HomeMy WebLinkAboutR-92-0640J-92-648
9/4/92 9 2_ 6340
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE, PURSUANT TO THE ORDER OF THE FEDERAL
COURT, TO PAY ATTORNEY JOEL LUMER THE SUM OF
$71,800.54 IN REASONABLE ATTORNEY'S FEES PLUS
ACCRUED INTEREST AND TO PAY ATTORNEY JOHN J.
SPIEGEL THE SUM OF $48,938.16 IN REASONABLE
ATTORNEY'S FEES PLUS ACCRUED INTEREST IN FULL
AND COMPLETE SATISFACTION OF THE ORDER OF THE
COURT AWARDING SUCH FEES IN UNITED STATES
DISTRICT COURT CASE NO. 88-412-CIV-RYSKAMP,
SUCH FUNDS TO BE PROVIDED FROM THE INSURANCE
AND SELF-INSURANCE TRUST FUND.
WHEREAS, attorneys Joel Lumer and John J. Spiegel
Arepresented the plaintiff in the federal court case of Mary
Meynarez vs. City, Case No. 88-412-CIV-SCOTT in which the
plaintiff prevailed on her claim for violation of civil rights
under 42 U.S.C. Section 1983; and
WHEREAS, a prevailing plaintiff in an action under 42 U.S.C.
Section 1983 is entitled to reasonable attorney's fees pursuant
to 42 U.S.C. Section 1988; and
WHEREAS, attorneys Joel Lumer and John J. Spiegel filed a
motion to recover attorney's fees in the amount of $188,734.65
and $151,812.82 respectively for a total $340,574.47; and
WHEREAS, after the City of Miami filed a memorandum in
opposition to the requested fees, the Court (Judge Ryskamp)
issued an order awarding $71,800.54 to attorney Joel Lumer and
CITY COPOUSSION
MEETING OF
0 CT 0 8 1992
Resolution No.
92-- 640
$48,938.16 to attorney John J. Spiegel for a total of
$120,738.70, which is $219,835.77 less than the amount requested;
and
WHEREAS, plaintiff filed an appeal from Judge Ryskamp's
order in an effort to recover the entire $340,574.47 requested,
but the federal appellate court ruled against plaintiff and
affirmed Judge Ryskamp's order awarding a total of $120,738.70 in
attorney's fees;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized to
pay attorney Joel Lumer the sum of $71,800.54 in reasonable
attorney's fees plus accrued interest and to pay attorney John J.
Spiegel the sum of $48,938.16 in reasonable attorney's fees plus
accrued interest in full and complete satisfaction of the order
of the Court awarding such fees in United States District Court
Case No. 88-412-CIV-RYSKAMP, such funds to be provided from the
Insurance and Self -Insurance Trust Fund.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 8th day of
ATTES .
F
MATTY HIRAI
CITY CLERK
XAVIER L.
, 1992.
I
92- 640
-2-
y
SELF—INSURANCZ TRUST FUND RSVIEWs
w
GN7 SUJAN S RA, DIRECTOR
DEPARTMENT OF ISK MANAGEMENT
BUDGETARY REVIEW:
MANOHAR S. SURAN
ASSISTANT CITY D!5p .GER
PREPARED AND APPROVED BY:
ALBERTINE B. SMITH
CHIEF ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
ff.
92- 640
l ` CITY OF MlAMI, FLORIDA 19
INTER-CIFFICE MEMORANDUM
TO Honorable Mayor and Members
of the City Commission
FROM A • Y"
City A
WoO—1 // /
s, III
DATE : September 3, 1992 FILE : J-92•-648
SU9JECT : Resolution Authorizing Payment
of Attorney's Fees Pursuant to
an Order of the Federal Court
REFERENCES:
ENCLOSURES:
Attached is a proposed Resolution authorizing the Director of
Finance to pay attorney Joel Lumer the sum of $71,800.54 in
reasonable attorney's fees plus accrued interest and to pay
attorney John J. Spiegel the sum of $48,938.16 in reasonable
attorney's fees plus accrued interest in full and complete
satisfaction of the order of the Court awarding such fees in
United States District Court Case No. 88-412-CIV-RYSKAMP.
In brief, attorneys Lumer and Spiegel represented the plaintiff
in the case of Mary Meynarez vs. City of Miami, Case No. 88-412-
CIV- SCOTT/RYSYJW in which the plaintiff prevailed on her claim
for violation of civil rights in the termination of her
employment. As the prevailing party in her civil rights claim,
plaintiff, through her attorneys, filed a motion seeking a total
of $340,574.47 in attorney's fees. The City of Miami filed a
legal memorandum in opposition to the requested fees and,
thereafter, the Court, Judge Ryskamp, issued an order awarding a
total of $120,738.70 in attorney's fees - an amount which is
$219,835.77 less than the amount requested. The plaintiff filed
an appeal from Judge Ryskamp's order but lost. Therefore. Judge
Ryskamp's order awarding $120,738.70 in attorney's fees remains
outstanding. Of the $120,738.70, Joel Lumer was awarded
$71,800.54 and John J. Spiegel was awarded $48,938.16. A copy of
Judge Ryskamp's order and a copy of the opinion of the Eleventh
Circuit Court of Appeals affirming Judge Ryskamp's order are
attached.
