[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 11-13438                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             JANUARY 30, 2012
                                 ________________________               JOHN LEY
                                                                         CLERK
                             D.C. Docket No. 9:06-cv-80070-KLR

RICHARD COHEN,

lllllllllllllllllllll                                                Plaintiff-Appellant,

                                           versus

WORLD OMNI FINANCIAL CORP.,

lllllllllllllllllllll                                              Defendant-Appellee.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (January 30, 2012)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Richard Cohen appeals the district court’s grant of attorneys’ fees to World

Omni Financial Corporation (“World Omni”) pursuant to 42 U.S.C. § 1988. On
appeal, he argues that the district court abused its discretion in awarding World

Omni attorneys’ fees and that, alternatively, the size of the award was an abuse of

the court’s discretion. For the reasons set forth below, we vacate and remand the

court’s award of attorneys’ fees.

                                          I.

      On May 13, 1995, while living in New York, Cohen leased a car. The

lessor’s interest in the lease was assigned to World Omni. Pursuant to New York

state law requiring prepayment, at the inception of the lease, of sales tax on the

total lease payments due during the lease term, Cohen immediately paid to World

Omni sales tax on all of the lease payments for the 36-month lease. In June 1996,

Cohen moved to Florida with the leased car. Pursuant to Florida law requiring

monthly payment of a use tax along with the monthly lease payments, World Omni

determined in June 1996 that it was required to begin collecting from Cohen use

tax for each of the remaining monthly lease payments. World Omni first billed

Cohen for the Florida use tax with the July 1996 lease installment. Cohen paid the

Florida use tax for approximately 15 months, through September 1997, before

refusing on grounds that he previously had paid sales tax in New York. He

unilaterally applied a “set-off” to his October 1997 lease payment in an amount

equal to the 15 months of Florida use-tax payments.

                                          2
      Due, at least in part, to Cohen’s refusal to pay the Florida use tax, World

Omni declared the lease in default in February 1998, repossessed the car, and sued

Cohen in state court in January 2000 for damages stemming from his breach of the

lease. In response to World Omni’s Florida action, Cohen submitted an answer

admitting non-payment but counterclaiming that World Omni actually had

breached the lease and libeled him. In defense of World Omni’s breach-of-lease

claim, Cohen argued that collecting the Florida use tax without credit for the

previously paid New York sales tax violated the Commerce Clause. World Omni

then moved for summary judgment on Cohen’s counterclaim.

      The state court granted summary judgment to World Omni on the issue of

liability based solely on Cohen’s non-payment, without addressing Cohen’s

constitutional defense. After a jury trial on the issue of damages, Cohen was

ordered to pay a money judgment. Cohen appealed the judgment to the state

appellate court, again raising his constitutional defense. The state appellate court

per curiam affirmed the judgment without a written opinion. Cohen submitted a

petition for writ of certiorari to the state district court of appeals, again raising his

constitutional defense. The state district court of appeals denied certiorari without

a written opinion. In June 2005, Cohen paid the money judgment and associated

attorneys’ fees. Cohen then petitioned the U.S. Supreme Court for writ of

                                            3
certiorari, which was denied in October 2005 without a written opinion.

      Cohen filed his original § 1983 complaint against World Omni on January

20, 2006. On March 23, 2006, World Omni filed a motion to dismiss or, in the

alternative, motion for summary judgment. In this motion, World Omni argued

that Cohen’s complaint failed to state a claim on which relief could be granted

because: (1) there was no state action; (2) on the face of the complaint, the claim

was time barred under the applicable four-year statute of limitations; and (3) the

doctrines of collateral estoppel and res judicata barred relief. As to the statute of

limitations issue, Cohen responded that his claim was not time barred because he

was not actually injured until he had exhausted his options in the state appellate

courts and was forced to pay the unconstitutional tax as part of the state-court

judgment in June 2005.

