McDonough et al v. City of Homestead et al

Filing 119

ORDER granting 92 Defendants' Motion to Determine Entitlement to Attorneys' Fees. Signed by Magistrate Judge Edwin G. Torres on 9/25/2018. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-23227-Civ-SCOLA/TORRES
JAMES ERIC McDONOUGH,
and VANESSA McDONOUGH,
Plaintiffs,
v.
CITY OF HOMESTEAD,a Florida Municipal
Corporation, et al.,
Defendants.
___________________________________________/
ORDER ON DEFENDANTS’
MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY’S FEES
This matter is before the Court on Defendants’ motion to determine their
entitlement to attorney’s fees.1 [D.E. 92]. City of Homestead, Mayor Jeff Porter, City
Manager George Gretsas, Chief of Homestead Police Alexander Rolle Jr., and
Homestead police officers Alejandro Murguido, Thomas Surman, John Buchanan,
D. Snyder, M. Pasquarella, L. Zavaleta, A. Pearce, J. Cruz, Veronica Blanco, Mario
Arzuaga, and Thomas Mead (“Homestead Defendants”), move pursuant to Federal
Rule of Civil Procedure 54(d)(2), 42 U.S.C. §1988, 28 U.S.C. §1927, and Local Rule

Pursuant to Rule 54(d)(2)(C), the Homestead Defendants request that this
Court initially determine their entitlement to the recovery of attorney fees before
requiring submissions bearing on the issue of the lodestar method by the attorneys
representing the Homestead Defendants. The Homestead Defendants estimate that
the fees sought approximate $28,193.00.
1
1

7.3,

against

Plaintiffs James Eric

McDonough

and

Vanessa

McDonough

(“Plantiffs”), and their former counsel, Gary S. Ostrow, and his law firm, Gary S.
Ostrow P.A. (“Former Counsel”). After careful consideration of the motion,
responses, replies, supplemental authorities, and the record, the Homestead
Defendants’ motion should is GRANTED.
I. BACKGROUND
On August 25, 2017, Plaintiffs and their Former Counsel filed a complaint
against Defendants. [D.E. 1]. In the Omnibus Order granting Defendants’ motions
to dismiss [D.E. 80], Judge Scola found that this case is “related and substantially
indistinguishable to a case previously filed by Plaintiff James Eric McDonough
before Judge Williams.” McDonough v. City of Homestead, No. 1:16-cv-24524-KMW.
On January 3, 2018, the Homestead Defendants filed their motion to dismiss
Plaintiffs’ complaint. [D.E. 58]. On June 5, 2018, Judge Scola granted the
Homestead Defendants’ motion to dismiss with prejudice. [D.E. 80].
On July 9, 2018, the Homestead Defendants filed their motion to determine
their entitlement to fees. [D.E. 92]. On July 23, 2018, Former Counsel filed a
response [D.E. 101], and Plaintiffs filed a pro se motion in response [D.E. 100]. On
July, 30, 2018, the Homestead Defendants replied to both Former Counsel and
Plaintiffs [D.E. 102].

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II. ANALYSIS
A.

Entitlement under 42 U.S.C. §1988

Under 42 U.S.C. §1988,2 a “prevailing party” is entitled to an award of
attorney’s fees. Hensley v. Eckerhart, 461 U.S. 433 (1983). The Homestead
Defendants are the prevailing party in this case because Judge Scola granted their
motion to dismiss with prejudice. [D.E. 80]. But, to award fees under §1988 in favor
of a prevailing defendant, the Supreme Court has also required that the action be
deemed “frivolous, unreasonable, or without foundation, even though not brought in
a subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978).
In determining whether a claim is frivolous, “a district court must focus on
the question whether the case is so lacking in arguable merit as to be groundless or
without foundation rather than whether the claim was ultimately successful.”
Sullivan v. Sch. Bd. of Pinellas Cty., 773 F.2d 1182, 1189 (11th Cir. 1985) (quoting
Jones v. Texas Tech University, 656 F.2d 1137, 1145 (5th Cir. 1981)). Additional
factors to consider include are “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,
F.2d at 1189.

