Beach Blitz Co. v. City of Miami Beach, Florida ( 2021 )

USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 1 of 41
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11380; 19-11397
________________________
D.C. Docket No. 1:17-cv-23958-UU
BEACH BLITZ CO.,
d.b.a. Ocean 9 Liquor,
d.b.a. Ocean 11 Market,
Plaintiff - Appellant
Cross Appellee,
versus
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of Florida,
PHILIP LEVINE,
an individual,
JIMMY L. MORALES,
an individual,
MICKEY STEINBERG,
an individual,
RICKY ARRIOLA,
an individual,
MICHAEL GREICO,
an individual,
JOY MALAKOFF,
an individual,
KRISTEN ROSEN GONZALEZ,
an individual,
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 2 of 41
JOHN ELIZABETH ALEMAN,
an individual,
RAUL J. AGUILA,
an individual,
ALEKSANDR BOKSNER,
an individual,
Defendants - Appellees
Cross Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 21, 2021)
Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
This appeal concerns a dispute about attorney’s fees, specifically, who was
the prevailing party, and whether the claims were frivolous. On October 30, 2017,
Beach Blitz Co. d/b/a Ocean 9 Liquor and d/b/a Ocean 9 Market (“Beach Blitz”)
sued the City of Miami Beach (“the City”) and ten individual defendants (the
“Individual Defendants”) asserting three procedural due process claims, a
substantive due process claim, and a First Amendment retaliation claim. Beach
Blitz alleged that the City’s enactment and enforcement of ordinances regulating
the sale of liquor and requiring businesses selling liquor to obtain licenses violated
its substantive and procedural due process rights. It further alleged that the City’s
2
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 3 of 41
closure of its store one day after it met with a City attorney constituted retaliation
for Beach Blitz’s protected First Amendment conduct. The City sought to dismiss
Beach Blitz’s claims pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
The district court granted the City’s motion, dismissing the procedural and
substantive due process claims on the merits, without prejudice, and without leave
to amend, and the First Amendment retaliatory claim on the merits as well, without
prejudice but with leave to amend. Beach Blitz did not amend its First
Amendment claim by the stated deadline and the district court dismissed that claim
too.
The district court found the City to be the prevailing party on all five claims,
determined that each of them were “frivolous, unreasonable, or without
foundation,” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978),
and awarded fees for each. We agree with the district court’s prevailing party
determination because the City rebuffed Beach Blitz’s efforts to effect a material
alteration in the legal relationship between the parties. We also agree with the
district court’s frivolity determination concerning the procedural and substantive
due process claims. We think, however, that Beach Blitz’s First Amendment
retaliation claim was not frivolous. We, therefore, affirm in part, vacate in part,
and remand this case to the district court to recalculate the attorney’s fees to which
the City is entitled on the procedural and substantive due process claims.
3
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 4 of 41
I.
The essential facts necessary to understanding the instant appeal are these:
A. The Ordinances.
In 2016, a City Commission passed several ordinances regulating the sale of
liquor in the mixed entertainment use area of South Beach (the “MXE District”)1
after determining that the sales were having a negative effect on the health, safety,
and welfare of the City’s residents and visitors. Some of the ordinances limited the
times during which liquor could be sold by package liquor stores in the MXE
district to between 10 a.m. and 10 p.m. The Commission also considered an
ordinance that would prohibit sales after 8 p.m. In addition, the City adopted an
ordinance prohibiting package liquor stores and package sales of alcoholic
beverages by any retail store or alcoholic beverage establishment within the MXE
District. This ordinance did not affect the operation of existing package stores in
the MXE district. The Commission Memorandum supporting the ordinance
explained that “[p]ackage sales of alcoholic beverages may encourage patrons to
walk around with alcoholic beverages and consume alcoholic beverages in the
City’s parks, and on the City’s streets and sidewalks.” The Memorandum further
noted that “[t]he consumption of open containers of alcoholic beverages in public
1
The MXE district is comprised of the area between Ocean Drive and Washington Avenue and
Fifth Street and Fifteenth Street.
4
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 5 of 41
places may cause undesirable noise, as well as contribute to litter and noxious
odors.”
