resubmit its fee request by June 14, 2023 (excluding the entries
related to those counts).

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Plaintiff and Defendant are encouraged to agree on the amount of fees. By May 31,
2023, Defendant shall submit to Plaintiff its revised fee request. By June 7, 2023, Plaintiff
shall provide to Defendant its entry-specific objections to Plaintiff’s fee request (if any).
After receiving Plaintiff’s objections but before the revised fee request is filed, Plaintiff
and Defendant shall meaningfully confer (i.e., face-to-face, via a video-conferencing
platform, or on the telephone)5 and see if an agreement can be reached. If an agreement
is reached, then Defendant shall promptly file a notice on CM/ECF, informing the Court
of the agreement.
If the Court is required to issue a ruling on the amount of fees, then the Court may
set the matter for an evidentiary hearing and require the parties to obtain experts to
support their position.
DONE AND ORDERED, in Chambers, in Miami, Florida, on May 18, 2023.

Copies furnished to:
The Honorable Federico A. Moreno
All counsel of record

5

In other words, communications based solely on email exchanges are inadequate.
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