WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Plaintiffs' Motion for Attorneys' Fees and Expenses [474] and Plaintiffs' Motion for Sanctions [451].
This case was filed on August 24, 2004. The case, after a long and acrimonious history, finally was tried before a jury, which announced its verdict on April 1, 2010. The delay of the processing of the case in this Court was substantially attributable to the Defendants' "circle the wagon" approach to the claims asserted by the Plaintiffs. Employing a formidable arsenal of litigating tactics, these public-sector Defendants calculatingly and unnecessarily complicated the litigation of these claims, the very nature of which were hard to prove because the claims alleged involved discrimination policies conceived and designed behind closed doors. Ultimately, the prosecution of the claims asserted in this action disclosed that DeKalb County and its most senior officials engaged in an intentional and successful scheme to enact a policy of purposeful discrimination in the county, as manifested in the county's Parks and Recreation department. That a purposeful policy of discrimination was put into place was disclosed by the evidence introduced at trial and was supported by the verdict of the jury, which held unequivocally that DeKalb County, its Chief Executive Officer, Vernon Jones, his Chief of Staff, Richard Stogner, and the head of the Parks and Recreation Department, Marilyn Boyd Drew, engaged in discrimination and did so intentionally. The verdict was punctuated by the jury's award of punitive damages—an award uncommon in this district—against Defendants Jones, Stogner and Drew. The award of punitive damages made it clear that the denial of Mr. Bryant's and Mr. Drake's rights was enacted by the county's most senior executive and implemented by his right-hand administrators. They were responsible for
This case was litigated over a prolonged period. The litigation has been difficult to manage and has been delayed by the litigation strategy implemented by the Defendants. When the case commenced, each Defendant was separately represented by litigation counsel. None of the Defendants was represented by the county attorney, who routinely appears in cases in this court to represent the county and its employees in discrimination cases. Four law firms appeared on behalf of Mr. Jones and DeKalb County. Individual Defendants Drew and Morris were represented by three law firms. The remaining two individual Defendants were represented by two law firms.
The number of lawyers involved in the case enabled the Defendants to engage in aggressive discovery and motion practice. The written discovery filed by Defendants exceeded fifty (50) pleadings.
That the Defendants' litigation activity was unusually inefficient and delay-causing was evidenced by the Defendants' summary judgment strategy. The Defendants chose to file fourteen (14) separate motions for summary judgment. Defendants claimed they each were entitled to file a separate summary judgment motion with respect to the claims asserted by each of the Plaintiffs. The Court, once these motions were filed and recognizing the overlapping arguments that were made and the delay and burden this pleading approach would have on a case based on a core set of facts and an alleged county-wide policy of discrimination, directed the parties to file consolidated summary judgment motions, expanding the page limit on the pleadings allowed by the Court's local rules. This produced a manageable set of submissions. While the pleadings, which ultimately were filed, were manageable, this does not diminish the complexity of the summary judgment motions and the enormous work and effort required to litigate them.
Finally, at the trial itself, the Defendants' litigation decisions made the trial more complicated and inefficient.
The verdict in this case was returned on April 1, 2010. While there was an actual damage award to only two of the four Plaintiffs, and that award was in the modest amount of $74,000, what is significant and noteworthy is that DeKalb County, Defendant Jones, Defendant Richard Stogner and Defendant Drew, who headed the department in which Plaintiffs Drake and Bryant worked, all were found to have discriminated against Plaintiffs Drake and Bryant. More significant is that an award of punitive damages was awarded against Defendants Jones, Stogner, and Drew for their willful and intentional discrimination against the county employee Plaintiffs who suffered from the Defendants' discrimination. This case was tried on a theory, which the evidence supported, that Defendants Jones, Stogner, and Drew had participated in a covert effort to enact a county-wide policy of discrimination. The policy was employed in the Parks and Recreation Department and Plaintiffs Drake and Bryant were victims of it. The evidence clearly supported that this policy of discrimination had been enacted in DeKalb County by Defendants
Defendants open their opposition to Plaintiffs' Motion for Attorneys' fees and Expenses with the following characterization:
(Def. Initial Brief in Opp. to Pls.' Mot. for Att'y Fees and Exp. 1.) This opening, characteristic of Defendants' practiced misdirection in this case,
Finally, Defendants contend that the Court should not and cannot consider Defendants' litigation conduct and award attorneys' fees to sanction them for abusive litigation practices. Plaintiffs Drake and Bryant claim they are entitled to attorneys' fees as prevailing parties in the litigation and that the legal services and expenses they incurred were necessary to prove their case which was based on a central, unified theory focused on a common core of facts showing that a policy of discrimination was designed and enacted by DeKalb County and its senior leadership.