Most of Plaintiffs claims arise under 42 U.S.C. §1983. [D.E. 1]. The Court
may award attorney’s fees to the prevailing party in any action or proceeding that
enforces §1983. See 42 U.S.C. §1988 (2000).
3
2

Our review of the record shows this action against the Homestead
Defendants was “unreasonable or without foundation” because the majority of
Plaintiffs’ claims are premised upon events occurring beyond the applicable statute
of limitations.3 Indeed, the District Judge found as much in the Order dismissing
the action when holding that “the majority of Plaintiffs’ claims appear to be
premised upon events occurring beyond the applicable four-year statute of
limitations.” [D.E. 80] (citing Fla. Stat. §95.11(3)(p); see also Sneed v. Pan Am.
Hosp., 370 F. App’x 47, 49 (11th Cir. 2010) (“All constitutional claims brought under
§1983 are tort actions, subject to the statute of limitations governing personal
injury actions in the state where the §1983 action has been brought.”)).
A facially-time barred claim can be grounds for an award of fees under §1988.
In Quinto v. Universal Parking of Florida, LLC, for instance, the court held a
plaintiff’s action as frivolous under the Sullivan standard because the plaintiff’s
claims were (1) barred by the applicable statute of limitations, (2) there was no
settlement offer, and (3) the case was dismissed prior to trial. 2016 WL 8739323
(S.D. Fla. Sept 29, 2016). Pointing to cases such as Quinto, Defendants claim that
Plaintiffs’ complaint was frivolous under the Sullivan factors because Plaintiffs and
Former Counsel pursued a time-barred action, failed to establish a prima facie case,
received no settlement offers, and could not proceed to a trial on the merits.
Sullivan, 773 F.2d at 1189.

We note that Plaintiffs’ complaint [D.E. 1] was a 94-page document with 32
causes of action.
4
3

Notwithstanding the facially time-barred complaint, Plaintiffs oppose the
motion based on the advice they received from Former Counsel and their “good faith
and reasonable belief that equitable tolling and/or the continuing conspiracy
doctrine would apply to all of the claims.” [D.E. 100]. Former Counsel adds that his
legal theory was premised on the conclusion that the “statute of limitations is
governed by the date of the last act in furtherance of the conspiracy, which is well
within the statute of limitations on all counts.” [D.E. 91, 101].
Fair enough, if the claim at issue was just that – a cause of action for
conspiracy. A review of the complaint shows, however, that almost all of the claims
were direct constitutional tort claims for incidents that occurred in 2012. And the
remaining “conspiracy” claims were actually disparate events that occurred in 2013
and 2014, most of whom also were time-barred and all of whom would have no
proximate connection with what allegedly occurred in 2012. So, despite the hodgepodge of allegations thrown in the mix, when one boils the complaint down to its
essence the claims are almost all stale and time-barred on the face of the complaint.
Apart from that, Plaintiffs and Former Counsel were also given notice as to
how to amend their complaint to state viable claims when Judge Williams
dismissed their first case without prejudice. When Plaintiffs and Former Counsel
filed their second lawsuit, they failed to correct the errors previously identified.

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Plaintiffs4 and their Former Counsel filed complaints in two separate actions, and
yet in both cases the complaints were properly dismissed. So by failing to survive
motions to dismiss on two occasions, Plaintiffs and Former Counsel satisfy two of
the Sullivan factors.
Therefore, the Homestead Defendants, as prevailing defendants, are entitled
to an award of attorney’s fees under 42 U.S.C. §1988 because the second action
against them is “frivolous, unreasonable, or without foundation.” Christiansburg,
434 U.S. at 421.
B.

