Case: 17-50109 Document: 00514274037 Page: 1 Date Filed: 12/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50109 FILED
December 14, 2017
Lyle W. Cayce
JON R. DEUTSCH, Clerk
Plaintiff - Appellant
v.
JESUS BECERRA, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CV-708
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
Jon Deutsch is before us a second time appealing an attorney’s fees and
costs ruling after he obtained a default judgment in his Americans with
Disabilities Act suit against a bakery. Deutsch has not identified error in the
district court’s fee decision, but the district court erred by refusing to enter an
order enforcing this court’s award of costs in Deutsch’s first appeal.
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 17-50109 Document: 00514274037 Page: 2 Date Filed: 12/14/2017
No. 17-50109
I.
Deutsch’s attorney has filed hundreds of ADA lawsuits in the Austin
Division of the Western District of Texas, making him well versed in that area
of the law and in the district’s procedures. The one before us was filed against
Jesus Becerra, Inc., owner of La Mexicana Bakery in Austin. Deutsch alleged
that Becerra failed to provide ADA-compliant parking and signage in the
parking lot of the bakery, that the step at the entrance of the bakery exceeded
ADA regulations by three and a half inches, and that there was no access ramp
to bypass the step.
Although Becerra was served with notice of the complaint, it failed to file
an answer or other defense and did not make an appearance. The district court
therefore entered a default judgment and permanent injunction against
Becerra, ordering Becerra to make the bakery ADA-compliant. Deutsch then
submitted a motion requesting $5500 in fees and $700 in costs. But the district
court ruled that each of the parties would “bear their own costs of court and
attorney’s fees.” Deutsch appealed, asserting that the district court erred in
failing to grant his request for attorney’s fees and costs of litigation. Noting
that a prevailing civil rights plaintiff like Deutsch is presumptively entitled to
fees and costs absent a special circumstance, we remanded the matter to the
district court for a calculation of attorney’s fees and costs. Deutsch v. Jesus
Becerra, Inc., 668 F. App’x 569, 571 (5th Cir. 2016).
On remand, Deutsch requested $15,500 in fees and $1236 in costs, which
was more than before because of the first appeal. The district court awarded
only $1000 in attorney’s fees and $400 in costs. Deutsch now contends that the
district court erred in its fee award and in failing to include the costs of the
first appeal. When it comes to the fees, however, for whatever reason Deutsch
asks only for the “original attorney’s fees sought,” which is the $5500 in fees
he said he incurred for his work in the district court. Appellant’s Brief at 31;
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see also id. at 17 (arguing that the initial request “of $6200” for fees and costs
was “reasonable and had a legitimate basis”). His appeal does not seek the 20
hours his second request said he spent working on the appeal (though as
mentioned he does seek the costs this court awarded in its judgment). 1
II.
We review the determination of attorney’s fees for abuse of discretion.
See Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001). As a prevailing party in
a civil-rights case, Deutsch was entitled to attorney’s fees “unless a showing of
‘special circumstances’ [was] made that would deem such an award unjust. Id.
at 508 (citation omitted). In calculating attorney’s fees, a court begins by
multiplying the number of hours reasonably expended on the litigation by a
reasonable hourly rate to yield a lodestar that can be adjusted up or down. See
Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 661 (5th Cir.
2002). The Johnson factors are then used to determine whether an adjustment
to the original lodestar amount is appropriate. See Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Among the many
considerations are the novelty and complexity of the issues, the time and labor
required, and the amount involved and results obtained. Id.; Walker v. U.S.
Dept. of Housing & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996).
In its evaluation of the number of hours Rosales worked on this case at
the trial level, the district court concluded that four hours was reasonable
considering that this was basically a “cookie-cutter exercise” for him. The trial
judge reached this conclusion because, in his view, the hundreds of similar
lawsuits that Rosales had filed resulted in a template “on which Rosales merely
changes names of defendants and other minor information . . . .” The district
1Because Deutsch does not seek the fees related to his first appeal, we express no opinion on
the propriety of the district court not awarding any fees for that stage of the litigation.
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court also concluded that $250/hour rather than the sought $500/hour was
reasonable because “[p]rosecution of this case did not require research, legal
reasoning, or drafting expertise.” It thus awarded Deutsch $1000 in attorney’s
fees ($250 * 4), without further adjustment.
