# Fuller v. The City of Miami

> District Court, S.D. Florida · July 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11092819

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 23-24251-CIV-MORENO
WILLIAM O. FULLER, et al.,
Plaintiffs, .
vs.

THE CITY OF MIAMI etal.,
Defendants.
/
ORDER DENYING DEFENDANT ASAEL MARRERO’S VERIFIED MOTION FOR
ATTORNEY’S FEES
THIS CAUSE came before the Court upon Defendant Asael Marrero’s Verified Motion
for Attorney’s Fees (D.E. 219).
THE COURT has considered the motion, the opposition, the reply, all other pertinent
portions of the record, and is otherwise fully advised in the premises.
Congress has provided district courts with discretion to award attorney’s fees and costs to
prevailing parties in § 1983 actions. See 42 U.S.C. § 1988(b). Plaintiffs sued Defendant Asael
Marrero, the former Building Director for the City of Miami, under § 1983 for First Amendment
retaliation. Specifically, Plaintiffs alleged that Marrero unlawfully participated in Defendant Joe
Carollo’s retaliation scheme aimed at punishing Plaintiffs for supporting Carollo’s political
opponent. After the Court entered its order dismissing all claims against Marrero on September
12, 2024 (see D.E. 199), Marrero filed the instant motion on November 6, 2024. Marrero claims
that, as the prevailing -party, he is entitled to reimbursement of attorney’s fees that he incurred □

defending this action. Plaintiffs disagree, and as an initial matter they argue that Marrero’s
motion is premature and should be denied (or deferred) on that basis.
The Court deems Marrero’s motion timely filed but declines to exercise its discretion to
award him the attorney’s fees he seeks.
I. Marrero’s Motion for Attorney’s Fees Is Timely .
Plaintiffs argue that Marrero’s motion should be denied or, at the very least, deferred
until the case is entirely concluded because (1) the Court did not enter partial final judgment in
Marrero’s favor: and (2) claims against other Defendants remain pending. Plaintiffs cite two
cases from this District to support this argument—both are distinguishable. Brooklands, Inc. v.
Sweeney deferred ruling on the defendants’ entitlement to attorney’s fees until final judgment
was entered on all claims. See No. 14-81298-CIV, 2015 WL 4983680, at *4 (S.D. Fla. Aug. 21, □
2015). However, Brooklands did not concern a motion for attorney’s fees. Instead, the
defendants counterclaimed for attorney’s fees and pled a set-off for attorney’s fees as an
affirmative defense. See id. at *1. Moreover, the Brooklands defendants had not then obtained
dismissal of all claims against them like Marrero has here. See id at *4. In Vignoli v. Clifton

_ Apartments, Inc., the court entered an order dismissing claims against one defendant after the □
plaintiffs moved to withdraw them. See 2014 WL 12498216, at *1 (S.D. Fla. May 16, 2014).
More claims remained against the other two defendants, but all three joined in the motion for
attorney’s fees. See id. at *1-*2, The Court deferred ruling on the motion because “[r]esolution _
of these remaining claims may result in an additional award of attorney’s fees and costs (to any
party).” Jd. at #9, That is nothing like the case here. Adjudication of the remaining claims
against Defendants Joe Carollo, Victoria Mendez, Arthur Noriega, and the City of Miami will
‘ not impact Marrero’s entitlement to fees. .

The Local Rules of this Court require that motions for attorney’s fees and costs “be filed
and served within sixty (60) days of the entry of the final judgment or order giving rise to the
claim.” L.R. 7.3(a)(1). The Rule means what it says—either a final judgment or an “order
giving rise to a claim” will start the 60-day clock. See Lira v. Essentia Ins. Co., 861 F. App’x
374, 377 (11th Cit. 2021) (“The use of the disjunctive ‘or’ indicates that the terms ‘final
judgment’ and ‘order giving rise to the claim’ have separate meanings and that either is sufficient
to trigger the Local Rule’s 60-day deadline.”). Therefore, to the extent Plaintiffs suggest that a
judgment is required, they are incorrect. Whether the order dismissing all claims against
Marrero is an “order giving rise to the claim” for attorney’s fees turns on whether that order
renders Marrero the “prevailing party” in this case. See 42 U.S.C. § 1988(b); see also Beach
Blitz Co. v. City of Miami Beach, Fla., 13 F.4th 1289, 1298-99 (11th Cir. 2021) (a defendant is
the prevailing party if the court’s order “rebuffed [the plaintiff? s| efforts to effect a material
alteration in the legal relationship between the parties[,] .. . [or,] [pJut another way, . . . the case
‘was resolved in the defendant’s favor.” (citations omitted; citation modified)). It is beyond any
reasonable dispute that Marrero is the “prevailing party” here. And because Marrero filed and

. served his motion for attorney’s fees within sixty days of the Court’s order, his motion is timely.
Ul. Plaintiffs’ Claims Against Marrero Were Not Frivolous
A court may award attorney’s fees to.a defendant in a § 1983 civil rights action only if
the court “finds that the plaintiffs action was frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per
curiam) (citation modified) (quoting Christiansburg Garment Co. v. Equal Emp. Opportunity
Comm'n, 434 U.S. 412, 421 (1978)). This inquiry does not rest on “whether the claim was
ultimately successful.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir.