B. BTR License and Beach Blitz.
The City Code requires every business operating in the City to pay a
business tax, for which it receives a Business Tax Receipt (“BTR license” or
“BTR”), “for the privilege of engaging in or managing any business, profession, or
occupation within the city.” Code of the City of Miami Beach, Florida §§ 102-
356, 102-357 (the “City Code”). Each BTR is valid for one year -- the City issues
on October 1 each year and the BTR expires on September 30 of the following
year. City Code § 102-360.
Beach Blitz owned and operated Ocean 9 Liquor, a package liquor store in
the MXE District. Beach Blitz applied for and renewed its BTR license for the
2015–16 fiscal year. The BTR license expired on September 30, 2016, and Beach
Blitz did not timely renew it.
Between December 2016 and June 2017, Beach Blitz received three citations
related to its Ocean 9 store. The first citation, issued on December 21, 2016, cited
Beach Blitz for selling liquor before 10:00 a.m. and imposed a $1,000 fine. It
provided Beach Blitz 20 days to appeal the citation to a Special Master. The latter
two citations were both issued on June 25, 2017. The first was for selling liquor
after 10:00 p.m. and imposed a $1,000 fine. The second was a Notice of Violation
5
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 6 of 41
of Section 102-377 for “failure to obtain a Business Tax Receipt,” which also
imposed a $1,000 fine. The Notice expressly directed Beach Blitz to “[c]ease
immediately until you obtain a Business Tax Receipt from the City of Miami
Beach.” Both citations provided Beach Blitz with 10 days to appeal to a Special
Master. Beach Blitz did not appeal any of the citations within the time frames
provided. As a result, the citations were considered obligations due and owed to
the City as of the date the time to appeal expired.
On August 28, 2017, Beach Blitz reached an agreement with the City
Attorney’s Office to resolve all three citations for $1,000. The settlement did not
include the payment owed for a BTR license. On September 28, 2017,2 the Special
Master entered an agreed order in which Beach Blitz admitted to the violations and
agreed to pay $1,000 to resolve all three citations. On or about October 4, 2017,
Beach Blitz paid the $1,000 fine pursuant to the consent agreement. But Beach
Blitz did not submit payment for a BTR license on that date, nor did it submit
payment to the City to renew its BTR license at any point during the 2016–2017
fiscal year (from October 1, 2016 to September 30, 2017).
On October 5, 2017, Beach Blitz’s counsel met with City representatives and
the deputy city attorney. During this meeting, Beach Blitz’s lawyer stated that he
2
The Special Master’s office did not execute the order until September 28, 2017 because of
Hurricane Irma.
6
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 7 of 41
believed the ordinances enacted were “arbitrary, capricious, unreasonable and
designed to force the package stores out of business in the MXE district.”
On October 6, 2017, the City issued another citation to Beach Blitz for
continuing to operate without a BTR license. The citation directed Beach Blitz to
“[c]ease [operating] immediately until you obtain a Business Tax Receipt from the
City of Miami Beach.” Beach Blitz alleged that following the closure, the deputy
city attorney advised its counsel that the City’s actions “were not likely
coincidental and a long time coming.” On October 11, 2017, Beach Blitz
submitted payment to the City to renew its BTR license. Because Beach Blitz had
not renewed its license in the fiscal year after its expiration, its license had been
placed in “closed” status. Beach Blitz, therefore, needed to submit a new BTR
license application pursuant to § 102-371 of the City Code in order for the City to
act on a request for the BTR license.
C. Prior Proceedings.
On October 30, 2017, Beach Blitz filed the instant action in the Southern
District of Florida asserting three procedural due process claims (Counts I, II, and
V), a substantive due process claim (Count III), and a First Amendment retaliation
claim (Count IV) against the City and ten individual defendants. 3 Beach Blitz
3
Beach Blitz also brought two claims against the City and the Individual Defendants alleging
that they exceeded the authority delegated to them by the State of Florida in passing the relevant
7
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 8 of 41
alleged that the City violated its procedural due process rights by “establish[ing] a
custom, policy, pattern and practice of unlawfully targeting package stores in the
MXE district.” Beach Blitz further alleged that the City violated its procedural due
process rights by “wrongfully threaten[ing] and wrongfully coerc[ing] . . .