AQJ/ABS/sls/M486
attachments
92- 640
,1q_
IN THE UNITED STATES COURT OF APPE
FOR THE ELEVENTH CIRCUIT
No. 91-5523
D.C. Docket No, 88-412-CIV-KLR
DO NOT PUBLISH
FILED
U.S. COURT OF API
ELEVENTH CIRC
AUG 1 81992
MIGUEL J. CCRTEZ
CLERK
MARY MEYNAREZ,
Plaintiff -Appellant,
versus s
CITY OF MIAMI,
Defendant -Appellee.
CARLOS GARCIA,
Defendant.
Appeal from the United States District Court
for the Southern District of Florida
August 18, 1992 )
Before HATCHETT, Circuit Judge, JOHNSON* and HENDERSON
Circuit Judges.
PER CURIAMs
AFFIRMED. See Ilth Cir. R. 36- 1.
*Bm Rule 34-2(b), Rules of the U.S. Court of Appeals for the
Eleventh Circuit.
92- 640
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 88.412-CIV-SCOTT
(RYSXAMP)
MARY MEYNAREZ,
Plaintiff,
v.
CITY OF MIAMI,
Defendant.
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION
THe court has independently reviewed the Report and
Recommendation of United States Magistrate Johnson dated October
261 1990. After careful consideration of the parties' objections
and the arguments raised at the hearing in this matter, it is
hereby:
ORDERED and ADJUDGED that Magistrate Johnson's Report and
Recommendation is ADOPTED in its entirety by this court.
DONE and ORDERED at the United States District Court, Miami,
Florida, this -!1;0— day of June, 1991.
cc: John Spiegel
Albertine Smith
Joel Lumer
U.S. Magistrate Johnson
92- 640
SITED STATUS DISTRICT COURT
SOUTRERV DISTRICT OF FI ium
CASE NO: 88-412-CIV-SCOTT
MARY MEYNARESt
Plaintiff's),
vs
CITY OF MIAMI,
Defendant(s).
THIS CAUSE is before the Court on plaintiff's Motion for Award
of Attorney's Fees and Reasonable Expenses of litigation. (Docket
Entry 151). The matter was referred to the undersigned United
States Magistrate on June 20, 1990 by the Honorable Thomas E.
Scott, United States District Judge for the Southern District of
Florida and became ripe for judicial review on October 3, 1990,
with the filing of plaintiff's Response to Notice of Supplemental
Authority.'/
FACTS
Plaintiff was hired by defendant, City of Miami (the "City")
as finance manager on February 16, 1962 and was appointed assistant
finance
director
in 1985. On
December
9, 1986 at
a meeting
with
finance
manager
Carlos Garcia
("Garcia")
she was
terminated
from
the City's employ. Thereafter, On December 17, 1986 plaintiff
signed a Waiver and Release Agreement (the "Release") wherein she
l/ tnr*uant to the r*gw@t of the part!*@ the un"nign*d United States VApi@trate did cot conduct
C baarinq on this scatter and proceeded sole' nd cc Us pleadings aaffidavits tiled Derain. in
629 f.2d 1022, 1020 (sth Cir. 1940) a!t d, 717 /.2d idd! (19Si)7 Mazda" V. NO o
•30, 431 13TA Cit. 1973).
92- 640
agreed, in return for receiving discretionary severance pay in the
amount of ten thousand dollars ($10,000.00), to waive all existing
rights and remedies against the City and its employees with respect
to her employment or her termination. Simultaneous therewith,
plaintiff signed a document entitled Memorandum of Understanding,
the second page of which set forth the severance pay and other
benefits received by plaintiff.
in count I of her two count complaint plaintiff sought
reinstatement with back pay and interest, compensatory damages,
attorney's fees and costs against the City of Miami for her
discharge in violation of 42 U.S.C. S 1983. In count II, plaintiff
sought in addition to those damages sought under count I, punitive
damages against City of Miami Finance Manager Carlos Garcia for
having conspired to cause her discharge in violation of 42 U.S.C.
S 1983.
On December 13, 1989 due to a previously entered court order
granting defendant a continuance of the trial date, plaintiff
agreed to voluntarily dismiss her claim against Garcia on the
proviso that the court order granting the continuance be vacated
and the case proceed to trial as planned.=/ Thereafter, the
Honorable Thomas B. Scott found defendant City liable under count
I and the case proceeded to jury trial on two elements of damage:
pain, mental anguish and humiliation and out of pocket expense.'/
_/ gU Osdos of the Smorable Tboars B. Scott dated Deosnbw 13. ISIS (Docket sntsT 103).