      The court converted the motion to dismiss into a motion for summary

judgment and gave Cohen the opportunity to file additional arguments and

evidence. In a memorandum of law, Cohen asserted that, as to World Omni’s res

judicata argument, his claim did not accrue until June 2005. Until that point, he

argued, he had not been injured because he had not actually paid the

unconstitutional tax. Cohen also submitted the affidavit of Chris Slader, a tax

manager at World Omni’s parent company. Slader attested that World Omni was

                                          4
required by the state to collect and pay the monthly use tax on Cohen’s leased car.

The court granted World Omni’s motion for summary judgment, finding that it

was barred by res judicata. The court also questioned its jurisdiction under the

Rooker-Feldman1 doctrine. Cohen appealed this order. World Omni moved for

attorneys’ fees. The court awarded World Omni attorneys’ fees, and Cohen again

appealed.

       In reviewing the orders granting summary judgment and attorneys’ fees, we

remanded the case to allow the district court to consider whether it had

jurisdiction, did not address the court’s res judicata findings, and vacated the

award of attorneys’ fees.

       On remand, the district court determined that it had jurisdiction for

Rooker-Feldman purposes and that Cohen’s claim was not barred by res judicata

or collateral estoppel. The district court then considered World Omni’s original

motion to dismiss. The court dismissed the case because Cohen had not stated a

cause of action under § 1983. Specifically, Cohen could not show that World

Omni acted under color of state law. The court declined to address World Omni’s

statute of limitations defense because it was “an affirmative defense appropriate



       1
        Rooker v. Fid. Trust Co., 

, 

, 

(1923); D.C. Court
of Appeals v. Feldman, 

, 

, 

(1983).

                                              5
for resolution on summary judgment.” The court gave Cohen 15 days to file an

amended complaint.

      Cohen filed an amended complaint, alleging, among other things, that

World Omni received state encouragement from policies issued by the Florida

Department of Revenue and acted under color of state law when it brought suit in

a Florida court asking that court to enforce a discriminatory practice. He further

alleged that World Omni had acted intentionally or with deliberate indifference or

callous disregard of his rights within the meaning of § 1983, as the Commerce

Clause forbids a state from imposing a tax identical to one already paid in another

state without providing credit for the out-of-state payment.

      On October 26, 2009, World Omni filed its first answer, in which it asserted

a number of affirmative defenses. In particular, World Omni asserted that Cohen

had not established the under color of law element because World Omni was

required by Florida law to collect the tax.

      World Omni later moved for summary judgment and submitted the

deposition of Buzz McKown, a Revenue Program Administrator for the

Department of Revenue. McKown testified that dealers were required to comply

with the Florida sales and use tax, which required a dealer to collect and remit the

tax even if a vehicle lessee moved to Florida after paying sales tax up front in New

                                          6
York. The legislature provided that dealers would receive collection allowances

for collecting and remitting taxes in a timely manner, but McKown was not aware

of any coercion of dealers. If a dealer failed to collect and remit the use tax, both

the dealer and the lessee would become liable for the uncollected tax, as well as

interest and penalties. World Omni also submitted Slader’s deposition, at which

he testified that World Omni was required by the state to collect the tax even if the

customer had paid sales tax in another state and that World Omni would be subject

to financial and criminal penalties if it did not do so. World Omni remitted the

entire tax it collected from Cohen to the state, and it was not coerced to collect the

tax.

       In response, Cohen asserted that, in both the state and federal proceedings,

World Omni stated that it was required by the Department of Revenue to collect

the tax. Such a statement was inconsistent with World Omni’s argument that it

was not coerced into collecting the tax. World Omni agreed that it would have

been penalized if it had not collected the tax, and Cohen argued that such penalties

indicated that the state coerced World Omni into collecting the tax. Cohen also

submitted a number of documents in support of his opposition to the motion for

summary judgment, including: (1) World Omni’s state court motion for summary

judgment, in which World Omni asserted that it was required under Florida law to

                                          7
collect the tax; and (2) Slader’s affidavit, in which he attested that World Omni

had been required under Florida law to collect from Cohen and pay Florida state

taxes on the vehicle even though Cohen had already paid sales tax on the vehicle

in New York.

