Petteway et al v. Galveston County, Texas et al
Filing
89
MEMORANDUM OPINION AND ORDER denying 84 MOTION for Attorney Fees (Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 3)
United States District Court
Southern District of Texas
ENTERED
In the United States District Court
for the Southern District of Texas
October 31, 2023
Nathan Ochsner, Clerk
GALVESTON DIVISION
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No. 3:13-cv-308
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HONORABLE TERRY PETTEWAY, ET AL., PLAINTIFFS,
v.
GALVESTON COUNTY, TEXAS, ET AL., DEFENDANTS.
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MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
This matter was recently reassigned to this court from Judge Gregg
Costa, who was sitting by designation before he returned to private practice
last year. The court now takes up a motion for costs and attorneys’ fees and
a bill of costs. Dkts. 83, 84. The court will deny the motion for attorneys’ fees,
experts fees, and other litigation expenses. Dkt. 84. Further, the court will
sustain in part and overrule in part the plaintiffs’ objections to the
defendants’ bill of costs. Dkt. 83.
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Background
In August 2013, the plaintiffs 1—the Honorable Terry Petteway, Derrick
Rose, Michael Montez, Penny Pope, and Sonny James—sued the
defendants—Galveston County and Judge Mark Henry—after the Galveston
County Commissioners Court adopted an electoral plan in 2013 that reduced
the number of constable and justice-of-the-peace precincts. Dkt. 1. They
alleged that the 2013 plan illegally diluted the voting power of Galveston
County’s Black and Latino voters under § 2 of the Voting Rights Act. Id.
¶¶ 57–59. They also averred that the defendants violated the Fourteenth and
Fifteenth Amendments by intentionally discriminating against the county’s
Black and Latino residents. Id. ¶¶ 60–64.
The plaintiffs requested an expedited trial setting and docket-control
order, Dkt. 5, and the court entered an order setting trial in January 2014.
Dkt. 14. In October 2013, the defendants moved to dismiss the complaint
under Fed. R. Civ. P. 12(b)(6). Dkt. 16. The motion was not ruled on before
trial.
The court convened a bench trial on January 14, 2014. Dkt. 74. Before
beginning trial, the defendants re-urged the arguments in their Rule 12
1 Roosevelt Henderson was previously a plaintiff in this case but passed away
in January 2022. Dkt. 55.
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motion, but the court announced it would carry the motion until making its
final rulings. Id. at 21–25; see also Minute Entry (Jan. 16, 2014). After the
plaintiffs rested and the defendants orally moved for a partial judgment, the
court entered judgment against the plaintiffs’ vote-dilution claim. Dkt. 76
at 88–90; see also Dkt. 78 at 1. But the court allowed the intentionaldiscrimination claims to proceed. Dkt. 76 at 90–91. The bench trial
concluded on January 16. Id. at 312. After trial, the court ordered the parties
to submit post-trial briefs by January 31. Dkt. 41. Both parties timely filed
their briefs. Dkts. 50, 51.
Following the bench trial eight years later, the court concluded that the
defendants were not motivated by discriminatory intent when adopting the
2013 plan. Dkt. 78. It separately rendered judgment for the defendants on
the plaintiffs’ intentional-discrimination claim. Dkt. 79.
Legal Standard
A. Motion for Attorneys’ Fees
District courts may enter a post-judgment award for attorneys’ fees.
Fed. R. Civ. P. 54(d)(2). The parties seeking a fee award must (1) “specify the
judgment and the statute, rule, or other grounds entitling [them] to the
award;” (2) “state the amount sought or provide a fair estimate of it;” and
(3) “disclose, if the court so orders, the terms of any agreement about fees for
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the services for which the claim is made.” Fed. R. Civ. P. 54(d)(2)(B)(ii)–(iv).
In federal-question cases, federal law governs awards of costs and fees.
Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (“A fee award is
governed by the same law that serves as the rule of decision for the
substantive issues in the case.”). The party seeking attorneys’ fees bears the
burden of establishing entitlement to such an award. Amawi v. Paxton, 48
F.4th 412, 412 (5th Cir. 2022).