3/ AM Me6brandm Decision and order of the foeorable Tbc� 1. Scott dated December 13, 1949
(Do;k" zatrT 104) and Msbrandm Ordw of the sonorable TWO" E. Scott dated JanmuT 14, 1990 (Docket antrT
2
92- 640
The jury, after lees than one hours deliberation returned a verdict
against defendant City awarding plaintiff seven thousand five
hundred dollars ($7,500.00) for pain, mental suffering and
humiliation and zero dollars ($0.00) for her out of pocket
expenses.`/ Finding the jury's verdict not only against "the great
weight of the evidence, but . . . against the uncontroverted
evidence" presented, the District Court sue av�e awarded
plaintiff a new trial on all elements of damages/
Thereafter, on April 24, 1990 Judge Scott entered an Order
granting plaintiff's Motion for Partial Summary Judgment for the
"out-of-pocket" damages suffered by plaintiff in the amount of
twenty four thousand eighty three dollars and twenty one cents
($24,083.21)4/ Consequently, left for determination were the
damages to be awarded plaintiff for her pain, mental suffering and
humiliation, which having later been settled by the party's,
resulted in the cases dismissal.'/ Currently pending before the
court is plaintiff's Motion for Award of Attorney's Fees and
Reasonable Expenses of Litigation, the merits of which is the
subject of the within Report and Recommendation.
4/ Tbis, despite the feat toot plaintiff offered into Nid0000 -overt" docaeeatation of
oat -of -pocket expeseem sod oresrbelaing, WMAIleamm testimony of family membare am frisods concerning the
emotional trauma maffered by plaintiff en the await Of bes +-songful disoaarge.
S / 2U Mamorandam Order of the N000rable Tbamae s. SO tt, date Marsh to 1"0 (Dock" kinUT 127).
4/ LU lartial riaal Judgment of the Wearable Tbomss i. Ooatt dated>►pril 24, 1990 (Docket sotry
147).
7/ ift Order of DieaisAal of the •ceorAble Tbasas !. 60"t dated MAY 29, 19f0 (Docket antry 150).
3
92- 640
LEGAL AXALYS1S
1.
1�1T'1bRI�IBY' S FHSS
i
Under 42 U.S.C. S 1988 the Court, in its discretion, may award
the prevailing party in an action under 42 U.S.C. S 1983 a
reasonable attorney's fee as part of its costs. A plaintiff is a
prevailing party for purposes of 42 U.S.C. S 1998 not only upon
obtaining relief by a judgment, but also upon obtaining a monetary
settlement or a change in conduct that redresses the plaintiff's
grievances. Hewitt v. Helms, 482 U.S. 755, 761 (1987). In the -
instant case plaintiff obtained an out-of-pocket damage award in
the amount of twenty four thousand eighty three dollars and twenty
one cents ($24,083.21), by court order dated May 29, 1990'/ and a
monetary settlement of an additional twenty five thousand dollars
($25,000.00_). Finding plaintiff a prevailing party, this Court,
in the exercise of its discretion, concludes a reasonable
attorney's fee is warranted. The remaining discussion shall focus
on the appropriate amount.'/
The starting point in any "reasonable Fee" determination is
the number of hours reasonably expended on the litigation
t/ in Partial Final Judgment of the soeorable Those it. Scott dated April :a, lose (Docket tarsi
pI llaiatitt soves foe an waned of attorows foes of cue hundred lift, ass tbouswsd eight bundavd
twOLve dollars sad eighty two cents ($151, 612.82) for John J. featgel and ors hundred eighty eight thonraad
seven hundred tbircy tons dollars and sixty four cents (s1it.'77d.N) for Joel s. Lusee and aspens" of
litigation of tons tbonsaaA one hundred twenty vm dollars and .avast, five nests (i4•122.75).
4
92-- 640
a 14
Multiplied by the reasonable hourly rate. Iisnsley v. Eckerhart,
461 U.S. 424 (1983). The resulting figure, known as the
"Lodestar", may thereafter be enhanced or reduced based on the
results obtained or the risk of non-payment. Pennsylvania v.
Delaware Valley Citizens Council II, ("Delaware II") 483 U.S. 711,
745 (1987); Pennsylvania v. Delaware Valley Citizens -Council I,
("Delaware I") 478 U.S. 546 (1986). Enhancement of the Lodestar,
however, should be made only in exceptional cases where need and
justification for such enhancement are readily apparent and are
supported by clear evidence of record. Delaware ii, 483 U.S. at
728. $M also Norman v. Housing Authority of cLty of Mont92MO y,
836 F.2d 1292, 1302 (lath Cir. 1988). Finally, in certain
instances the court may compensate for the delay factor by either
basing the award on current rates or by adjusting the fee based on
historical rates to reflect its present value. Missouri V.