[Plaintiff] to shut down” its business and that the City Code’s “authorization to
prevent a business from operating until [it obtains] the required BTR without
requiring due process, violates the United States Constitution.” Beach Blitz also
claimed that it had a “liberty and/or property interest in conducting its lawful
business of selling alcohol,” and “[t]he City’s unilateral and arbitrary suspension of
[its] BTR license and resulting closure of its business [was] without due process of
law” and, therefore, violated its substantive due process rights. Finally, Beach
Blitz’s First Amendment retaliation claim arose from the fact that the day after
Beach Blitz’s attorney met with the deputy city attorney to discuss Beach Blitz’s
concerns with the ordinances, the City shut down Beach Blitz’s Ocean 9 store, and
the deputy city attorney later remarked that the closure was “not likely coincidental
and a long time coming.”
Shortly after filing its complaint, Beach Blitz filed an emergency motion for
preliminary injunctive relief challenging the City’s October 6, 2017 closure of its
ordinances (Counts VI and VII). Beach Blitz voluntarily dismissed Counts VI and VII after the
City filed its motion to dismiss, so we only address Counts I through V.
8
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 9 of 41
liquor store. The district court denied the motion, concluding that Beach Blitz was
not likely to succeed on any of its § 1983 claims.
The City then moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), asserting that the complaint was baseless and failed to
state any federal causes of action under § 1983.
On February 5, 2018, the district court dismissed Counts I, II, III, and V of
the complaint without prejudice and without leave to amend. The court found that
the individual defendants were entitled to absolute immunity; that Beach Blitz
failed to state a procedural due process claim since it did not allege that it
attempted to avail itself of any state remedies; and that Beach Blitz failed to state a
substantive due process claim because it had not alleged facts sufficient to show
that any substantive liberty or property interest had been infringed upon by the
City’s actions. As for Count IV, Beach Blitz’s First Amendment retaliation claim,
the court held that the complaint failed to establish a causal connection between
Beach Blitz’s protected speech and any action taken by the defendants. Finding
that amendment might not be futile, however, the court dismissed Count IV
without prejudice and with leave to amend, permitting Beach Blitz to file an
amended Count IV containing “sufficient factual allegations to establish Plaintiff’s
speech during the meeting was the ‘motivating factor behind’ the Code
Enforcement Officer’s October 6, 2017 issuance of the Second BTR Violation and
9
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 10 of 41
closure of Ocean 9.” But Beach Blitz did not file an amended complaint
concerning Count IV, and the district court dismissed this claim too without
prejudice, entered judgment for the City, and closed the case on February 15, 2018,
denying Beach Blitz any further opportunity to amend its pleadings.
On April 6, 2018, the defendants moved to recover attorney’s fees pursuant
to 42 U.S.C. § 1988. The district court found the City to be the prevailing party,
noting that its dismissal order “effected a sufficient alteration in the legal
relationship of the parties” so that the defendants could be considered the
prevailing party.4 The court also found each of Beach Blitz’s claims to be
groundless, frivolous, unreasonable, or without foundation since Beach Blitz failed
to establish a prima facie case on any of its claims, the City never made an offer of
settlement, and the case was dismissed early on in the proceedings. The court
noted that it did not need to “grappl[e] with a nuanced or novel area of the law or .
. . mak[e] a close call in dismissing any of [Beach Blitz’s] claims,” and this
weighed in favor of a finding of frivolity. Therefore, the court held that it could
award attorney’s fees to the City.
The defendants sought to recover a total of $290,453.60 in attorney’s fees.
After thorough review and a detailed explanation of its reasoning, the magistrate
4
In an initial Report & Recommendation that was rejected by the district court, the magistrate
judge had recommended that the motion be denied, concluding that the City was not the
prevailing party.
10
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 11 of 41
judge determined that the defendants should be awarded $132,785.85 in attorney’s
fees. The district court adopted the magistrate judge’s Report & Recommendation,
concluding that the magistrate judge properly: “(1) reviewed the categories of fees
stage-by-stage of the litigation . . . (2) determined whether the fees incurred were
excessive for that stage; and (3) where he answered that question in the
affirmative, applied a percentage reduction.” The court also concluded that the
magistrate judge “was reasonably specific, under the circumstances, as to why each
particular percentage reduction was appropriate for each category of work.” The
court issued a final judgment awarding attorney’s fees in the amount of
$132,785.85 in favor of the City.