A party who prevails in an action for wrongful discrimination brought under 42 U.S.C. §§ 1981 or 1983 is entitled to an award of attorneys' fees and expenses. Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir.1996). A prevailing party is entitled to an award of attorneys' fees even where the prevailing litigant did not prevail on all of the contentions asserted. Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
The award of attorneys' fees in this action is governed by the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, as amended, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(k). Section 1988 provides as follows:
42 U.S.C. § 1988(b). Section 2000e-5(k) similarly provides,
42 U.S.C. § 2000e-5(k). These statutes are interpreted broadly since they are remedial in nature and facilitate private enforcement of civil rights. Williams v. City of Fairburn, 702 F.2d 973, 976 (11th Cir. 1983). Although awarding attorneys' fees is within the discretion of the trial court, such discretion is a narrow one in that attorneys' fees should be denied only when special circumstances would render an award unjust, Solomon v. City of Gainesville, 796 F.2d 1464, 1466 (11th Cir.1986), or the statute is being subverted into a ruse for providing "windfalls" to attorneys. Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983). Importantly, a plaintiff is not required to succeed on all claims in order to be awarded attorneys' fees. Id.
In Hensley v. Eckerhart, 461 U.S. 424, 433-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and Blum v. Stenson, 465 U.S. 886, 896-97, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the United States Supreme Court established the framework and methodology for calculating the amount of a reasonable attorneys' fee award to a prevailing party pursuant to 42 U.S.C. § 1988. The starting point for calculating reasonable attorneys' fees is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate" for the attorneys' services. Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Blum, 465 U.S. at 897, 104 S.Ct. 1541; accord ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). The product of these two numbers is commonly termed the base figure, or "lodestar." Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 563, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). After calculating the lodestar, the court may, within its discretion, adjust the amount upwards or downwards based on a number
The fee applicant is the party that "bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Barnes, 168 F.3d at 427 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988)); accord Coastal Fuels Mktg., Inc. v. Florida Express Shipping Co., 207 F.3d 1247, 1252 (11th Cir.2000). That burden includes
Barnes, 168 F.3d at 427 (citations omitted). These obligations of the fee applicant are especially important in cases where the applicant has only partially succeeded in the suit. Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
Similarly, those parties opposing fee applications have obligations. Their objections and proof concerning hours they want excluded must be specific and "reasonably precise." Id. at 428, 103 S.Ct. 1933. The parties' fulfillment of their respective obligations assists the court in fulfilling its duty to render an order that articulates both its decisions and reasons for the decisions, thus allowing for meaningful appellate review. Id. at 428-29, 103 S.Ct. 1933; see also Coastal Fuels Mktg., Inc. v. Florida Express Shipping Co., 207 F.3d 1247, 1252 (11th Cir.2000) ("[W]e have said that a court's order on attorneys' fees must allow meaningful appellate review."); NAACP v. City of Evergreen, 812 F.2d 1332, 1335 (11th Cir.1987) ("A prerequisite for our review of an attorneys' fee award is that the district court's opinion must have explained the reasons for the award with `sufficient clarity to enable an appellate court to intelligently review the award.'").
"[A]ll reasonable expenses and hours incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under § 1988," Barnes, 168 F.3d at 427 (11th Cir.1999) (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983)), but "[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary" because, for example, the case is overstaffed. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Work performed by multiple attorneys, however, is not subject to reduction where the attorneys were not unreasonably doing the same work. Jones v. Central Soya Co., 748 F.2d 586, 594 (11th Cir.1984); Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir.1983).