B. Taxation of Costs
Under Fed. R. Civ. P. 54, “costs—other than attorney’s fees—should be
allowed to the prevailing party.” As defined by statute, recoverable “costs”
are limited to:
(1)
Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3)
Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use
in the case;
(5)
Docket fees under section 1923 of this title; [and]
(6) Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
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28 U.S.C. § 1920. “The Supreme Court has indicated that federal courts may
only award those costs articulated in section 1920 absent explicit statutory
or contractual authorization to the contrary.” U.S. ex rel. Long v. GSDMIdea
City, L.L.C., 807 F.3d 125, 130 (5th Cir. 2015) (quoting Gagnon v. United
Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010)).
A district court has wide discretion when determining whether the
prevailing party is entitled to an award of costs. Edwards v. 4 JLJ, L.L.C.,
976 F.3d 463, 466 (5th Cir. 2020). But there is a “strong presumption” that
the prevailing party is entitled to costs, and the Fifth Circuit has described
the denial of costs as “in the nature of a penalty.” Pacheco v. Mineta, 448
F.3d 783, 793–94 (5th Cir. 2006) (quoting Schwarz v. Folloder, 767 F.2d
125, 131 (5th Cir. 1985)).
Analysis
The defendants ask the court to award them the $375,731.00 in
attorneys’ fees, $80,099.26 in expert fees, and $46,486.42 in other litigation
expenses they incurred as the prevailing parties in this case. Dkts. 84. They
also ask the court to award them other costs as the prevailing party:
$12,770.84 for deposition and trial transcripts as well as $48.88 for copies
and printing. Dkt. 83.
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After reviewing the record and the pleadings, the court holds that the
defendants are not entitled to their attorneys’ fees, expert fees, or other
litigation expenses because the plaintiffs’ case was not frivolous,
unreasonable, or groundless. However, the defendants are entitled to most
of the remaining costs reflected in their bill of costs.
A. Attorneys’ Fees, Expert Fees, and Litigation Expenses
Under federal law, “[e]ach litigant pays his own attorney’s fees, win or
lose, unless a statute or contract provides otherwise.” Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 253 (2010). But “Congress has created
statutory exceptions to this general rule.” Veasey v. Abbott, 13 F.4th 362, 368
(5th Cir. 2021). For example, under 42 U.S.C. § 1988(b) in civil-rights
proceedings, the court may discretionarily “allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.” Similarly, 52 U.S.C. § 10310(e)
provides that “[i]n any action or proceeding to enforce the voting guarantees
of the fourteenth and fifteenth amendment, the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee, reasonable expert
fees, and other reasonable litigation expenses as part of the costs.” These
statutes “are ‘identically construed’ because they share similar ‘language and
purpose.’” Veasey, 13 F. 4th at 368 (quoting Davis v. Abbott, 781 F.3d 207,
213 n.6 (5th Cir. 2015)).
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The Voting Rights Act “limits fee-shifting for prevailing defendants in
civil-rights cases to instances where the ‘plaintiff’s action was frivolous,
unreasonable, or without foundation.’” Vaughan v. Lewisville Indep. Sch.
Dist., 62 F.4th 199, 203 (5th Cir. 2023) (quoting Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978)). This “stringent standard applicable
to defendants is intended to ensure that plaintiffs with uncertain but
arguably meritorious claims are not altogether deterred from initiating
litigation by the threat of incurring onerous legal fees should their claims
fail.” Myers v. City of West Monroe, 211 F.3d 289, 292 n.1 (5th Cir. 2000)
(quoting Aller v. N.Y. Bd. of Elections, 586 F. Supp. 603, 605 (S.D.N.Y.
1984)).
“Even when the law or the facts appear questionable or unfavorable at
the outset, a party may have an entirely reasonable ground for bringing suit.”
Christiansburg Garment Co., 434 U.S. at 422. Concerning frivolousness, a
district court may consider several factors:
whether the plaintiff established a prima facie case, whether
squarely controlling precedent foreclosed the plaintiff’s legal
argument, whether the plaintiff’s evidence was so lacking that
there is no basis from which to say the claims were not frivolous,
whether the defendant offered to settle, and whether the
plaintiff’s claim was so obviously meritless that it was dismissed
prior to trial.
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Vaughan, 62 F.4th at 204–05 (cleaned up). It must also “resist the
understandable temptation to engage in post hoc reasoning by concluding
that, because a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation.” Christiansburg Garment Co., 434 U.S.
at 421–22. The fact that a plaintiff ultimately loses “is not in itself a sufficient
justification for the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14
(1980).
