McDonough et al v. City of Homestead et al

Filing 143

ORDER granting in part and denying in part 124 Motion for Attorney Fees; granting 125 Motion for Sanctions; denying 125 Motion for Attorney Fees; granting in part and denying in part 135 Report and Recommendations. Certificate of Appealability: No Ruling; granting in part and denying in part 136 Report and Recommendations. Certificate of Appealability: No Ruling. Signed by Judge Robert N. Scola, Jr. See attached document for full details. (zlz)

United States District Court
for the
Southern District of Florida
James Eric McDonough and
Vanessa McDonough, Plaintiffs,
v.
City of Homestead, and others,
Defendants.

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) Civil Action No. 17-23227-Civ-Scola
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Opinion Order Adopting in Part the
Magistrate’s Report And Recommendations
This matter was referred to United States Magistrate Judge Edwin G.
Torres for a report and recommendation on the Defendants’ motions for
attorney’s fees and costs. (ECF Nos. 95, 127.) On September 25, 2018, Judge
Torres issued two orders granting motions to determine entitlement to
attorney’s fees filed by the Homestead Defendants1 and the Monroe
Defendants.2 (the “Orders,” ECF Nos. 118, 119.) The Orders found that the
Homestead Defendants and Monroe Defendants were entitled to an award of
attorney’s fees incurred in defending this suit to be paid by the Plaintiffs James
Eric McDonough and Vanessa McDonough (the “McDonoughs”) under 42
U.S.C. § 1988, and the McDonoughs’ former counsel Gary Ostrow and his law
firm Gary Ostrow P.A. (collectively “Ostrow”) under 28 U.S.C. § 1927. For the
amount of fees, Judge Torres recommended through two separate reports that
the Homestead Defendants recover $20,863.78 and the Monroe Defendants
recover $17,928.60. (the “R&Rs,” ECF Nos. 135, 136.) The McDonoughs and
Ostrow timely objected to the Orders and R&Rs. (ECF Nos. 137, 138, 139.)
After conducting a de novo review of the entire case file; and reviewing the
parties’ submissions on the sanctions issue, the Orders and R&Rs, the parties’
objections and responses to same, and the applicable law; the Court affirms
and adopts in part the Orders and R&Rs (ECF Nos. 118, 119, 135, 136), as
set forth below.
The “Homestead Defendants” are the City of Homestead, Jeff Porter,
George Gretsas, Alexander Rolle, Alejandro Murguido, Thomas Surman, John
Buchanan, D. Snyder, M. Pasquarella, L. Zavaleta, A. Pearce, J. Cruz, Veronica
Blanco, Mario Arzuaga, and Thomas Mead.
1

The “Monroe Defendants” are Monroe County, Rick Ramsay, Luis Gomez,
and Chad Scibilia.
2

The Court does not adopt the portions of the Orders and R&Rs
recommending the entry of sanctions against the McDonoughs under 42 U.S.C.
§ 1988. Prevailing party fees are only available to a defendant under that
statute “upon a finding that the plaintiff’s action was frivolous, unreasonable,
or without foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). This case was
dismissed on shotgun pleading grounds because Ostrow refiled a “tangled mess
comprising 94 pages of incoherent and largely irrelevant conclusory
allegations,” after Judge Williams previously notified Ostrow of similar
concerns in an earlier dismissal order in a related case. (ECF No. 80.) Because
the dismissal was on shotgun pleading grounds, the Court’s prior orders do not
provide a basis to find this case “frivolous, unreasonable or without
foundation” on the merits. Fox, 563 U.S. at 833. And it is not appropriate to
undertake such a merits inquiry for the first time at the sanctions stage,
particularly where the earlier dismissal order was already affirmed on appeal.
See McDonough v. City of Homestead, 771 F. App'x 952 (11th Cir. 2019); see
also Hensely v. Eckerhart, 461 U.S. 424, 437 (1983) ("A request for attorney's
fees should not result in a second major litigation."). None of this is to say that
the case ever had merit, but rather that it was poorly litigated and dismissed
for that reason. That was not the McDonoughs’ fault and they will not be
sanctioned for their lawyer’s incompetence. The Monroe Defendants’ and
Homestead Defendants’ requests for attorneys’ fees against the McDonoughs
under 42 U.S.C. § 1988 are denied.
But the Court agrees with Judge Torres that the Homestead Defendants
and Monroe Defendants are entitled to recover attorney’s fees against Ostrow
under 28 U.S.C. § 1927. The Court further agrees with Judge Torres as to the
recommended amount of fees to be recovered by each of those defendants. As
such, the Orders and R&Rs as to the Homestead Defendants’ and Monroe
Defendants’ entitlement to section 1927 sanctions, and the amount of those
sanctions, to be recovered against Ostrow are affirmed and adopted in full.
Ostrow’s objections (ECF No. 137) are overruled for the reasons stated in the
Orders and R&Rs. Cf. Jackson v. Bank of America, N.A., 898 F.3d 1348, 135960 (11th Cir. 2018) (ordering counsel to show cause why Rule 38 sanctions
should not be imposed for appealing order dismissing shotgun complaint);
Cramer v. State of Fla., 117 F.3d 1258, 1265 (11th Cir. 1997) (same).
In sum, the Orders and R&Rs (ECF Nos. 118, 119, 135, 136) are
affirmed and adopted in part, and the Homestead Defendants’ and Monroe
Defendants’ motions for attorneys’ fees (ECF Nos. 124, 125) are granted in
part and denied in part. The Court awards the Homestead Defendants

$20,863.78 in attorneys’ fees to be paid by Ostrow. The Monroe Defendants
are awarded $17,928.60 in attorneys’ fees to be paid by Ostrow.
The Clerk is directed to close this case. All pending motions are denied
as moot.
Done and ordered, in Chambers, at Miami, Florida on August 6, 2019.

Robert N. Scola, Jr.
United States District Judge