3 .

1985) (quoting Jones v. Texas Tech University, 656 F.2d 1137, 1145 (5th Cir. 1981)). Rather,
“(tlhe plaintiffs action must be meritless in the sense that it is groundless or without
foundation.” Hughes, 449 U.S. at 14.
To determine frivolity, the Eleventh Circuit has identified four “important” factors!: “(1)
whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle;
(3) whether the trial court dismissed the case prior to trial; and (4) whether there was enough
support for the claim to warrant close attention by the court.” McDonough v. City of Homestead,
Fla., No. 23-13578, 2024 WL 4579663, at *2 (llth Cir. Oct. 25, 2024) (citation modified)

(quoting Sullivan, 773 F.2d at 1189 and Beach Blitz, 13 F 4th at 1302). While these factors serve
as “general guidelines,” they are “not hard and fast rules.” Sullivan, 773 F.2d at 1 189.
The Court begins with the first factor. Whether a plaintiff has established a prima facie

_ case usually reduces to whether he has produced “enough evidence to raise an issue for the trier
of fact.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 527 (1993) (Souter, J., dissenting).
Marrero argues that because the Court dismissed the Plaintiffs’ claims against him on qualified
immunity grounds, Plaintiffs failed to establish a prima facie case of First Amendment
retaliation. However, the latter does not follow from the former. See. aylor-Williams □□
Rembert, No. 8:16-CV-00087, 2017 WL 637690, at *5 (M.D. Fla, Feb. 16, 2017). After all, □
qualified immunity will still bar a plaintiffs suit even where he establishes a prima facie case.
See 2.8, Rioux v.: City of Atlanta Ga., 520 F.3d 1269, 1271 (11th Cir. 2008). This point,
though, is purely academic because at the motion-to-dismiss stage, Plaintiffs were never required
to produce any evidence. Marrero’s dismissal ended his involvement in the case before it ever
-yeached discovery. As such, the first factor is neutral.

| As Marrero points out, Plaintiffs do not address any of these factors in their opposition.
4 □

As to the second factor, Marrero maintains that he did not offer to settle. Plaintiffs do not
dispute this. As such, this factor weighs in favor of a frivolity finding.
The third factor also weighs in favor of finding frivolity. Plaintifts’ claims did not
survive Marrero’s motion to dismiss.
The fourth factor, which the Eleventh Circuit has identified as “particularly important,”
weighs against a frivolity finding. See Beach Blitz, 13 F.4th at 1302. Marrero argues that

Plaintiffs’ failure to overcome qualified immunity necessarily means that the Court’s close
attention to Plaintiffs’ claims-was not required. Specifically, Marrero avers that there is “nothing
novel about having to overcome qualified immunity in a § 1983 action, and the allegations
necessary to do so are clearly set forth in established binding precedent.”
While it is true that the Court held that Plaintiffs did not establish that Marrero violated a
clearly established constitutional right, it first held that Plaintiffs plausibly alleged a claim of □

First Amendment retaliation. The Court thoughtfully analyzed the parties’ arguments and the

_ key Eleventh Circuit cases they presented, alongside Plaintiffs’ allegations of Marrero’s conduct.
Though the Court ultimately disagreed with Plaintiffs’ interpretation of the cases, the Court
cannot conclude that Plaintiffs’ claims against Marrero were frivolous, unreasonable, or without
foundation. The United States Supreme Court expressly forbids this kind of “hindsight logic.”
See Christiansburg, 434 U.S. at 422 (“[I]t is important that-a district court 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.”).

III. Conclusion
In sum, Marrero has not met the standard required for an award of attornéy’s fees in this

case. The Court does not conclude that Plaintiffs’ case against Marrero was so lacking in merit
at the outset that even filing the lawsuit entitles Marrero to attorney’s fees.
Accordingly, it is
ADJUDGED that Defendant Asael Marrero’s Verified Motion for Attorney’s Fees (D.E.
219) is DENIED. | | 9 fu
DONE AND ORDERED in Chambers at Miami, Florida, this of July 2025.

ile gE
FEDERICO A. MORENO .
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11092819. Public record. Not legal advice.