Entitlement under 28 U.S.C. §1927

A district court’s authority to issue sanctions under section 1927 is either
broader than or equally as broad as a court’s authority to issue sanctions under its
inherent powers. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1178 n.6 (11th Cir.
2005). Sanctions are appropriate under 28 U.S.C. § 1927 where “[a]ny 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.” There are three essential
requirements that must be satisfied with respect to a fee award under section 1927.
As the Eleventh Circuit has explained:

Vanessa McDonough only participated as a plaintiff in this case, whereas
James Eric McDonough and Former Counsel participated in both cases. On June
22, 2018, Former Counsel withdrew as Plaintiffs’ attorney of record.
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4

First, the attorney must engage in unreasonable and vexatious
conduct. Second, that unreasonable and vexatious conduct
must be conduct that multiplies the proceedings. Finally, the
dollar amount of the sanction must bear a financial nexus to
the excess proceedings, i.e., the sanction may not exceed the
costs, expenses, and attorney’s fees reasonably incurred
because of such conduct.
Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997) (citations and
quotation marks omitted).
The first requirement is satisfied “only when the attorney’s conduct is so
egregious that it is tantamount to bad faith.” Hudson v. Int'l Computer
Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007) (citation omitted). In fact,
“an attorney’s conduct must be particularly egregious to warrant the imposition of
sanctions” because the “attorney must knowingly or recklessly pursue a frivolous
claim.” Id. (emphasis in original) (citation omitted). Negligent conduct, standing
alone, will not suffice as “something more than a lack of merit is required.” Id.
(citation omitted). The second requirement, relating to multiple proceedings, is only
satisfied when an attorney’s conduct “results in proceedings which would not have
been conducted otherwise.” Daniels v. Sodexo, Inc., 2013 WL 4008744, at *7 (M.D.
Fla. Aug. 5, 2013) (citing Peterson, 124 F.3d at 1396). As for the final requirement,
any sanction award must not be excessive in relation to the underlying misconduct.
This final consideration is not ripe for consideration because we are only addressing
here the initial entitlement question. The determination of a permissible fee will
have to be decided at a later stage of the proceeding.

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Applying these principles, the first requirement is satisfied because the
original complaint, “constitutes a particularly egregious example of [a] shotgun
pleading. Not only do the Plaintiffs reincorporate several counts into subsequent
counts, each count in the complaint comprises multiple claims against multiple
Defendants.” [D.E. 80]. It is the responsibility of counsel to draft coherent and
competent pleadings that are supported by facts and law. As Judge Scola
determined, “[i]t certainly is not the Court’s responsibility to attempt to discern
potential causes of action from a hodgepodge of allegations haphazardly strewn
together.” [D.E. 80]. Former Counsel admits that the complaint suffered from
numerous defects, but argues that “the core facts and circumstances of the
[complaint] entitled them to relief.” [D.E. 91, 101]. Former Counsel’s argument is an
unpersuasive excuse for the failure to present a coherent complaint to the Court
that could possibly satisfy the threshold plausibility requirement.
The second requirement is satisfied because Former Counsel was fully on
notice of the defects in the case after having filed a substantially similar – and
equally flawed – complaint in the prior case. When Judge Williams dismissed5 the
first case against Defendants, she held that “although many of Plaintiff’s claims are
frivolous, some of the Plaintiff’s claims may survive if they are properly pled in an
amended pleading.” [D.E. 51].

Specifically, Judge Williams dismissed the prior case for: 1) failing to file a
second amended complaint, 2) failing to prosecute the action, 3) violating a court
order, and 4) violating the Local Rules. [D.E. 51].
8
5