Beach Blitz timely appealed the district court’s prevailing party
determination, and the City cross-appealed, asserting that the district court abused
its discretion by reducing the fee award.
II.
We turn first to the district court’s conclusion that the City was entitled to
attorney’s fees. “It is the general rule in the United States that in the absence of
legislation providing otherwise, litigants must pay their own attorney’s fees.”
Christiansburg, 434 U.S. at 415. “But Congress has authorized courts to deviate
from this background rule in certain types of cases by shifting fees from one party
to another.” Fox v. Vice, 563 U.S. 826, 832 (2011). Title 42 U.S.C. § 1988 falls
11
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 12 of 41
into this category, providing that “[i]n any action or proceeding to enforce a
provision of [Section 1983] . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as part of
the costs . . . .” 42 U.S.C. § 1988(b).
Because Congress intended for prevailing defendants to recover fees only
when forced to defend suits “having no legal or factual basis,” Christiansburg, 434
U.S. at 420, a defendant may recover attorney’s fees “only if the District Court
finds that the plaintiff’s action was frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.” Hughes v. Rowe, 449 U.S. 5, 14
(1980) (quotation marks omitted); accord CRST Van Expedited, Inc. v. E.E.O.C.,
136 S. Ct. 1642, 1646 (2016) (“When a defendant is the prevailing party on a civil
rights claim, the Court has held, district courts may award attorney’s fees if the
plaintiff’s ‘claim was frivolous, unreasonable, or groundless,’ or if ‘the plaintiff
continued to litigate after it clearly became so.’”) (quoting Christianburg, 434 U.S.
at 422).
We review the factual findings underlying the district court’s prevailing
party determination for clear error. See Church of Scientology Flag Serv., Org.,
Inc. v. City of Clearwater, 2 F.3d 1509, 1512–13 (11th Cir. 1993). “Whether the
facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal question
reviewed de novo.” Id. at 1513.
12
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 13 of 41
We review the “determination that a plaintiff’s case was so frivolous,
unreasonable, or groundless, as to justify an award of fees under” 42 U.S.C. § 1988
for abuse of discretion. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1179 (11th
Cir. 2005) (internal citation and quotation marks omitted). A “‘district court by
definition abuses its discretion when it makes an error of law.’” Quintana v. Jenne,
414 F.3d 1306, 1309 (11th Cir. 2005) (quoting Koon v. United States, 518 U.S. 81,
100 (1996)). “[W]hen determining whether a claim was or became frivolous, we
view the evidence in the light most favorable to the non-prevailing plaintiff.”
Johnson v. Florida, 348 F.3d 1334, 1354 (11th Cir. 2003) (citing E.E.O.C. v. Pet,
Inc., 719 F.2d 383, 384 (11th Cir. 1983)) (emphasis in original).
A.
Our first question is whether the City was the prevailing party. In CRST
Van Expedited, Inc. v. E.E.O.C., the Supreme Court emphasized a “[c]ommon
sense” approach to the prevailing party determination, and observed that since
plaintiffs and defendants seek different outcomes in court, the prevailing party
determination is different for each party:
Plaintiffs and defendants come to court with different objectives. A
plaintiff seeks a material alteration in the legal relationship between the
parties. A defendant seeks to prevent this alteration to the extent it is
in the plaintiff’s favor. The defendant, of course, might prefer a
judgment vindicating its position regarding the substantive merits of the
plaintiff’s allegations. The defendant has, however, fulfilled its
primary objective whenever the plaintiff’s challenge is rebuffed,
irrespective of the precise reason for the court’s decision. The
13
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 14 of 41
defendant may prevail even if the court’s final judgment rejects the
plaintiff’s claim for a nonmerits reason.