Jenkins, ` U.S. _,,,_, 109 S. Ct. 24631 24691 105 L.Ed.2d 2291 239
(1989); Delaware 11, 483 U.S. at 716; Lattimore v. Oman
Construction, 868 F.2d 437, 440 (filth Cir. 1989).
A. Reasonable Hourly Rats
The burden is on the moving party to establish the prevailing
market rate, which is the rate charged in the community by lawyers
of reasonably comparable skill, experience and reputation for
similar services. Blum v. Stenson, 465 U.S. 886, 895 and 896 n.
11 (1984); NAACP v. City_ of Evergreen, 812 F.2d 1332, 1338 (filth
cir. 1987); Gaines v. Dougherty Co. Bd. of Education, 775 F.2d
5
92- 640
15650 1571 (filth Cir. 1985). Satisfactory evidence of the market
rate requires more than the more affidavit of the attorney
performing the work. Blum, 465 U.S. at 996 n. 11. Also
insufficient is testimony that a given fee is reasonable; evidence
must be of rates actually billed and paid. Hensley, 461 U.S. at
439 n. 15. Such evidence may be adduced from charges of lawyers
under similar circumstances or by opinion evidence. Norman, 836
F.2d at 1299. When analyzing the market rates being attested to,
the district court may wish to consider any of the twelve factors
enumerated
in Johnson v. Georgia
-Highway Eggress , Inc. 488
F.2d 714
(5th Cir.
1974).10/ Delaware
Valley 11, 478 U.S. at
564-569.
Analysis of these factors may suggest that the comparable offered
is not relevant to the issues before the court or may effect the
weight of the comparable being offered.
Both plaintiff and defendant agree that an hourly rate of one
hundred seventy five ($175.00) is reasonable and in line with the
rate charged by attorneys of reasonably comparable skill,
experience and reputation for similar services.1I In light of the
party's agreement in this regard and finding record evidence to
support this position, this Court concludes the hourly rate billed
by plaintiff's attorneys reasonable and in accordance with the
10� TbIR 12 factors saaosratad in Johnson are " follows• (1) the ties and labor required; (2) the
novsltY tad difficulty of the questiont (3) the skill requisite to perform the legal service propsrlyl (4) us
preclusion of other employment by the attomm due to acceptance of the asap (b) the customary tee/ (6)
whsth" the fee is fixed or cou"entr (7) time liaitationa imposed by the client of the circumstances, (s)
the amount involved and the results obtslnedt (9) the experience, reputation, and ability of the attorney! (10)
the "undesirability of the caesl (11) the nature and lsogth of the proteselan" seletieaehip with the cliemtt
and (12) awards in sialiac canes. No � , shh f.ld, at 717-71/. These tartars were takes from the
American Bar Association Code of Aso eesi poanibility, Disciplinary Rule 2-106 (1940).
il/ ht page 1 of defendant's Resposss to notice for Award of Attoresy's fees and 1leasonable
txpsaess of Litigation, the City states •Defendant dose sot ooasees that sae hrmdsed seventy Liw dollars
(i17S.00) per hoar is a ressosa0le lodestar amount•. This Coast, elms disoonats the aseerticas made Sn the
affidavits of ilisibeth J. Dn/reses and Joseph X. Fla" to the oontrary.
6
92- 640
J
prevailing market rates.
B. Reasonable Hours
The next step in the analysis of the loadstar is the
ascertainment of the amount of "reasonable hours." "CElxcessive,
R
2
redundant, or otherwise unnecessary" hours should be excluded from r
the amount claimed. Henssllev_, 461 U.S. at 434. Thus, fee
applicants are required to use "billing judgement." Id. at 437.
These excluded hours are those which are unreasonable to bill to
a client "irrespective of the skill, reputation or experience of
counsel." man, 836 F.2d at 1301. Generalized statements that
the time spent was reasonable or unreasonable, are not particularly
helpful and are entitled to little weight. Hensley, 461 U.S. at
439 n.15. Further, was the district court must be reasonably
precise in excluding hours thought to be unreasonable or
unnecessary, so should the objections and proof from fee
opponents." Norman, 836 F.2d at 1301.
In addition to deducting excessive redundant and unnecessary
hours the district court must also deduct for time spent on
unsuccessful claims. Ronalev, 461 U.S. at 435. The fee applicants
failure to prevail on every contention raised in the lawsuit is not
a justification for reduction of the fee award. Lattimore, 868
F.2d at 440. Unless the fee applicant obtained only limited
success, where the successful and unsuccessful claims involved
related legal theories no fees should be deducted. Hensley_, 461
U.S. at 424; Avila v. Coca-Cola Co., 849 F.2d 5110 514 (llth Cir.
7
92- 640
1988); P02ham_v._ Citv_of__Kennesaw, 820 f.2d 1570, 1579 (filth Cir.