Having had that benefit of that analysis, it is not defensible for Former
Counsel to then turn around and file a “substantially indistinguishable” complaint
in another case. [D.E. 80]. Courts evaluating these types of situations often find
that section 1927 sanctions should then follow. See, e.g., Jolly Grp., Ltd. v. Medline
Indus., Inc., 435 F.3d 717, 721 (7th Cir. 2006) (affirming attorneys’ fees under
section 1927: “Based on our review of the record, we think the court drew a sensible
and proper distinction between Rovell’s advocacy before dismissal, doomed as it
might have been, and his decision after dismissal to continue inflicting motions on
his adversary and the court.”).
For instance, in Fitzgerald v. Regions Bank, the court imposed sanctions
under Rule 11 and 28 U.S.C. §1927 because the plaintiff filed an amended
complaint that reiterated the same legal theories that were rejected by the court in
a previous litigation involving the same parties. 2014 WL 129066, at *5 (M.D. Fla.
Jan. 14, 2014) (“Remarkably, Plaintiffs continue to reiterate the same legal theories
that have already been rejected in this case and similar actions in their Objections
to the sanctions motion.”); see also, Barrios v. Regions Bank, 2013 WL 12156675, at
*6 (M.D. Fla. August 21, 2013) (“Plaintiff and [Plaintiff’s counsel] were repeatedly
advised—both by Defendant and the Court—that Plaintiff’s claims were frivolous.
Nonetheless, Plaintiff proceeded with this action and Defendant was forced to
defend against this frivolous claim.”); Calderon v. Merch. & S. Bank, 2013 WL
5798565, at *1 (M.D. Fla. Oct. 28, 2013) (“[Plaintiff’s counsel] continued to pursue

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Plaintiffs’ claims even after . . . . this Court found Plaintiffs lacked standing, and
after this Court rejected Plaintiffs’ legal theory in the other related cases.”).
Former Counsel’s repeated failure to properly amend the complaint resulted
in

yet

another

dismissal

of

Plaintiffs’

case.

[Case

No.

16-24524-CIV-

WILLIAMS/Torres, D.E. 51; Case No. 17-23227-CIV-SCOLA/Torres, D.E. 80]. That
unwarranted failure resulted in unnecessary multiplication of proceedings –
precisely the reason why section 1927 is triggered.
Former Counsel argues in opposition that Plaintiffs did not amend the
complaint because they wanted “the input of the Court’s Order on the Defendants’
motions to dismiss and the Plaintiffs’ responses thereto” prior to amendment. [D.E.
91, 101].

This too is highly unpersuasive and indefensible.

Former Counsel’s

argument is simply not tenable where the request to amend first appears in an
opposition to a motion to dismiss. In that case the issue is not properly raised and
cannot constitute a persuasive defense to appropriate sanctions. Cita Tr. Co. AG v.
Fifth Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018).
Based on the record presented here, Former Counsel is liable for
reimbursement of attorneys’ fees that resulted from such vexatiousness. See, e.g.,
Kent v. Bank of America, N.A., 518 F. App’x 514, 516-17 (8th Cir. July 26, 2013)
(affirming attorneys’ fee award based where counsel voluntarily dismissed first
lawsuit and refiled complaint that “did not have a proper purpose and constituted
forum shopping. The district court could ‘ascertain no credible reason’ as to why the
Appellants dismissed and immediately refiled this lawsuit. Indeed, the district
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court rejected the Appellants’ argument that the purpose of the dismissal was to
amend the complaint because the only changes were ‘incidental.’”); Catz v. Chalker,
2007 WL 3171383, at *7 (D. Ariz. Oct. 26, 2007) (awarding sanctions under section
1927: “The imposition of sanctions is one of the few options available to a court to
deter and punish people who relitigate cases hopelessly foreclosed. . . . In the
present case, the Court’s finding that Plaintiffs’ claims were precluded by previous
litigation could not have been a surprise to Plaintiffs, since the Sixth Circuit had
already reached the same conclusion. In addition, the district court essentially
warned Plaintiffs not to re-assert claims barred by previous litigation when it
ordered Plaintiffs to file amended complaints that eliminated allegations and claims
that were barred . . . .”); Carr v. Times Picayune Pub. Corp., 619 F. Supp. 94, 98
(E.D. La. 1985) (“Plaintiff has unreasonably increased litigation cost and clogged
the judicial system by instituting this suit which merely duplicates the previously
dismissed action and which is nothing more than a facile attempt to circumvent
plaintiff's abject failure to abide by this Court’s order to amend the Complaint in
Civil Action 83–5229. Such an unwarranted litigation practice demands the
application of sanctions under Rule 11 as well as under 28 U.S.C. § 1927.”).
Here, Judge Scola found Former Counsel’s request to amend improper and
ineffective. [D.E. 80].