Improper Pleading
At the onset, the plaintiffs contend that the defendants are not entitled
to attorneys’ fees because they never pleaded for them. Dkt. 85 at 5–6.
Procedurally, this argument is a non-starter. The defendants never had an
opportunity to plead for attorneys’ fees because the court never ruled on their
first responsive pleading—the Rule 12 motion to dismiss. See Dkt. 16. In
procedural situations where a party could not have been required to request
fees, the Fifth Circuit has allowed a party to seek them after the fact. See
United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 765 & n.4 (5th Cir.
1996) (relying on Engel v. Teleprompter Corp., 732 F.2d 1238, 1240 (5th Cir.
1984)). The court will allow the defendants to seek an award of attorneys’
fees now.
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Frivolous, Unreasonable, or Groundless
On the merits, the parties agree that the defendants are the prevailing
party but disagree on whether the defendants are entitled to attorneys’ fees
under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e). To demonstrate that the
plaintiffs’ claims were frivolous, unreasonable, or groundless, the defendants
merely restate the court’s findings during and after trial. Dkt. 84 at 9–10.
They argue that the plaintiffs’ vote-dilution claim was “groundless from the
start” because under the 2013 plan “the percentage of minority Galveston
County residents living in a majority-minority district was increased.” Id.
at 9. And for the plaintiffs’ intentional-discrimination claims, the defendants
echo the court’s finding that “it is hard to ascribe discriminatory intent to the
change when it left minority voters with control of a greater percentage of
the JP/Constable precincts.” Id. at 10 (quoting Dkt. 78 at 2). Finally, they
highlight that they invited the county’s Democratic Party chair to participate
in drawing the new precinct lines. Id.
In response, the plaintiffs argue that the defendants “made no effort”
to apply the factors outlined above. Dkt. 85 at 9. They emphasize that the
court did not dismiss their claims under Fed. R. Civ. 12 (b)(6) before trial and
denied the defendants’ motion for partial judgment on the intentionaldiscrimination claim. Id. at 9–10. Additionally, the plaintiffs allege that
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defendants did not attempt to settle the matter before trial. Id. at 10. Finally,
they contend that “[t]he fact that the court required eight years to render its
final decision in this case also weighs against a frivolous finding.” Id.
After reviewing the record, the court concludes that the defendants
failed to show that the plaintiffs’ claims were frivolous, unreasonable, or
groundless. Initially, the court did not dismiss the claims before trial, even
though the defendants timely filed a Rule 12 motion. See Dkts. 16; 74 at 21–
25. And although “whether a defendant offers to settle a case is of
questionable value in determining whether the plaintiff’s claims are
frivolous,” Myers, 211 F.3d at 292, the defendants do not refute that they did
not attempt to resolve this dispute before trial. See Dkts. 85 at 10; 88.
The plaintiffs also presented “some credible evidence on their claims
during the trial” establishing “the colorable merit of the plaintiffs’ action.”
See Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 1986). Concerning the
vote-dilution claim, the plaintiffs presented some evidence that the 2013
plan would have reduced the percentage of Galveston County residents living
in a majority-minority district. See Dkt. 76 at 45 (discussing the plaintiffs
position that four districts were majority-minority before the 2013 plan).
And contrary to the defendants’ claims, the plaintiffs presented novel legal
arguments that distinguished prior precedent. See id. at 46–52. Although the
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court disagreed and ultimately rendered judgment for the defendants, that
does not mean that the plaintiffs’ vote-dilution claim was without any
foundation. See Jones v. Tex. Tech. Univ., 656 F.2d 1137, 1146 (5th Cir. 1981)
(“Because the court’s findings appear to be no more than reiteration of its
ultimate conclusions on the merits of [the plaintiff’s] claim . . . , the court’s
findings of fact fall short of supporting its legal conclusion that [the
plaintiff’s] lawsuit was frivolous.”).
The defendants’ attacks on the intentional-discrimination claim fare
no better. The court found that “[b]oth sides presented evidence that
supports their position.” Dkt. 78 at 1–2. Further, the defendants offered no
controlling precedent that foreclosed the plaintiffs’ legal arguments before
or during trial. See Dkt. 84 at 10. So there is no reason to conclude that the
plaintiffs pursued a frivolous or otherwise unreasonable claim at trial.
