ELVER
v.
WHIDDEN
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The court denied the defendant's motion for attorneys' fees, finding that the plaintiff's suit was not vexatious, frivolous, or brought to harass.
Plaintiff sued the Sheriff for whistleblower retaliation and First Amendment retaliation. The court granted summary judgment for the defendant. Defend…
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This matter comes before the Court on defendant’s1 Renewed Motion for Attorneys' Fees (Doc. #78) filed on December 6, 2019. Plaintiff filed a Memorandum in Opposition (Doc. #82) on December 30, 2019. Plaintiff initiated the case on September 29, 2017, in the Tampa Division of the Middle District of Florida. An Amended Complaint (Doc. #4) was filed alleging whistleblower retaliation by a public employee against the Sheriff in his official capacity in violation of Fla. Stat. § 112.3187 (Count I) and First Amendment Retaliation against the Sheriff in his individual capacity (Count
Where jurisdiction is based on the presence of a federal question, as in this case, and the Court maintains supplemental jurisdiction over a state claim, Fla. Stat. § 768.79 only applies to the state law claim. Design Pallets, Inc. v. Gray Robinson, P.A., 583 F. Supp. 2d 1282, 1287 (M.D. Fla. 2008).
Only Count I was brought under state law. Even though only Count I is a state law-based claim, all three claims were premised on the same set of facts and Count I was analyzed under the same standard used in Title VII retaliation claims. (Doc. #59, p. 16 n.9.) Counts II and III were both brought under § 1983, under which “[a] prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (citations omitted).
Florida courts have determined that “because section 1988 allows the award of attorney's fees to prevailing defendants in a much more limited context than does section 768.79(1), section
1988 preempts section 768.79(1).” Moran v. City of Lakeland, 694 So. 2d 886, 887 (Fla. 2d DCA 1997). “Thus, [ ] Florida law prevents awards of attorneys' fees, even after an offer of judgment, in state and federal civil rights cases absent a showing of frivolity.” Alansari v. Tropic Star Seafood Inc., 395 F. App'x 629, 632 (11th Cir. 2010).
The Court found that plaintiff offered sufficient evidence to create a genuine issue of material fact as to the causation element but that defendant had articulated a legitimate, non-retaliatory reason for plaintiff's dismissal and plaintiff had failed to show that the reason was pretextual. (Doc. #59, pop. 17, 22, 26.) There was nothing to indicate that the allegations in the Amended Complaint were vexatious, frivolous, or brought to harass or embarrass defendant. The motion for attorney’s fees will be denied. As a result, the Court need not address plaintiff's argument that the inclusion of a prayer for equitable relief forecloses application of the offer of judgment statute.
Accordingly, it is hereby ORDERED: Defendants' Renewed Motion for Attorneys' Fees (Doc. #78) is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this 8th day of January, 2020.
ON E
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies: Counsel of Record
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- Design Pallets, Inc. v. Gray Robinson, P.A., 583 F. Supp. 2d 1282 (M.D. Fla. 2008)