      On August 5, 2010, World Omni substituted its counsel, replacing the law

firm Ritter Chusid Bivona & Cohen, LLP with the law firm Akerman Senterfitt.

      On August 9, 2010, World Omni moved to amend its answer to include the

affirmative defense that Cohen’s claim was barred by the statute of limitations.

The same day, World Omni moved for leave to file a motion for summary

judgment based on its statute of limitations defense. The court granted both of

these motions on August 10, 2010. In its amended answer, World Omni continued

to assert that it was not acting under color of law because Florida law required it to

collect the tax, and it added the affirmative defense that Cohen’s claim was barred

by the statute of limitations. In its motion for summary judgment, World Omni

argued that the claim had accrued in or before June 1996, when he brought his

vehicle to Florida and the Florida use tax first was assessed. The amended

complaint specifically alleged that the Commerce Clause violation was caused by

the refusal to credit taxes already paid to New York. According to World Omni,

Cohen had been aware of the injury at least since June 1996. There also was no

                                          8
dispute as to his knowledge that World Omni inflicted the alleged injury, as he had

been involved in state-court litigation with World Omni since January 2000 and

had specifically alleged a counterclaim in February 2000 on the basis of the

purported double taxation.

      Cohen responded that a claim does not accrue until the wrongful act results

in damages. World Omni’s invoicing of the tax did not result in damages because

Cohen took a set-off to his October 1997 lease payment in an amount equal to the

Florida tax he had paid up to that date and thus did not pay the tax on net. He

argued that damages began to accrue after World Omni resorted to the state court

to collect the tax and that the damages continued to accrue throughout the entirety

of the state court litigation. Had he succeeded in the state court, he would have

suffered no damages because he would not have had to pay any judgment. World

Omni replied, in part, that any damages that Cohen suffered accrued by October

1997, when Cohen unilaterally took a set-off for the Florida tax that he had paid.

      After holding a hearing on the motion for summary judgment, the district

court granted World Omni’s motions for summary judgment. First, the court

addressed whether Cohen’s claim was barred by the statute of limitations, finding

that his claim was barred under any possible timeline. The court explained that

Cohen’s claim was subject to a four-year statute of limitations, and Cohen’s claim

                                         9
was barred if it had not accrued by January 20, 2002—four years before he filed

his original § 1983 complaint. The complained-of injury was the alleged double

taxation that occurred when the Florida use tax first was assessed in June 1996 and

World Omni refused to credit the New York taxes against the Florida tax. Finally,

Cohen’s memorandum in opposition stated that the alleged constitutional injury

arose when World Omni resorted to the state court in 2000 to collect the tax.

Thus, under any timeline, the cause of action accrued before January 20, 2002.

      Next, regarding whether World Omni was acting under color of state law,

the court found that there was no evidence of coercion or significant

encouragement to satisfy the state compulsion test. World Omni collected the tax

because it was required by law to do so, but Slader testified that World Omni was

not coerced into collecting the tax. The court also found that Cohen had not

established a constitutional violation. Cohen argued that his constitutional injury

arose when World Omni brought an action in state court. However, World Omni

had initiated that lawsuit because Cohen defaulted on his lease for more reasons

than simply failing to pay the Florida tax. Thus, Cohen could not show that the

state-court lawsuit violated his rights under the Constitution. Finally, the court did

not need to address the merits of his Commerce Clause theory because he had not

established that World Omni acted under color of law. Accordingly, the district

                                          10
court entered judgment in favor of World Omni and against Cohen. Cohen

appealed.

      On December 17, 2010, World Omni filed a motion for attorneys’ fees and

costs under 42 U.S.C. § 1988, arguing that Cohen’s lawsuit was frivolous. First, it

argued, Cohen did not establish a prima facie case. He had failed to present any

evidence that World Omni acted under color of law, as required in a § 1983 claim,

and his claim had been time barred for over ten years, since June 2000. Second,

World Omni argued that it had not made a large settlement offer, which further

supported a finding of frivolity and its motion for attorneys’ fees. Third, the

district court granted its motion for summary judgment, resolving the case before

trial. World Omni sought $228,895.00 in attorneys’ fees as well as interest.