We limit our review of the district court’s fee determination to the two
arguments Deutsch makes. He first contends that the district court abused its
discretion because it “did not provide a reasonably specific explanation for the
reduction of attorney’s fees.” See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
558 (2010). We disagree. The district court explained that Deutsch applied a
copy-and-paste litigation strategy, essentially using the same template to sue
a number of businesses for ADA violations. It thus concluded that this case
against the bakery could rely on ready-made pleadings and did not involve any
novel or difficult issues. Deutsch may not like or agree with that explanation,
but it is a reason.
Deutsch’s second attack on the fee award is that it should not have been
reduced based on the degree of success he achieved. He cites some cases from
the significant body of caselaw addressing the “degree of success” factor in civil
rights cases, which often do not seek a significant monetary remedy. See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983); Grisham v. City of Fort Worth,
837 F.3d 564, 570 (5th Cir. 2016). And Deutsch is right that he obtained
everything he asked for in this suit: an injunction requiring the bakery to
comply with federal disability law. The problem is that the district court did
not reduce the fee award on the ground that the lawsuit did not result in a
monetary recovery or was a limited success in some other respect. As
discussed, the reduction was based on the court’s view that the case did not
require much time because it was a “cookie-cutter exercise.” Saying that a
lawsuit is simple and does not require much work is different than saying that
it was not successful. See Johnson, 488 F.2d at 717–19 (listing as separate
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factors the “time and labor required,” “novelty and difficulty of the questions,”
and “the amount involved and the results obtained”). Because the district
court did not cite the results obtained as a basis for the reduction, this
argument is unavailing.
Deutsch has not identified an error that demonstrates an abuse of
discretion concerning the fee award.
III.
We reach a different result on his challenge to the limited award of costs,
which is also reviewed for abuse of discretion. Fogleman v. ARAMCO, 920 F.2d
278, 285 (5th Cir. 1991). Deutsch’s appeal on costs focuses solely on the district
court’s failure to grant his request for “Fifth Circuit Bill of Costs” in the amount
of $536. The district court denied Deutsch’s request for two reasons: (1)
Deutsch failed to provide any documentation to support his request and (2)
because “it would be inequitable to shift appellate costs” to Becerra when it did
not take any part in the appeal. As for the latter, it ignores that the panel
deciding Deutsch’s first appeal already ordered that he was entitled to costs.
The judgment from our court “ORDERED that defendant-appellee pay to
plaintiff-appellant the costs on appeal to be taxed by the Clerk of this Court.”
And Deutsch submitted a sworn bill of costs to the Fifth Circuit Clerk of Court.
That leaves just the first concern about whether evidence supported the
claimed amount of the costs. This court’s mandate ordered Becerra to pay
Deutsch’s “costs on appeal to be taxed by the clerk of this court.” The clerk
approved a sworn bill of costs in the amount of $536. That approved bill of
costs was sent to the district court along with this court’s judgment and
opinion. No further documentation was required in the district court. The
district court’s only duty was to enter an order consistent with this court’s
mandate that Becerra pay Deutsch’s costs on appeal taxed by the clerk of this
court. Cf. Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir.
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2007) (“The mandate rule requires a district court on remand to effect our
mandate and to do nothing else.” (quoting United States v. Castillo, 179 F.3d
321, 329 (5th Cir.1999))). The district court thus erred by refusing to enforce
this court’s judgment awarding Deutsch $536 for the “Fifth Circuit Bill of
Costs.”
* * *
We AFFIRM the district court’s award of attorney’s fees and VACATE
the judgment denying the costs for the first appeal with instructions to
MODIFY the judgment to include the $536 in costs from that appeal. That
modified judgment should also include the costs reflected in the bill of costs
that the court of appeals enters in this second appeal. Otherwise, it will have
cost Deutsch another filing fee to obtain the filing fee our court awarded as a
cost in the first appeal. Entry of the modified judgment including the amounts
approved in the Bills of Costs from both appeals will conclude this case.
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Jon Deutsch v. Jesus Becerra, Incorporated
Combined Opinion