136 S. Ct. at 1651. CRST highlighted “the asymmetry in the parties’ litigation
objectives, which affects the showing that each party must make to achieve
prevailing-party status” and held that a defendant “prevails ‘whenever the
plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s
decision.’” Robinson v. O’Rourke, 891 F.3d 976, 982 (Fed. Cir. 2018) (quoting
CRST, 136 S. Ct. at 1651); see also B.E. Tech., L.L.C. v. Facebook, Inc., 940 F.3d
675, 679 (Fed. Cir. 2019), cert denied, 141 S. Ct. 618 (2020) (“Facebook obtained
the outcome it sought via the mootness dismissal; it rebuffed B.E.’s attempt to alter
the parties’ legal relationship in an infringement suit . . . . CRST explains that a
defendant, like Facebook, can prevail by ‘rebuffing’ plaintiff’s claim, irrespective
of the reason for the court’s decision.”). Of course, in order to confer prevailing
party status, the rejection of the plaintiff’s attempt to alter the parties’ legal
relationship “must be marked by ‘judicial imprimatur.’” CRST, 136 S. Ct. at 1646(citation omitted).
Accordingly, to determine whether the City was the prevailing party in this
case, we ask whether the district court’s judgment rebuffed Beach Blitz’s efforts to
effect a material alteration in the legal relationship between the parties. See B.E.
Tech., L.L.C., 940 F.3d at 679 (“[I]n identifying a prevailing party, we must
consider whether the district court’s decision ‘effects or rebuffs a plaintiff’s
14
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 15 of 41
attempt to effect a material alteration in the legal relationship between the
parties.’”) (citation and quotation marks omitted). Put another way, we conduct a
practical examination of whether “the case [was] resolved in the defendant’s
favor.” See CRST, 136 S. Ct. at 1652.
The district court’s order rebuffed Beach Blitz’s attempt to alter its legal
relationship with the defendants, thereby resolving the litigation in the defendants’
favor. The district court dismissed Counts I, II, III, IV, and V for failure to state a
claim. It also denied Beach Blitz the opportunity to amend Counts I, II, III, and V
since amendment would be futile. The court initially offered Beach Blitz the
opportunity to amend Count IV, but Beach Blitz failed to do so, and the court
dismissed Count IV and closed the case, denying Beach Blitz all further
opportunity to amend its pleadings.
To state the obvious, this dismissal was involuntary. The district court acted
in response to the defendants’ motion to dismiss, a motion Beach Blitz opposed.
Beach Blitz wanted the court to find that, at all times, Beach Blitz was in
compliance with the City’s laws and ordinances -- including the requirement to
obtain a BTR license. It sought a judgment finding that rules restricting the period
in which alcohol may be sold were unduly vague, unconstitutional, and
discriminatory, and that the City’s shutdown of Beach Blitz’s Ocean 9 store
constituted an unconstitutional taking and a retaliatory response to its protected
15
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 16 of 41
First Amendment conduct. But the district court refused to issue such a judgment
and dismissed Beach Blitz’s claims; it then denied leave to amend. Thus, we have
little difficulty concluding that Beach Blitz’s attempt to alter its legal relationship
with the City was “rebuffed,” CRST, 136 S. Ct. at 1651, and that the district
court’s dismissal placed the requisite judicial imprimatur on the parties’ legal
relationship. Cf. United States v. $70,670.00 in U.S. Currency, 929 F.3d 1293,
1303 (11th Cir. 2019), cert. denied sub nom. Salgado v. United States, 140 S. Ct.
2640 (2020) (holding that a dismissal as a result of a motion for voluntary
dismissal “places no judicial imprimatur on the legal relationship of the parties,
which is the touchstone of the prevailing party inquiry” (quotation marks
omitted)).
Still another indicator that Beach Blitz’s attempt to alter its legal relationship
with the City was rebuffed is the fact that the district court’s judgment dismissed
Beach Blitz’s claims on the merits in the sense that the court “pass[ed] directly on
the substance of” Beach Blitz’s claims. See Semtek Int’l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 501–02 (2001) (quoting Restatement (Second) of Judgments
§ 19, cmt. a(1980)). We know this not from a review of the district court’s
opinion, but rather because the district court issued its judgment in response to the
City’s Rule 12(b)(6) motion for failure to state a claim upon which relief could be
granted. See N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (holding
16
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 17 of 41
that a “dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) is a ‘judgment on the merits’” even where the district court does not state
whether the claims were dismissed with or without prejudice) (quoting Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)); see also 9 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2373 (4th ed. Apr.