1987). "A plaintiff obtains only limited success when the
substantive relief granted is something less than that which he
would have been granted had he succeeded on the unsuccessful
claim." Avila, 849 F.2d at 514. S2& also Erkins v. Bryan, 785 F.2d t
s
1538, 1545-1546 (filth cir. 1986), cert. denied, 479 U.S. 960,
(1986). in determining whether to exclude hours on claims for E
F
which plaintiff did not obtain relief, the "court must consider the
F
relationship of the claims that resulted in judgment with the }
claims that [did not] and the contribution, if any, made to success
by the investigation and prosecution of the entire case." Jones -
v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981).
In the instant case plaintiff's attorneys Joel v. Lumer and
John J. Spiegel have submitted affidavits showing that they
expended a total of three hundred twenty six point ninety five
hours (326.95) and two hundred twenty point fifty seven hours
(220.57) on this case, respectively.i2/ Plaintiff's attorneys
state, under oath, that all entries listed on the affidavits were
taken directly from contemporaneously maintained time sheets, are
broken down by five minute intervals and are separate and distinct
from hours spent in related state court cases.13/
Defendant takes issue with the number of hours claimed arguing
a reduction is appropriate to account for the claims on which
12/ j! Affidavit of Joni V. Lamar and Jolla J. spiew attaabed to plaiatiff'a MUGS for Award
Of At%GVMW's !Ma aad lteaaoaable atp&aeea of Litigatiae. (DOCkat =att7 lil).
13/ 11. Rbi misted state Court *am* referred to arm Inmates V. City of Miami, Fla. 11ttt Cir.
App. Div. no. 48-029-AIP +► C , Fla. llth Cir. am. Jur. Div. 90. 6MS32!!(1!), ty o!
Diu v. Mayaares, Fla. 34, , Mlaei civil service Dowd lsoeeedlogi �IiiT.
8
92- 640
J
plaintiff did not obtain relief. This Court agrees. While
plaintiff prevailed on its claim against the City under Count I for
violation of 28 U.S.C. S 1983, its claim against Carlos Garcia
under count II for conspiracy to cause plaintiffs discharge in
violation of Fla. Stat. S 448.045 was voluntarily dismissed.
Accordingly, plaintiff did not succeed on, or obtain any relief
under, Count iI.
Although plaintiff characterizes the voluntarily dismissed
count against Carlos Garcia for conspiracy as "inextricably
intertwined" with the prevailing count against the City of Miami,l'/
this Court finds otherwise. While the facts surrounding the two
claims may, in some respects, be parallel, the discovery, research
and other legal work required to support the S 1983 claim is very
different from that required to support the Florida statutory
conspiracy claim. That is not to say there is no overlap.
However, it is clear that a significant amount of discovery, legal
research and pleadings ran specifically and exclusively to the
Count II conspiracy claim, thereby making it inappropriate to
compensate plaintiff's counsel for the work performed incident to
that count. Hensley, 461 O.S. at 424; Avila,, 849 F.2d 514; Popham,
820 F.2d 1579.'3/
Further, even if an argument for the relatedness of the two
1d/ g! plsimtlff'• Motion for Award of Attorneys' pees and seasonable ncpmses of Litigation, pg.
6 and Lffidavits of Marilyn Sbar and Mark Sransoa attached theme.
1s / plaiatiff's reliance on the recant Supreme Court oars of Blanchard v. Bergeron, _ C.S.
109 ...:t. 936 107 L.Bd.24 $7, (1966) to distinguish the decisions in , ad9 an p.2d s1d d • $20 p.2d
1576 is misplaced. 2n i the Supra Conn surely held that a efee contract oat impose
an automatic calling an swarm of attosney's fees. 11. at 9N. The courts reference to attorneys being
properly compensated for all time reasonably expanded on a matter does not in any way signal a retreat from the
Supreme coon's longstanding limitations as soak compensation as first sat forth In geulgv, "1 9.9 at 426.
r�
92- 640
counts could be made, a deduction for the fees earned incident to
Count II would nonetheless be appropriate as the relief ultimately
Obtained was considerably leas than possible, had plaintiff
succeeded on the unsuccessful claim. Avila, 849 P'62d at 514. The
relief obtained by plaintiff was an award of twenty four thousand
eighty three dollars and twenty one cents ($24,083.21) for out-of-
pocket expenses and twenty five thousand dollars ($25,000.00) by
way of settlement for emotional pain and suffering. This relief
is considerably different and also less than the damages plaintiff
had sought and perhaps would have received had she succeeded on her
claim for punitive damages against Garcia under Count II. Although
plaintiff makes much of the fact that the claim against Garcia was
dismissed for purposes of expediency having nothing to do with lack
of merit, this is of no consequence. Whether with or without
merit, Count 11 against Garcia was voluntarily dismissed and
plaintiff can not now be found a prevailing party as to that Count.
Hensley, 461 U.S. at 424.