In his Omnibus Order granting defendants’ motions to

dismiss, Judge Scola held that Plaintiffs’ complaint is “a tangled mess comprising
94 pages of incoherent and largely irrelevant conclusory allegations.” Judge Scola
also found that “[Defendants] identified countless procedural and substantive
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improprieties, not the least of which is the fact that the complaint is virtually
incomprehensible because it is a shotgun pleading.” Judge Scola specifically
criticized Former Counsel for not devoting the “necessary time to drafting a
coherent and competent statement of his clients’ claims and the facts supporting
those claims.” And aside from finding the complaint to be a defective shotgun
pleading that should have previously been amended, Judge Scola ultimately
concluded that most of Plaintiffs’ claims were barred under the applicable statute of
limitations, and otherwise the remaining claims failed to state a viable cause of
action.
Therefore, Former Counsel’s justification for not properly amending
Plaintiffs’ complaint carries no water. Former Counsel proceeded in headstrong
fashion with the original complaint in the face of multiple motions to dismiss that
he knew or should have known would be forthcoming. And he did so despite being
warned repeatedly as to the series defects in his pleadings, both in the earlier
motions to dismiss and in Judge Williams’ Order.

Former Counsel’s repeated

failure to draft a coherent or viable complaint is the reason for the unnecessarily
drawn-out proceedings that resulted, “which would not have been conducted
otherwise.” Peterson, 124 F.3d at 1396. Former Counsel’s steadfastness is
inexcusable particularly where Former Counsel had sufficient notice and time to
implement the changes suggested in the prior case before initiating a new lawsuit.
Without any further discussion, the Homestead Defendants have established
a prima facie basis for entitlement to attorneys’ fees under section 1927. But, there
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is more. A finding of vexatiousness also follows from Former Counsel’s insistence
on proceeding with tort claims that were so glaringly time-barred. As we discussed
in the preceding section dealing with entitlement to fees under section 1988, the
complaint reveals that almost all of the claims were direct constitutional tort claims
for incidents that occurred in 2012. And the remaining “conspiracy” claims were
actually disparate events that occurred in 2013 and 2014, most of whom also were
time-barred and all of whom would have no proximate connection with what
allegedly occurred in 2012.

As Judge Scola concluded, virtually the entire

complaint was time-barred on its face.
In light of this finding, Former Counsel’s insistence on proceeding with this
second action unnecessarily multiplied the proceedings. Sanctions under section
1927 are also appropriate on this basis. See, e.g., McConnell v. Critchlow, 661 F.2d
116, 118 (9th Cir. 1981) (awarding attorneys’ fees in part under section 1927 for
vexatiousness: “Although the result as to the governmental parties in this appeal
was not obvious at the outset, the appeal was frivolous as to the individual
defendants. The claims against them were clearly barred by limitations, . . .”);
Reynolds v. U.S. Capitol Police Bd., 357 F. Supp. 2d 19, 24 (D.D.C. 2004) (awarding
attorneys’ fees under Rule 11 and section 1927: “[R]ather than address the clearly
dispositive issue in this case—the timeliness of his claims—the plaintiff and his
counsel chose instead to present a battery of frivolous legal arguments regarding
tolling of statutes of limitations in class action cases.”); cf. Schwartz v. Millon Air,
Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (reversing award of fees where counsel
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reasonably relied on representations of foreign lawyer, but acknowledging that a
“determination of bad faith is warranted where an attorney knowingly or recklessly
pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the
litigation of non-frivolous claims.”).
In particular, the Eleventh Circuit decision affirming sanctions under section
1927 in Byrne v. Nezhat, 261 F.3d 1075 (11th. Cir. 2001), compellingly illustrates
why sanctions are also warranted here. In that case, the core of which included one
plausible medical malpractice claim, plaintiffs threw in the kitchen sink (including
fraud and RICO claims) in a 32-page, 126 paragraph complaint that the Court
described as a prototypical shotgun complaint.