Finally, World Omni sought an additional $6,409.37 in costs under § 1988.

      In response, Cohen argued that he established a prima facie case, but even if

he had not done so, attorneys’ fees would not be required. One factor that went

against a finding of frivolity was the attention given to the claim by the district

court. Here, the court had issued a number of orders, considered a number of legal

issues, found in Cohen’s favor as to issues such as res judicata, sua sponte held a

summary judgment hearing, and issued a 15-page order granting World Omni’s

motion for summary judgment. Finally, World Omni did not assert that his claim

                                          11
was time barred until August 2010, after it had already filed its motion for

summary judgment.

      World Omni replied that Cohen’s claim was frivolous, first because it had

been time barred since October 2001. World Omni had first raised the statute of

limitations as part of its 2006 motion to dismiss. However, the district court

declined to consider that issue in ruling on the motion to dismiss. Cohen had been

aware of this defense since 2006, and it was irrelevant that World Omni added that

defense in an amendment to its motion for summary judgment.

      Subsequently, we affirmed the district court’s grant of summary judgment to

World Omni. We held that Cohen’s claim was barred by the statute of limitations,

and we declined to reach the additional issues on appeal of whether World Omni

acted under color of law or whether Cohen had suffered a constitutional violation.

As to the statute of limitations, Cohen’s claim was time barred if it had accrued

before January 20, 2002. Cohen alleged that World Omni violated his

constitutional rights by imposing the Florida tax without crediting him for the tax

he had paid in New York. World Omni had imposed the Florida tax for 15 months

beginning in July 1996, and Cohen first noticed the tax in October 1997. Thus, if

Cohen’s rights were violated, the violations occurred from July 1996 through

September 1997. Cohen’s attempt to apply a set-off did not mean he had not been

                                         12
injured, it merely showed that he had discovered his alleged injury. Thus, he was

aware of his injury by October 1997, the limitations period began to run before

January 20, 2002, and his claim was time barred.

      The district court then granted World Omni’s motion for attorneys’ fees and

costs, awarding World Omni $228,895 in attorneys’ fees and $6,409.37 in costs,

plus interest. First, the court found that Cohen had not presented any evidence to

show that World Omni acted under color of law, an element of a § 1983 claim.

Second, Cohen’s claim had been time barred since 2000, and under Munshi v. N.Y.

Univ., 

(S.D.N.Y. 1981), attorneys’ fees were appropriate when

a party should have known that his claim was time barred. Third, World Omni did

not make a large settlement offer. Fourth, the case did not proceed to trial because

the court had granted summary judgment to World Omni. As to the

reasonableness of the attorneys’ fees, the court expressed concern at the $525

hourly rate one of the attorneys at Akerman Senterfitt had charged. However,

Cohen had not objected to the number of hours claimed or to the hourly rate billed,

and the court found that the requested attorneys’ fees were reasonable. Cohen

timely appealed the order granting attorneys’ fees and costs.

                                         II.

      We review the award of attorneys’ fees for an abuse of discretion. Quintana

                                         13
v. Jenne, 

, 1309 (11th Cir. 2005). A court abuses its discretion by

applying an incorrect legal standard, following incorrect procedures in making a

determination, or making clearly erroneous factual findings. Cordoba v. Dillard’s,

Inc., 

, 1180 (11th Cir. 2005) (quotation omitted).

      In a 42 U.S.C. § 1983 case, “the court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C.

§ 1988(b). A prevailing defendant is only to be awarded attorneys’ fees where the

plaintiff’s case was “meritless in the sense that it [was] groundless or without

foundation.” Hughes v. Rowe, 

, 14, 

, 178, 

(1980) (quotation omitted). Attorneys’ fees are also warranted where the

plaintiff’s claim “was frivolous, unreasonable, or groundless, or . . . the plaintiff

continued to litigate after it clearly became so.” 

101 S.Ct. at 178-79

(quotation omitted).

      Whether a claim is frivolous is a case-by-case determination. Sullivan v.