As to the work performed, compensable activities include pre-litigation services in preparation of filing the lawsuit, background research and reading in complex cases, productive attorney discussions and strategy sessions, negotiations, routine activities such as making telephone calls and reading mail related to the case, monitoring and enforcing the favorable
Reasonable travel time of the prevailing party's attorneys ordinarily is compensated on an hourly basis, although the rate may be reduced if no legal work was performed during travel. University College, 706 F.2d at 1208. As with attorneys' work, the hours expended by paralegals, law clerks, and other paraprofessionals are also compensable to the extent these individuals are engaged in work traditionally performed by an attorney. Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989); Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988). In short, "with the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988," and "the standard of reasonableness is to be given a liberal interpretation." NAACP v. City of Evergreen, 812 F.2d 1332, 1337 (11th Cir.1987) (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983)).
A computation of the hours reasonably expended should not include time spent on "discrete and unsuccessful" claims, Duckworth v. Whisenant, 97 F.3d 1393, 1397 (11th Cir.1996), but should include time spent on all claims that arise out of the same course of conduct and share a "common core of fact," even if a specific individual claim did not succeed. Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Davis v. Locke, 936 F.2d 1208, 1214 (11th Cir.1991); Jean v. Nelson, 863 F.2d 759, 771 (11th Cir.1988); Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987); Military Circle Pet Ctr. No. 94 v. Cobb County, 734 F.Supp. 502, 504 (N.D.Ga.1990). In determining whether claims are related by a common core of fact, the Eleventh Circuit has taken an expansive view. See Popham, 820 F.2d at 1579 ("Because plaintiffs counsel is required to `explore every aspect of the case, develop all the evidence and present it to the court,' courts have expansively treated claims as being related.") (citations omitted). A court also should not discount an attorneys' fee award based on the court's rejection of an alternative legal ground, when one of the grounds is accepted. As the Supreme Court has stated:
Hensley, 461 U.S. at 441, 103 S.Ct. 1933.
The second half of the lodestar calculation is the determination of a "reasonable hourly rate" for the attorney's services. Reasonable hourly rates for the purposes of Section 1988 are to be measured by the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Prevailing market rates are those rates that are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Id. at 895 & n. 11, 104 S.Ct. 1541; ACLU of Ga. v. Barnes, 168 F.3d 423, 436 (11th Cir.1999). The applicant attorney's customary billing rate for fee-paying clients ordinarily is the best evidence of his market rate, although that information is not necessarily conclusive. Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir.2000) ("What [the attorney] charges clients is powerful, and perhaps the best evidence of his market rate; that is most likely to be what he is paid `as determined by supply and demand.'"); see also National Assoc. of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325 (D.C.Cir.1982) ("The best evidence would be the hourly rate customarily charged by the affiant himself or by his law firm.").
A fee applicant also may provide opinion evidence of reasonable rates, which is commonly done by submitting affidavits of other attorneys in the relevant legal community. Duckworth v. Whisenant, 97 F.3d 1393, 1396-97 (11th Cir.1996). Finally, the Court may utilize its own personal experiences and expertise to assess the lawyering skills exhibited during the pendency of the case, see id. ("This Court has also been given ample opportunity to assess the lawyering of this case for the Plaintiff."), but the Court cannot simply substitute its own judgment for uncontradicted evidence without an explanation and support in the record. NAACP v. City of Evergreen, 812 F.2d 1332, 1334, 1336 (11th Cir.1987).
In determining a reasonable hourly rate, the Eleventh Circuit Court of Appeals has provided a list of factors for its district courts to consider. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).
"With the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under § 1988." ACLU of Ga. v. Barnes, 168 F.3d 423, 438 (11th Cir.1999) (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983)); see Mallory v. Harkness, 923 F.Supp. 1546, 1557 (S.D.Fla.1996) ("[B]ecause the Plaintiff has sought attorneys' fees under 42 U.S.C. § 1988, the traditional limits of 28 U.S.C. § 1920 do not restrict the recovery of costs."). Pursuant to § 1988, a plaintiff may recover all out-of-pocket expenses that "would normally be charged to a fee paying client" and are not "routinely absorbed in office overhead." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994); Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017, 1023 (N.D.Ohio 1997); Jane L. v. Bangerter, 828 F.Supp. 1544, 1558 (D.Utah 1993); Cherry v. Rockdale County, 601 F.Supp. 78, 81 (N.D.Ga. 1984). Importantly, the Eleventh Circuit has directed that "the standard of reasonableness is to be given a liberal interpretation." Dowdell, 698 F.2d at 1192; accord NAACP v. City of Evergreen, 812 F.2d 1332, 1337 (11th Cir.1987). The Eleventh Circuit and district courts in this Circuit uniformly have allowed recovery of such expenses as photocopying, postage, long distance phone calls, necessary travel, and on-line research. Cullens v. Georgia Dept. of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994) ("The [district] court denied telephone and travel expenses on the ground that 28 U.S.C. § 1920 does not provide for their recovery. The government acknowledges that this was error ..."); Dowdell, 698 F.2d at 1192; Mallory v. Harkness, 923 F.Supp. 1546, 1557 (S.D.Fla.1996); Cherry, 601 F.Supp. at 81. The policy underlying this broad recovery of expenses has been stated by the Eleventh Circuit as follows:
Dowdell, 698 F.2d at 1190.