2021 update) (stating that “dismissals under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim on which relief can be granted ordinarily are
deemed to be a merit adjudication”); Fed. R. Civ. P. 41(b) (explaining that
“[u]nless the dismissal order states otherwise,” a dismissal under 12(b)(6)
“operates as an adjudication on the merits”); Hall v. Tower Land & Inv. Co., 512
F.2d 481, 483 (5th Cir. 1975) 5 (“The trial court’s dismissal of Hall’s first
complaint under Fed. R. Civ. P. 12(b) falls directly under the wording of Rule
41(b), and cases have held that such decisions operate as adjudications on the
merits. Moreover, this Circuit has held that granting defendant’s motion to dismiss
for plaintiff’s failure to state a claim upon which relief can be granted operates as
an adjudication on the merits . . . .”) (citations omitted); Shakeri v. ADT Sec.
Servs., Inc., 816 F.3d 283, 292 (5th Cir. 2016) (same).
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
17
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 18 of 41
Contrast, for example, the $70,670.00 in U.S. Currency order permitting the
government to voluntarily dismiss its forfeiture complaint. There the court had not
issued “a ‘final judgment rejecting the government’s claim’ to the defendant
funds.” 929 F.3d at 1303 (citing CRST, 136 S. Ct. at 1651) (alterations adopted).
Not so for the order in this case. The defendants here did obtain a final judgment
rejecting each of Beach Blitz’s § 1983 claims. Accordingly, there is no question
that Beach Blitz’s claims have been fully adjudicated and rebuffed with judicial
imprimatur. Cf. id. at 1304 (party had not “substantially prevailed because the
government’s claim of superior title to her share of the funds remain[ed]
unadjudicated”). The defendants “prevented [Beach Blitz] from achieving a
material alteration of the relationship between them” by obtaining “a decision
marked by ‘judicial imprimatur,’” thereby “receiv[ing] all relief to which they
were entitled.” Raniere v. Microsoft Corp., 887 F.3d 1298, 1306–07 (Fed. Cir.
2018) (quoting CRST, 136 S. Ct. at 1646). Under the “[c]ommon sense” approach
adopted by the Supreme Court in CRST, 136 S. Ct. at 1651, the City was the
prevailing party in this lawsuit.
The only problem in this otherwise simple case arises from the district
court’s confusing handling of its judgment. On one hand, it granted a Rule
12(b)(6) motion to dismiss for failure to state a claim. As we have explained, this
posture generally signals a judgment on the merits. But on the other hand, the
18
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 19 of 41
district court dismissed Beach Blitz’s claims “without prejudice.” And this phrase
normally communicates that a dismissal is not on the merits. See Salcedo v.
Hanna, 936 F.3d 1162, 1173 n.12 (11th Cir. 2019). It is not easy to reconcile these
inconsistent features of the district court’s judgment, and they point in different
directions on the question of whether the judgment would be claim preclusive in a
future action between the same parties raising the same claims. Final merits
judgments are, as a rule, claim-preclusive, see Davila v. Delta Air Lines, Inc., 326
F.3d 1183, 1187 (11th Cir. 2003); then again, we usually understand “without
prejudice” to mean that a judgment is not claim-preclusive, see Hughes v. Lott,
350 F.3d 1157, 1161 (11th Cir. 2003). Of course, a claim-preclusive judgment
would be a further indication that Beach Blitz was fully rebuffed and that the City
prevailed. Cf. $70,670.00 in U.S. Currency, 929 F.3d at 1303 (voluntary dismissal
order did not confer prevailing party status because it “pose[d] ‘no legal bar
precluding the government from refiling the same forfeiture action in the future’”).