Sch. Bd. of Pinellas Cnty., 

, 1190 (11th Cir. 1985). We have

considered a number of factors in reviewing courts’ frivolity determinations,

including: “(1) whether the plaintiff established a [prima facie] case; (2) whether

the defendant offered to settle; and (3) whether the trial court dismissed the case

prior to trial.” 

(holding that the plaintiff’s claim was not frivolous

                                           14
where she had established a prima facie case even though she ultimately lost at

trial). “[T]he presentation of a [prima facie] case in response to a motion for

summary judgment means that a claim necessarily cannot . . . be considered

frivolous.” 

(holding that the plaintiff’s discrimination

claim was not frivolous, despite her inability to rebut the defendant’s legitimate

reason for failing to promote her, because she had established a prima facie case).

Generally, where a plaintiff introduces sufficient evidence to support his claims, a

finding of frivolity will not be upheld. 

. However,

where a plaintiff introduces no evidence in support of his claims, a finding of

frivolity is appropriate. 

we consider in a § 1988 case is the

attention given to the claim: a claim is not frivolous when it is “meritorious

enough to receive careful attention and review.” Busby v. City of Orlando, 

, 787 (11th Cir. 1991).

      “To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a

violation of a constitutional right, and (2) that the alleged violation was committed

by a person acting under color of state law.” Holmes v. Crosby, 

,

1258 (11th Cir. 2005). Private conduct may be fairly attributable to the state

where: (1) “the deprivation [was] caused by the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the state or by a person for

                                         15
whom the State is responsible,” and (2) “the party charged with the deprivation . . .

may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 

,

937, 

, 2753-54, 

(1982). Where the plaintiff alleges

that the private defendant’s conduct was the product of an unconstitutional

statutory scheme, the first element of the fair-attribution test is satisfied. 

102 S.Ct. at 2756. There are three tests generally used in this Court to

determine whether a defendant is a state actor: “(1) the public function test; (2) the

state compulsion test; and (3) the nexus/joint action test.” Willis v. Univ. Health

Servs., Inc., 

, 840 (11th Cir. 1993). The plaintiff need only establish

that the defendant is a state actor under one of these three tests. See 

compulsion test limits state action to instances where the government has coerced

or at least significantly encouraged the action alleged to violate the Constitution.”

Where the statutes at issue merely permitted the

defendant's conduct without either compelling or encouraging it, the state

compulsion test is not satisfied. Harvey v. Harvey, 

, 1130-31 (11th

Cir. 1992). “Mere approval or acquiescence in the private actor’s choice is not

enough.” Langston ex rel. Langston v. ACT, 

, 385 (11th Cir. 1989).

Rather, the state must enter into the decision-making process, such that the private

actor’s choice may be deemed that of the state. 

Cohen moved to Florida in 1996, state law provided as follows:

      (3) Every dealer making sales . . . of tangible personal property for
      distribution, storage, or use or other consumption, in this state, shall .
      . . collect the tax imposed by this chapter from the purchaser.
      ....
      (8)(a) Use tax will apply and be due on tangible personal property
      imported or caused to be imported into this state for use,
      consumption, distribution, or storage to be used or consumed in this
      state; provided, however, that . . . it shall be presumed that tangible
      personal property used in another state, territory of the United States,
      or the District of Columbia for 6 months or longer before being
      imported into this state was not purchased for use in this state. The
      rental or lease of tangible personal property which is used or stored
      in this state shall be taxable without regard to its prior use or tax
      paid on purchase outside this state.

Fla. Stat. § 212.06(3), (8)(a) (1996) (emphasis added). Chapter 212 imposes

various civil and criminal penalties on dealers who fail to comply with its

requirements. Fla. Dep’t of Revenue v. Naval Aviation Museum Found., Inc., 

, 587 (Fla. Dist. Ct. App. 2005).

