Webb v. City of Venice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KENITE WEBB,

Plaintiff,

v. Case No. 8:19-cv-3045-TPB-TGW

CITY OF VENICE,

Defendant.

/

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART

This matter is before the Court on consideration of the report and

recommendation of Thomas G. Wilson, United States Magistrate Judge, entered on

August 5, 2024 (Doc. 203), addressing “Plaintiff Kenite Webb’s Supplemental

Motion Determining Amount of Attorney’s Fees Including Related Nontaxable

Expenses” (Doc. 197). Judge Wilson recommends that Plaintiff’s motion be granted

in part and denied in part. Plaintiff filed objections to the report and

recommendation on August 16, 2024. (Doc. 208). Defendant did not file a response.

After conducting a careful and complete review of the findings and

recommendations, a district judge may accept, reject, or modify the magistrate

judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Camby v. Davis, 718

F.2d 198, 199 (4th Cir. 1983); Williams v. Wainwright, 681 F.2d 732 (11th Cir.

1982). A district court must “make a de novo determination of those portions of the

[report and recommendation] to which an objection is made.” 28 U.S.C. §

636(b)(1)(C). When no objection is filed, a court reviews the report and

recommendation for clear error. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th

Cir. 2006); Nettles v. Wainwright, 677 F.2d 404, 409 (5th Cir. 1982).

Judge Wilson recommends that Plaintiff be awarded attorneys’ fees in the

amount of $162,166.99, and that Plaintiff’s request for additional costs and legal

expenses be denied. Upon due consideration of the record, the Court adopts the

report and recommendation, except as to certain elements in the calculation of fees

and as to certain costs.

First, as to the amount of fees, the Court will add an additional 36.65 hours

(to which Defendant did not object) to the 58.5 hours Judge Wilson recommends be

allowed for work by attorney Kerry Mack. See (Docs. 197-1 at 5; 199-1 at 3; 203 at

16, 30 n.5). At the allowed rate of $300 per hour, this yields an additional $10,995

in fees attributable to Ms. Mack. As to work by attorney Jacqulyn Mack-Majka,

based on the recommend rates and hours, the fee award totals $68,904 (adding

$34,452 to the recommended amount). See (Doc. 203 at 30 n.5). These two

additions, which are due to a mathematical oversight made by the Magistrate

Judge, result in a total fee award of $207,613.99.

Second, Judge Wilson recommends that the requested costs be disallowed in

their entirety. While the Court agrees as to some of the costs, the Court concludes

that other requested costs should be allowed, but only in part. For purposes of this

review, the Court will divide the requested costs into three sets.

The first set consists of costs potentially recoverable under § 1920, i.e., fees

for service of process and for printing, witness fees, and copying costs. Plaintiff’s

motion requests costs in these categories totaling $11,170.05. See (Doc. 197-1 at 8).

As Judge Wilson notes, however, Plaintiff previously sought these same items in his

bill of costs, but the Court disallowed them because Plaintiff failed to meet his

burden of showing they were reasonable and necessary. See (Docs. 203 at 3-4; 187

at 11-17; 195). The Court therefore agrees with Judge Wilson’s recommendation

that these costs be disallowed. A motion under Local Rule 7.01 for fees and non-

taxable costs should not afford a second bite at the apple for taxable costs previously

submitted but rejected by the Court. Therefore, as to these costs, no further

amounts will be awarded.

The second set of costs consists of miscellaneous non-taxable costs or

expenses incurred in prosecuting Plaintiff’s claim for relief or his claim for

attorneys’ fees. These are described as: exhibits in a trial notebook, travel and

parking tolls, costs for a public records request apparently relating to Plaintiff’s

request for fees, costs for Plaintiff’s medical records, and a fee for an expert witness,

Dr. McAllister, who treated Plaintiff and was listed on Plaintiff’s witness list for

trial. See (Doc. 197-1 at 8). Under the broader scope allowed for recoverable costs

in Title VII cases under 42 U.S.C. § 2000e-5(k), the Court will allow these additional

costs, totaling $1,676.52.1

1 42 U.S.C. § 2000e-5(k) provides for an award of a “reasonable attorney’s fee (including

expert fees)” in Title VII cases. Fees recoverable include both those incurred in obtaining a

judgment on the merits and those incurred the preparation of a motion for fees. See, e.g.,

Sheet Metal Workers Int’l Ass’n Local 15, AFL-CIO v. Law Fabrication, LLC, 237 F. App’x

543, 550 (11th Cir. 2007) (noting that “federal statutory fee-shifting provisions ordinarily

authorize fees on fees”); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996)

(reversing district court’s denial of award of fees incurred in litigating fee claim). Moreover,

the “reasonable attorney’s fee” awarded under this statute has been held to include

reasonable out of pocket expenses or costs of the type which would normally be charged to a

fee-paying client, such as travel costs and expert fees, even though these expenses would

The third set of costs sought in the motion is a total of $19,725 in charges for

Westlaw research conducted in March 2022, primarily in connection with Plaintiff’s

pursuit of attorneys’ fees. See (Docs. 197-1 at 9; 158 at 20-21, 25-26). While not

recoverable as a cost under § 1920, Westlaw charges have been held recoverable as

part of attorneys’ fees under § 2000e-5(k). See, e.g., Wen Liu v. Univ. of Miami, Sch.

of Med., No. 13-22187-CIV-ZLOCH, 2018 WL 4613326, at *4 (S.D. Fla. Sept. 26,

2018) (awarding Westlaw research charges); see also Am. Charities for Reasonable

Fundraising Regulation, Inc. v. Pinellas Cty., 278 F. Supp. 2d 1301, 1328 (M.D. Fla.