Also of no consequence is plaintiff's speculation as to the
amount, if any, of punitive damages that would have been awarded
to plaintiff had she prevailed. While it's true that Garcia is
not the typical "deep pocket defendant against whom a large
punitive damage award would ordinarily be assesaed, and if it were,
collectedalg/, the fact remains that plaintiff levelled a claim for
punitive damages against Garcia and the potential for prevailing
M rialatiff'a RAS47 Mmaraadn• is Swan of Notion taw tad Reasonable ftpaaaaa of
Utigation, M. f.
10
92- 640
on such claim existed. "/ Accordingly, plaintiff stood to gain even
greater success had she not voluntarily dismissed her punitive
damage claim against Garcia under Count II.
In as much as plaintiff's counsel have not segregated their
time spent in each of the two claims, this Court, in accordance
with the Supreme Court's instruction in HenslevI shall reduce the
award to account for the limited success. Hensley, 461 U.S. at
435-437. As recognized by defendant, Count II was not the major
thrust of the litigational effort. Further, due to the
interrelatedness of the facts involved, a portion of the legal work
expended on Count II can fairly be said to have contributed to the
proving of plaintiff's claim under Count I. Based on the above and
foregoing and having carefully examined the record herein, this
Court concludes a rational factor of 15% appropriate. Accordingly,
this Court shall subtract a total of 156 of the time and fees
requested so as to account for the claim on which plaintiff did not
obtain relief. Hensley, 461 U.S. at 424, 435-437; Avila, 849 F.2d
at 514; Popham, 820 F.2d at 1579.
Thus, as to attorney Joel V. Lumer the reasonable hourly rate
of one hundred seventy five dollars ($175.00) multiplied by the
hourly submission of three hundred twenty six point ninety five
hours (326.95) minus 15• for legal work expended incident to Count
II results in a lodestar of forty eight thousand six hundred thirty
three dollars and eighty one cents ($48,633.81). As to attorney
17 / Ironically if Laded aw* claim for punitive "OR" vas as frivolous u plaintiff appears to
suggest a IInle 11 sanction woald not be inappsoprists. Thin Coact, ewsves, is satisfied that ao amb frivolitY
here elated.
11
92- 640
1 *1
John i. Speigel, the reasonable hourly rate of one hundred seventy
five dollars ($175.00) multiplied by the hourly submission of two
hundred twenty point fifty seven hours ( 220.57 ) minus 15% for legal
work expended incident to Count II results in a lodestar of thirty
two thousand eight hundred nine dollars and seventy nine cents
($32.809.79).
Added to the lodestar should be an amount necessary to
compensate for the delay in payment of fees. Missouri v. Jenkins,
U.S. , 109 S.Ct. 2463, 2469, 105 L.8d.2d 229, 239 (1989)."/
This Circuit has approved of using the "IRS adjusted prime rate"
as the proper adjustment factor for the delay in payment.
Lattimore, 868 F.2d at 438 n.2. For the calendar quarter beginning
April 1, 1990 the IRS adjusted Prime Rate charged to taxpayers who
underpay the Internal Revenue Service is Ili per annum. Rev. Rule.
90-19, 1990-0 I.R.B. 148 15. Utilizing the mid -point of the date
between when counsel started working and when the instant motion
was filed this Court arrives at a time period of one year and forty
five days or 1.125, resulting in a total delay in payment
adjustment of twenty one dollars and sixty five cents ($21.65) per
hour ($175.00 per hour x 110 x 1.125). Thus, the adjusted
lodestar, taking into account the factor of delay as to attorney
Joel Lumer equals fifty four thousand four hundred sixty five
Defeadantos Contention that Such anbaw msnt is reserved =IF for tboaa Instances Involving
autraordin"T Or unumnal delay is without merit. The purpose of tbis factor in to &sears that fee awards under
42 v.i.C. i lldd are based Cn msrkmt rates for services rendered to a traditioeal fee paying Cliest. As stated
by "a supremo Court in , •Callearl , Compensation received sweral Years after the services are rendered
In aft puivalen o e same dollar amount received reasonable promptly es tba legal Services are
preformed, an would notmall be the Case with private billings.• J�_� lot d.Ct. at 2469, 105 L.id.2d at
240. in es mach es nd private billings are not made two aoam•balf Years after a snits t ibis Court
finds application of this factor necessary to Vista the premest Came on the sage Compensation basis "as would
nornslly be tam Case with private billings.•
12
92-- 640
J
dollars and one cent ($S4,465.01)1I/ and as to attorney John J.
Speigel equals thirty six thousand eight hundred sixty eight
dollars and eighty cents ($36,868.80).