Defendants contend that Plaintiffs are not entitled to the full amount of attorneys' fees and expenses, totaling about $2.02 million, on the grounds that Plaintiffs Kelley and Lowe did not prevail on the claims they asserted and that Bryant and Drake did not prevail against Defendant Williams or Defendant Stone. Defendants claim, generally, that Plaintiffs Bryant and Drake were only partially successful in the litigation and thus the attorneys' fees and expenses claims should be reduced to account for "unsuccessful claims and for limited success" in the litigation.
A civil rights plaintiff qualifies as a prevailing party when the plaintiff obtains an enforceable judgment against the party from whom fees are sought. Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). That is, a plaintiff prevails for the purposes of § 1988 when "actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). "Once civil rights litigation materially alters the legal relationship between the parties, `the degree of the plaintiff's overall success goes to the reasonableness' of a fee award." Farrar, 506 U.S. at 114, 113 S.Ct. 566 (citing Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). In some cases an award of attorneys' fees may not be reasonable where a plaintiff has achieved only partial or limited success. Id. However, where Plaintiffs' "claims for relief will involve a common core of facts or will be based on related legal theories... [m]uch of counsel's time will be devoted generally to the litigation as a whole making it difficult to divide the hours expended on a claim-by-claim basis." Hensley, 461 U.S. at 435, 103 S.Ct. 1933. "Such a lawsuit cannot be viewed as a series of discrete claims." "The district court should focus on the significance of the overall relief obtained by the Plaintiff in relation to the hours reasonably expended on the litigation." Id.
Defendants rely on Farrar to support their argument that the Court should count up the number of claims on which
Success is not determined based on the formulaic approach advocated by the Defendants. Where a plaintiff has prevailed on less then all of the claims asserted, the Court should address two questions. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for a fee award? Hensley, 461 U.S. at 435, 103 S.Ct. 1933. In some cases "plaintiff's claims for relief will be based on related legal theories [and] ... much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis." Id. In cases where the claims are related, "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. Where the results are excellent, plaintiff's attorney "should recover a fully compensatory fee." Id.
The Court has presided over this matter for almost six years. During the meetings, conferences, hearings and trial, the Court and the Defendants have understood that Plaintiffs' theory in this case— one unique to this litigation and unique to these Defendants—was that DeKalb County, Defendant Jones, and Defendants Stogner and Drew devised, designed, and implemented a county-wide policy of discrimination to increase African-American supervisors in the county and in so doing caused county managers to suffer discrimination. It was the implementation and prosecution of this discriminatory policy and its impact upon Plaintiffs Drake and Bryant that lead to the jury's finding of discrimination and that the discrimination was willful and purposeful, warranting the award of punitive damages. All of the claims here, those on which Plaintiffs prevailed and those on which they did not, were related, were based on this central, unifying theory of liability, and concerned the same core set of facts and the same course of discriminatory conduct. The central unified theory upon which all of the claims were based was aggressively and vigorously litigated by Defendants.