      Although a close question, we conclude that the district court abused its

discretion in granting World Omni’s motion for attorneys’ fees. See 

. As to the first Sullivan factor, whether Cohen established a

prima facie case, the district court found that Cohen failed to present any evidence

that World Omni acted under color of law. This finding was clearly erroneous, as

Cohen submitted evidence in support of his argument that World Omni acted



                                          17
under color of law.2 See 

. In opposition to the motion

for summary judgment, Cohen argued that, based on World Omni’s assertions that

it was required by the state to collect the tax or be subjected to penalties, World

Omni acted under color of law in that it was coerced into violating the

Constitution by enforcing the unconstitutional Florida law. Cohen submitted

World Omni’s state court motion for summary judgment, in which World Omni

asserted that it was required under Florida law to collect the tax. Cohen also

attached Slader’s affidavit to his response, in which Slader attested that World

Omni had been required under Florida law to collect from Cohen and pay Florida

state taxes on the vehicle even though Cohen had already paid sales tax on the

vehicle in New York. Therefore, Cohen did present evidence in support of his

claim that World Omni collected the tax under color of law.

       Moreover, it appears that Cohen was correct that World Omni acted under

color of law. Section 212.06(8)(a) did not merely permit or authorize the

collection of use taxes. Cf. 

(holding that a private

party who invoked a statute that merely authorized, without encouraging or



       2
         We do not address the second element of Cohen’s § 1983 claim, whether there was a
constitutional violation, because the district court did not address this element in awarding
attorneys’ fees and neither party addresses this element on appeal. See 

.

                                               18
compelling, involuntary commitments was not a state actor). Rather, it explicitly

mandated the collection of the taxes, and chapter 212 imposed both civil and

criminal penalties on dealers who failed to comply. § 212.06(3), (8)(a); Naval

Aviation Museum 

. The state legislature decided that

lessees who moved to Florida from “up-front” states would be subject to the

Florida use tax, and it gave dealers and lessors such as World Omni no discretion

to decide whether and when to impose the tax. § 212.06(3), (8)(a). Slader’s and

McKown’s assertions that they did not perceive the measures as coercive rings

hollow and certainly does not outweigh the fact that the scheme of incentives and

penalties “at least significantly encouraged” World Omni's collection of the

allegedly unconstitutional tax. See 

. Thus, the state

“enter[ed] into the decision-making process, such that [World Omni's] choice may

be deemed that of the state.” 

(11th Cir. 1989). Because

Cohen only needed to establish that World Omni was a state actor under one test,

we do not consider whether the public function or nexus/joint action tests are met.

See 

. Based on the above, the first factor weighs in Cohen’s

favor despite the district court’s contrary finding.

      The second factor, a defendant’s offer to settle, weighs in World Omni’s

favor. Although there is no evidence regarding settlement offers in the record,

                                          19
World Omni asserted in its motion for attorneys’ fees that it had not made a large

settlement offer.

        The third factor, whether the case proceeded to trial, weighs in World

Omni’s favor because the grant of summary judgment was ultimately upheld,

precluding trial.

        The fourth factor, the attention given to Cohen’s claim, weighs in Cohen’s

favor. Both we and the district court have given this case careful attention in

deciding issues related to the district court’s jurisdiction, the doctrines of res

judicata and collateral estoppel, and whether the claim was timely. The district

court also held a hearing on the motion for summary judgment and considered the

merits of Cohen’s claim both in ruling on a motion to dismiss and in ruling on a

motion for summary judgment.

        In sum, two factors weigh in Cohen’s favor, and two factors weigh in World

Omni’s favor. The district court abused its discretion in weighing the factors

regarding the alleged frivolity of Cohen’s claim because the factor regarding the

merits of Cohen’s claim weighs in his favor. That is, Cohen’s claim is not

frivolous because he established a prima facie case. See 

.

        Additionally, the court erred in finding that Cohen’s claim was frivolous in

                                           20
part because it was time barred. The court relied on Munshi, a case from the

Southern District of New York, which is not binding on us. We have not

previously considered whether a time-barred claim is frivolous under § 1988, and

we decline to do so here, where Cohen established a prima facie case. See

.

      For the foregoing reasons, we vacate the district court’s order granting

World Omni attorneys’ fees and remand for entry of an appropriate order.

      VACATED AND REMANDED.




                                        21