! = T;_ = '1
In the rare case, enhancement of the lodestar may be
appropriate if there is a risk on non -recovery. Delaware 11, 483
U.S. at 731 (O'Connor, J., concurring in part and concurring in
judgment); Ia., at 735 (Blackmun, J., dissenting with Brennan,
Marshall and Stevens, JJ.). Enhancement on the basis of
contingency is to be analyzed under the standards established by
Justice O'Connor's concurring decision in Delaware i1, 483 U.S. at
731. There, in a separate concurring opinion, Justice O'Connor
established a two-part test to determine whether contingent
enhancement is appropriate. This test, most recently summarized
by the lath Circuit requires the moving party adduce affirmative
evidence to show: (1) that in the absence of a contingency
multiplier plaintiff would have faced substantial difficulty in
locating counsel in the relevant market; and, ( 2 ) that the relevant
market adds a premium for "contingent fee cases as a class" as
compared to cases in which payment is certain. Martin v. University
of South Alabama, 911 F.2d 604, 610-611 (llth Cir. 1990) (citing,
19/ toe pafposes of cospnting delay damage• as w Lames this court Only wok into account two
handrsd sixty nine point forty bows (269.40) reflecting three hundred sixteen point ninety five hours (316.95)
minas 15f for work performed an the non -prevailing claim. The three handfed sixteen point ninety five hoar
(316.95) figure was need is plane of the three hundred twenty-six point ninety fiw hose (326.95) figure based
rs on Mr. Lameteprseentation that the first ten (10) hours of his work involved no time delay am contingency
fact•-. 1or these first ten (10) boars of his work Mr. Lumer requested a fee of one thousand seven hundred
fifty dollars ($1,750.00) representing one hundred seventy five dollars (:175.00) per hoar. This figure was
rsducsd to one thousand four hundred eighty seven dollars and fifty cents ($1, N7.50) in accordance with this
cCourts
laim. previous discussion regarding a disallowance of 150 for work performed incident to the am -prevailing
13
92- 640
Delaware it, 483 U.S. at 731-734)(0'Connor, J. concurring in part
and concurring in judgment). Analysis under the second prong may
not include consideration of the legal risks peculiar to the
particular case. SSA. The moving party bears the burden of
satisfying both parts of this two part test and whether the
evidence advanced by that party meets this burden is a question of
fact. IA.
In the instant case attorney Joel V. Lumer seeks a 3.0
lodestar enhancement on the basis of contingency.20/ Attorney John
J. Spiegel requests a total lodestar enhancement of 3.5-- 3.0 for
contingency and 0.5 for his relationship with his client.2i/
Defendant objects to any enhancement arguing that the factors
plaintiff relies on for enhancement are factors already adequately
reflected in the lodestar. Applying the two-part test of Delaware
n to the facts herein, this Court finds a lodestar enhancement of
1.33 applied to both attorneys appropriate and necessary to attract
competent counsel in the relevant community. fim Allen v. Freeman,
694 F.Supp. 1554, 1556 (S.D. Fla. 1988). In Allen, Honorable James
Lawrence King, Chief United States District Judge for the Southern
District of Florida found a 1.33 multiplier on the basis of
contingency appropriate in a civil rights case in which there was
a real risk of not prevailing.. at 1556. In addressing this
issue Chief Judge King adopted Justice Whites suggestion in
20/ 1or tbs tlrst tsa (10) boars Of Us work Mr. Lwws seeks as w asbaacad fee of omo tbausaad
ssrsa buadrsd fifty doiiara (i1,750.00) as aaitbar delay aos a aoatiagaooy faator was laroivad.
21/ Ms •pisW Is the brotbar of tbs blaiatiff.
14
92 - 640
D-elaware 1i,21/ that the amount of enhancement for the risk of non-
payment should be limited to one-third (1/3) of the lodestar
amount. Id. Accordingly, for the following reasons and reasons
previously not forth herein this Court finds an enhancement of 1.33
or one-third (1/3) of the lodestar amount warranted as to both
attorneys.
Before present counsel were retained employment in this case
was offered to three other South Florida attorneys, Messrs. Robert
Weisberg, Richard Druks and Ronald Cohen, all of whom specialize
in the area of employment law. All of these attorneys declined to
take the case because, as they viewed it, there was little or no
prospect of earning a fee.23/ These attorneys views are echoed by
other South Florida attorneys specializing in this area. Mark
Swanson states in his affidavit that "This case would not have
gotten past my office manager. Cases brought under 42 U.S.C. S
1983 are difficult to win, and even where relief is obtained it is
generally only after a long period of time..24/ He goes on to state
that a fair contingency enhancement factor is 3.0 based on how the
South Florida market compensates for the contingency of taking
employment discrimination cases such as this.25/ In conclusion he
states, "If a contingency enhancement of this kind is not provided
22/ 107 •.ct. at 3M.
27/ in Affidaviw attaabad to plaintift'a Notion for Award of AttorMy'a teen and Reasoaable
ntpmuses of Litigation.
24/ ¢n Affidavit of Nark Swanson, pga. 1-2 attaabad to plaiatitt'a Nation for Award of Attorasr'a
fan and taaaooabla aZpanaan of litigation.
28/ ,Ii. at 1.