After protracted litigation, the

complaint was ultimately dismissed on all but one count. And the district court
entered attorneys’ fees sanctions against the plaintiff and counsel, in part because
(1) the shotgun pleading included claims that were clearly time-barred, (2) the
response to the motion to dismiss advanced frivolous tolling arguments, and (3)
frivolous claims were pursued in both the original and amended complaint even
though plaintiff and counsel on notice of the deficiencies in each. Id. at 1121-22.
On appeal, the Eleventh Circuit affirmed the dismissal of that complaint,
finding that district courts faced with such shotgun pleadings should dismiss them
and instruct counsel to replead the case. “[I]f the plaintiff fails to comply with the
court’s order – by filing a repleader with the same deficiency – the court should
strike his pleading, or depending on the circumstances, dismiss his case and
consider the imposition of monetary sanctions.” Id. at 1133 (emphasis added). As for
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the monetary sanctions that the district imposed in the case, the Court affirmed
with respect to the section 1927 sanctions against counsel based on the time-barred
and frivolous claims included in the amended pleading:

“Despite concerns

expressed by the defendants and the court regarding the baseless allegations in the
complaint, [counsel] realleged and repled most of those allegations in the amended
complaint, thereby forcing the defendants to respond to the same claims a second
time.” Id. at 1116-17 (“Given such conduct, we would be remiss if we did not affirm
the district court's imposition of monetary sanctions against [counsel] under section
1927 and the court’s inherent power as well as under Rule 11.”).
Though Byrne was in part abrogated on other substantive grounds unrelated
to the sanctions issue, see Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008), the analysis of the dismissal and sanction issues relevant to this case
remains very much good law. Byrne in fact was just re-approved and followed by
the Eleventh Circuit last month in Jackson v. Bank of America, N.A., 898 F.3d
1348, 1358, 1360 (11th Cir. 2018), and specifically with respect to the imposition of
monetary sanctions in that case where plaintiff’s counsel, “in responding to the
District Court’s order requiring a repleader, he stood fast, brazenly filing a facsimile
of his initial pleading.”
Former Counsel here was working off the same playbook as the lawyers in
Byrne and Jackson. Counsel was expressly made aware of the many defects in his
original pleading, both by the original motions to dismiss and Judge Williams’s
Order. Undeterred, “he stood fast, brazenly filing a facsimile of his initial pleading”
15

albeit before a new judge. Following settled Eleventh Circuit caselaw, Judge Scola
dismissed this “incomprehensible” amended complaint. Because we are bound by
the same caselaw with respect to the section 1927 motion now pending before us, we
similarly must impose monetary sanctions, in the form of a reasonable fee award, to
compensate for the time and expense incurred by Defendants in responding “for a
second time” to a new complaint that was as defective as the original. Therefore,
the Homestead Defendants are entitled to an award of attorney’s fees under 28
U.S.C. §1927, and their motion for a determination on their entitlement to
attorney’s fees is GRANTED.
IV. CONCLUSION
Based on the foregoing considerations, the Homestead Defendants’ motion to
determine entitlement to attorney’s fees [D.E. 92] is GRANTED. The Homestead
Defendants shall file their motion for a determination of award for attorney’s fees
within thirty (30) days, including any supporting documentation necessary to
determine the hourly rate and number of hours reasonably expended.

The

Homestead Defendants should first confer with Plaintiffs and Former Counsel with
respect to the amount sought to reach agreement if possible. The Court will then
determine what attorneys’ fees are compensable, in light of this entitlement order,
and issue a Report and Recommendation to that effect.
entitlement issue are stayed.

Any objections to the

If any party desires to appeal the entitlement

question, an appeal may be preserved by filing timely objections to the final Report
and Recommendation. No objections or appeal need be filed to this Order as it is
16

only a preliminary determination with instructions for the parties to complete
briefing on the Defendants’ request for fees.
DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of
September, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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