Because the above factors weigh against awarding attorneys’ fees, the
court exercises its discretion to deny the defendants’ motion for an award of
attorneys’ fees, expert fees, and other litigation expenses. Thus, the
defendants’ motion is denied. Dkt. 84. To the extent the plaintiffs’ objections
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to the bill of costs overlap with the motion for attorneys’ fees, see Dkt. 86
at 4–6, those objections are sustained. 2
B. Taxable Court Costs
The plaintiffs also object to the defendants’ bill of costs. Dkt. 86.
Although the plaintiffs do not contest the court awarding the defendants
$48.88 for printing and copying, they argue that the court should not award
the defendants $1,558.59 for deposition transcripts and $11,212.25 for trial
transcripts. Id. at 3–5. The court addresses these objections in turn.
No Itemized Invoices
First, the plaintiffs object that there is “insufficient documentation to
support [the] amount” request for deposition and trial transcripts because
the defendants “merely state the amount” without any indication of their
necessity for use in the case. Dkt. 86 at 3–4.
A district court may, in its discretion, deny costs when a party has not
provided an itemized breakdown of the costs incurred and reasons for their
necessity. Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). But just
because the defendants “did not precisely itemize” its costs or provide
In the alternative, the defendants ask the court to “award the statutory
witness fees pursuant to 18 U.S.C. § 1821.” Dkt. 84 at 12. Congress repealed this
statute about three years ago. Consolidated Appropriations Act, Pub. L. No. 116260, Div. O, Title X, § 1002(8). So the court will not award any fees under § 1821.
2
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itemized invoices does not prevent the court from awarding these fees.
United Teacher Assocs. Ins. Co. v. Union Lab. Life Ins. Co., 414 F.3d 558,
574 (5th Cir. 2005). A party meets its burden by providing “some
demonstration” that costs “necessarily result from that litigation,”
Fogleman, 920 F.2d at 286, such as submitting an “appropriate declaration
under penalty of perjury that the costs were correct and ‘necessarily incurred
in this action.’” United Teacher Assocs. Ins. Co., 414 F.3d at 574.
The defendants submitted a declaration from their counsel Joseph
Nixon, who declared under penalty of perjury that the deposition and trial
transcripts were “necessarily obtained for use in the [l]itigation.” Dkt. 83-1
¶¶ 6(a), (b). Mr. Nixon also explained why they did not attach itemized
invoices, noting that they are “no longer available from the firm or counsel”
because he “moved to a different firm and then to an outside agency.” Dkt. 87
¶ 10. His declaration meets the minimum requirements to demonstrate their
necessity to this case. Still, the court discretionarily finds that a 20%
reduction is appropriate given the lack of invoices, which prohibits the court
from verifying Mr. Nixon’s statements. The court sustains the plaintiffs’
objection in part and overrules in part.
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Expedited Trial Transcripts
Second, the plaintiffs object to the defendants’ request for an award
associated to any “rush fees” for trial transcripts. Dkt. 86 at 3–4. They argue
that the defendants do not “indicate which post[-]trial motions required the
use of the transcripts or why they could have been necessary for an appeal.”
Id. at 4.
The cost of obtaining expedited trial transcripts is generally “not
taxable unless prior court approval of expedition has been obtained or the
special character of the litigation necessitates expedited receipt of the
transcript.” Fogleman, 920 F.2d at 286. Given the fast-paced nature of this
Voting Rights Act case, the plaintiffs’ request for an expedited trial, the very
brief discovery period, and the two-week period allowed for post-trial
briefing, the court is convinced that the defendants’ expedited transcripts
were justified under the circumstances. See Evert Fresh Crop. v. Pactiv
Corp., No. 4:09-cv-1936, 2011 WL 2672353, at *2 (S.D. Tex. July 7, 2011).
The court overrules this objection.
After the 20% reduction, the court awards the defendants $10,216.67
for costs related to deposition and trial transcripts.
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*
*
*
As provided above, the court denies the defendants’ motion for
attorneys’ fees, experts fees, and other litigation expenses. Dkt. 84. It
sustains in part and overrules in part the plaintiffs’ objections to the bill of
costs. Dkts. 83, 86.
The court orders that the defendants recover from the plaintiffs $48.88
for printing and copies along with $10,216.67 for deposition and trial
transcripts—for a total award of $10,265.55.
Signed on Galveston Island this 31st day of October, 2023.
__________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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