The Court resists, indeed rejects, Defendants' mechanical approach to the determination of attorneys' fees and costs. To accept it would deny Plaintiffs adequate compensation for their time and their effect. Indeed, the effort to prosecute and the evidence offered on these claims was necessary and valuable to the prosecution
The Court turns to its review of the attorney and expense statements submitted by Plaintiffs Bryant and Drake in support of their Motion for Award of Attorneys' Fees and Expenses Pursuant to 42 U.S.C. § 1988(b). The Court notes that Defendants' "Objections to Plaintiffs' Motion for Attorneys' Fees and Expenses" largely rehash arguments they made in their Initial Opposition to Motion for Attorneys' Fees and Expenses. The Objections are often overreaching and bombastic. The submission is emblematic of the manner in which Defendants have elected to litigate this case, a litigating strategy uncharacteristic of Defendants who are public entities and officials who are provided legal defense services paid for by taxpayers. Defendants' statement that Plaintiffs' submission in support of their attorneys' fees and expenses is a "complete failure to meet their burden of maintain proper records and a wholesale failure to exercise even minimal billing judgment," Obj. at 19, is disingenuous considering that the cost of Defendants' legal services appear by press accounts and public information to exceed what Plaintiffs have requested.
Defendants do not challenge the hourly rates used to bill the services rendered. The Court, considering the opinion expressed by Frank B. Strickland and the Court's long experience practicing law in this market and its review of fee applications over the last six years, concludes the hourly rates charged by counsel for the Plaintiffs are reasonable.
The Court has reviewed the description for legal services performed by counsel for the Plaintiffs and has reviewed the specific objections asserted by Defendants to certain discrete services for which fees are sought. The Court has reviewed each page of the statements for fees and expenses that were submitted in support of Plaintiffs' Motion for Attorneys' Fees and Expenses. Specifically, the Court has reviewed the statements submitted to determine whether fees and expenses were charged for claims unrelated to the claims on which Plaintiffs Bryant and Drake prevailed at trial. Based on the Court's detailed review, it determines that the services performed and the description of them are services for which Plaintiffs are entitled to be awarded fees at the hourly rates charged. However, upon review of those services for which Defendants have asserted a specific objection, the Court
To the extent Defendants assert their general objection to the detail provided in the description of legal services for which compensation is requested, the Court's independent review of the statement submitted in support of Plaintiffs' fee application was sufficient for the Court to evaluate the reasonableness of the fees requested for the services performed.
Based on the Court's consideration of the objections to fees discussed above, the Court reduces the fees requested by $52,280.07. The Court reduces the compensable fees by an additional $198,759.50, to account for the dismissal of the claim based on the legislative immunity defense and the dismissal of claims against Defendant Stone. Thus, the Court awards total attorney fees of $1,788,835.50.
The Court also has reviewed the expenses charged and the Defendants' objection to the expenses. Having conducted a detailed review of each expense and the objections of the Defendants, the Court finds the expenses claimed allowable except as follows:
The total expenses for which reimbursement is not allowed is $8,091.77 for a total award of expenses in the amount of $102,292.80.
Plaintiffs seek fees to be awarded as a sanction for Defendants' litigation conduct and abuses, and ask for an enhancement of the award of attorneys' fees also based on defense counsels' conduct and for the result achieved. As the Court has noted, the conduct of defense counsel in this case, and especially their conduct at trial, is a great personal and professional disappointment. We live in an age of "win at all costs" litigation. This was the strategy apparently preferred by the Defendants and accommodated by their lawyers. It is how law is sometimes practiced these days, and it is regrettable. The Court is required to award a fair fee and expenses and it has done that. In the end, the fee award here is significant because Defendants and their lawyers employed a defense strategy that made this litigation expensive for the Plaintiffs and for the Defendants. In the end, the employment policy of the Defendants and their public-entity employer were exposed and the jury announced its verdict of disapproval and disdain of it. The question is: will the enactment of policies based on racial favor end? This case questions whether it ever will.
The award of attorneys' fees and expenses here is fair, reasonable compensation for the worked performed at the hourly rates of the timekeepers who performed it, unenhanced.
Accordingly,
Johnson, 488 F.2d at 717-19; accord Farley, 197 F.3d at 1340 n. 7; Gaines v. Dougherty County Bd. of Ed., 775 F.2d 1565, 1571 n. 13 (11th Cir.1985); Jones v. Central Soya Co., 748 F.2d 586, 588 n. 1 (11th Cir.1984); Dowdell v. City of Apopka, 698 F.2d 1181, 1187 n. 8 (11th Cir.1983).