2003) (holding computer legal research recoverable as part of an attorneys’ fee

award under 42 U.S.C. § 1988). However, such charges must be reasonable. E.g.,

Wen Liu, 2018 WL 4613326, at *3-4; Hurley v. Atl. City Police Dept., No. CIV. A. 93-

260 (JEI), 1996 WL 549298, at *4 (D.N.J. Sept. 17, 1996).

Plaintiff requests $7,693 in Westlaw charges incurred by attorney Jacqulyn

Mack-Majka. From the Westlaw invoices submitted by Plaintiff, it appears these

charges were incurred on March 8, 9, 10, 11, and 14, 2022. (Doc. 158 at 25-26). The

only time entry submitted for Ms. Mack-Majka during this time period that

conceivably might involve Westlaw research is a single reference, contained in a

block entry of 2.5 hours on March 9, 2022, to “research multiplier availability.”

Jacksonville, No. 3:00-cv-469-32TEM, 2006 WL 4794173, at *11 (M.D. Fla. Sept. 11, 2006),

aff'd, 237 F. App’x 508 (11th Cir. 2007). Defendant in opposing Plaintiff’s motion cites Krop

v. Nicholson, No. 8:06-cv-157-MSS, 2008 WL 11439394 (M.D. Fla. Mar. 13, 2008), for the

proposition that Plaintiff may not recover any costs or expenses beyond those allowed under

§ 1920, but that case held that “the traditional limits of recovery under § 1920 do not limit

the Court’s authority to award costs” in proceedings on a motion under § 2000e-5(k). Id. at

*2.

(Doc. 197-1 at 27). In the absence of further explanation or support for the specific

amount requested, rather than deny recovery altogether, the Court believes that a

reduction of the requested amount by 40% would be appropriate, consistent with

Judge Wilson’s recommended reduction in the hours allowed for Ms. Mack-Majka.

Accordingly, the Court will allow $4,615.80.

Plaintiff also seeks $12,032 in Westlaw charges incurred by attorney Kerry

Mack on March 21, 2022, and by paralegal Jacqueline Skubik on March 14, 21, 23,

28, and 30, 2022. (Doc. 158 at 20-21). Ms. Mack’s submitted time records have no

entry for March 21, 2022. Ms. Skubik’s time records reflect substantial time spent

in legal research on the indicated days, but the entries do not specifically refer to

Westlaw research. See (Doc. 197-1 at 53-55). Numerous entries appear to reflect

research on issues necessitated by Plaintiff’s own failure to follow the appropriate

procedures in moving for fees, a failure noted by Judge Wilson in both his reports

relating to costs and fees. See (Docs. 187 at 2-3, 5-9; 203 at 21). For example, on

March 14, 2022, the same day that Plaintiff filed his initial motion for fees – which

was six days after Plaintiff should have filed a motion on entitlement to fees and

non-taxable costs under Local Rule 7.1 – Skubik recorded time as follows: “review

Local Rule 7.01 and 1.01 allowing local rules to be disregarded if inconsistent with

[other] enabling statutes . . ..” (Doc. 197-1 at 54) (emphasis added). Other time

entries reflect research on similar topics. In other words, it appears that Plaintiff’s

legal team spent time researching ways to avoid any adverse consequences from

their own failure to follow the Local Rules in the first instance. While they

ultimately succeeded in these efforts, the Court does not believe Defendant should

pay for them.

Ms. Skubik’s block billing of her time and the absence of any reference to

Westlaw make it impossible to determine with any degree of certainty how much of

the $12,032 in requested Westlaw charges was incurred in researching one topic

versus another. Accordingly, the Court determines that an across-the-board

reduction of 50% is appropriate, once again consistent with the reduction

recommended by Judge Wilson for Ms. Skubik’s time. The Court will therefore

allow $6,016 for Westlaw charges incurred by Ms. Mack and Ms. Skubik, bringing

the total Westlaw charges allowed to $10,631.80, and the total costs allowed to

$12,308.32. When combined with the allowable amount for fees set forth above, the

total award of fees and non-taxable costs is $219,922.31.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Judge Wilson’s report and recommendation (Doc. 203) is AFFIRMED and

ADOPTED IN PART and INCORPORATED BY REFERENCE into this

Order for all purposes, including appellate review.

(2) “Plaintiff Kenite Webb’s Supplemental Motion Determining Amount of

Attorney’s Fees Including Related Nontaxable Expenses” (Doc. 197) is

GRANTED IN PART and DENIED IN PART as set forth herein.

(3) Plaintiff is AWARDED a total of $ $207,613.99 in attorneys’ fees.

(4) Plaintiff is AWARDED a total of $12,308.32 in related non-taxable costs and

expenses in addition to the attorneys’ fees set forth above.

(5) The Clerk is directed to enter judgment for fees and non-taxable costs in

favor of Plaintiff Kenite Webb and against Defendant City of Venice in the

total amount of $219,922.31.

DONE and ORDERED in Chambers, in Tampa, Florida, this 10th day of

September, 2024.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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