15
92- 640
in the civil tights employment discrimination context then lawyers
will stop taking these cases and wrongfully discharged employees
will not be able to get competent counsel unless they are willing
to pay on a regular hourly basis."=s/
In a similar vein No. Kathleen M. Phillips, an attorney
specializing in civil rights and employment law, stated in her
affidavit that she was "familiar with the evolving state of civil
rights law which has become more complicated and has tended to
restrict plaintiffs causes of action. As such, civil rights cases
have become precarious propositions to accept from the outset
because of the very distinct possibility that by the time the case
is ripe for trial there may be no cause of action."='/ It is Ms.
Phillips' opinion that a contingency multiplier of 3.0 is
reasonable based upon the following facts: the case was taken on
a straight contingency basis; there was a strong likelihood of
losing; plaintiff's case had been turned down by other lawyers
experienced in the field; "and taking into account the local market
in the community as well as taking into account the public policy
in favor of enforcement of civil rights claims such as
(plaintiff's] . .. "10/
Based upon the foregoing and in accordance with Chief Judge
Ring's decision in tea, this Court concludes that a multiplier
as/ It.
17 / go Aftidavit of ltataiSM M. PUMPS, PQ. t attaabad to Plaiatifi'a Motiaa Los Aw"d Of
dttatna l0 PMa and PAWSOsabia RKPaeaM of Utioatioa.
"/ U. at 3-4.
16
92- 640
of 1.33 is appropriate and necessary to ensure the availability of
competent counsel in this community. The factors utilized to
arrive at this conclusion were not already reflected in the
lodestar. Further, an adjustment of the sort awarded here brings
counsels fees in line with similarly situated attorneys in the
South Florida community. without such an adjustment plaintiff's
such as Meynares would have little to no chance of securing
competent counsel on a contingency basis."/
Enhancement, however, is limited to those hours expended in
the case in
chief. Martin,
911
F.2d
at 612-613.
Ul also }ding v.-
palmier, 906
F.2d 762,
769 (D.C.
Cir.
1990). As
enhancement is not
necessary to attract competent counsel to conduct the post -judgment
phases of the litigation, enhancement of those hours expended
incident to plaintiff's Petition for Attorney's Fees is not
warranted and shall not be considered. Consequently, enhancement
as to attorney Speigel shall not include 1.50 hours and as to
attorney Lumer shall not include 9.83 hours for legal work incident
to post judgment relief .30/
=p/ lie Coast declines to accept plaintiff's isvitatiom to acaosd additional enhancement value
to attorney spiegel's fee OR the basis of hie relationship to the plaintiff. This Court recogaisee the
additional harden placed on ar charged with repreasn" a client wbo at tbo ear time is a sister, hat finds
no legal basis an wbich to justify a iss enhancement. As stated by the Mock pbiloeopher Montaigne, `Thaws
is little isms trouble in govenieg a psiveto family thas a whole kiagdon• Nontaigr, •Of Solitudes eeea�rs (1540-
1664). put another way, alonO vita the benefits of family come the concomitant burdens. 2t is not the oonrt's
plear�-•to attempt to .finalise teem.
30/ jM affidavits of attosnsy Jobh J. spsiod and Joel Lamar attacbed to plaistiffIs Motion for
Award of attarsey's yeas and seasonable ntpenw of Litigation.
17
92- 640 1
1
1
11.
wvuTS
Counsel for plaintiff request a reimbursement for reasonable
expenses of litigation in the amount of four thousand one hundred
twenty two dollars and seventy five cents ($4,122.75). As
defendant raises no objection and finding the requested costs
reasonable, with the exception of eighteen dollars ($18.00)
incident to obtaining service on Count iI defendant Carlos Garcia,
this Court hereby recommends that plaintiff be awarded the costs
requested in their entirety except as previously stated herein.
In accordance with the foregoing it is hereby
RBCODBD that plaintiff's Motion be Granted as more fully
set forth below:
1) Attorney Joel Lumer be awarded seventy one
thousand eight hundred dollars and fifty four
cents ($71,800.54) for reasonable attorney's
fees.
2) Attorney John J. Speigel be awarded forty eight
thousand nine hundred thirty eight dollars and
sixteen cents ($48,938.16) for reasonable
attorneys fees.
3) Attorney Joel Lumer and John J. Speigel be
awarded four thousand one hundred four dollars
and seventy five cents ($4,104.75) for
reasonable expenses of litigation.
is
w-
92— 640
The parties have ten (10) days from the date of this Report
and Recommendation within which to serve and file written
objections, if any, with the Honorable Thomas E. Scott, United
States District Judge. Failure to file objections timely shall bar
the parties from attacking on appeal the factual findings contained
herein. LoConte v. Duaaer, 847 F.2d 745 (filth Cir. 1969), ;-trt.
denied, U.S. , 109 S.Ct 397 (1998).
RNSPRCTFULLY SUBMITTED this 26 day of October, 1990 at Miami,
Florida.
-e-'Y?i ze
LXNNEA R.^JJ` H
UNITED STATES
cc: Honorable Eugene P. Spellman
all parties of record
19
92- 640