But we need not decide today whether the judgment dismissing this case is
claim preclusive, because even setting aside the issue of preclusive effect, we have
plenty of reasons to conclude that Beach Blitz was rebuffed. The judgment was
involuntary and carried judicial imprimatur, denied leave to amend, and resulted
from a Rule 12(b)(6) merits determination. As a matter of “[c]ommon sense,” it
plainly rebuffed Beach Blitz’s attempt to alter its legal relationship with the City
19
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 20 of 41
and “resolved [the case] in the defendant’s favor.” See CRST, 136 S. Ct. at 1651–
52; cf. B.E. Tech., L.L.C., 940 F.3d at 679 (rejecting the plaintiff’s argument that a
mootness dismissal could not confer prevailing party status because the dismissal
lacked preclusive effect and noting that this argument “put[] form over substance
and conflict[ed] with the common-sense approach outlined in CRST”). A “without
prejudice” label, without more, cannot alter our conclusion in this case: in every
practical sense, the district court rebuffed Beach Blitz’s effort to alter its legal
relationship with the City. We, therefore, leave to a future court the difficult task,
should the need arise, of reconciling the contradictory features of the district
court’s judgment in order to determine whether it has preclusive effect. We do,
however, caution district courts to make sure that the wording of each judgment
matches its content and procedural posture in order to avoid similar confusion in
other cases.
Finally, a brief word on our colleague’s conclusion that CRST set forth a
bright-line rule that a defendant prevails “whenever it secures an involuntary
dismissal” of any kind. Concurring Op. at 37. We are not so sure, but we need not
decide this matter today. Nothing in the Supreme Court’s opinion goes that far.
CRST held that a favorable ruling on the merits is not necessary for prevailing
party status and remanded for further consideration of whether the judgment at
issue in that case -- a dismissal of EEOC claims for failure to conduct statute-
20
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 21 of 41
mandated pre-suit investigations and conciliations, the preclusive effect of which
was disputed -- rendered the defendant a prevailing party. 136 S. Ct. at 1651,
1653–54. Indeed, CRST expressly “decline[d] to decide” whether “a defendant
must obtain a preclusive judgment in order to prevail.” Id. at 1653. It would be
odd indeed for the Supreme Court to have reserved that issue if it had understood
itself to be announcing a broad rule that all involuntary dismissals, some of which
will be non-preclusive, will render the defendant a prevailing party.
We need not lay down so broad a rule ourselves in order to resolve this case.
As we have explained, the involuntary Rule 12(b)(6) dismissal coupled with denial
of leave to amend clearly rebuffed with the court’s imprimatur Beach Blitz’s
attempt to alter its legal relationship with the City. To be sure, some of our sister
circuits have held after CRST that certain types of non-merits involuntary
dismissals confer prevailing party status. See B.E. Tech., L.L.C., 940 F.3d at 679
(dismissal for mootness); Raniere, 887 F.3d at 1301, 1303 (dismissal “with
prejudice” for lack of standing); In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d
1010, 1025–26 (10th Cir. 2017) (dismissal for failure to meet the False Claims
Act’s subject-matter-jurisdictional requirement that a plaintiff relying on certain
public information be the original source of the information); Amphastar Pharms.
Inc. v. Aventis Pharma SA, 856 F.3d 696, 701, 710 (9th Cir. 2017) (same type of
False Claims Act original source jurisdictional dismissal where the defendant had
21
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 22 of 41
“spent eight years, quite a bit of money, and quite a bit of energy, fighting [the]
lawsuit”).
Even if we assume these cases were correctly decided -- and we take no
position of our own on these matters -- it remains an open question whether other
types of non-merits involuntary dismissals should confer prevailing party status.
Consider, for example, certain types of involuntary dismissals that, in some cases,
may permit the plaintiff to immediately re-file the exact same claims against the
exact same defendant, albeit in an alternative forum. These may include
involuntary dismissals for lack of personal jurisdiction, pursuant to a mandatory
arbitration clause, or for forum non conveniens. It is not obvious to us whether or
not a court in such cases can truly be said to have rebuffed the plaintiff’s attempt to
alter its legal relationship with the defendant or to have resolved the litigation in
the defendant’s favor. Other courts operating after CRST have taken differing
positions on these issues. Compare Cortés-Ramos v. Sony Corp. of Am., 889 F.3d
24, 25–26 (1st Cir. 2018) (holding that a dismissal “with prejudice” compelling
arbitration did not confer prevailing party status under the Copyright Act because
the same substantive claims would be heard in an alternative forum) with Megna v.
Biocomp Lab’ys Inc., 225 F. Supp. 3d 222, 225 (S.D.N.Y. 2016) (holding that a
dismissal for lack of personal jurisdiction conferred prevailing party status); see
also Manhattan Rev. LLC v. Yun, 919 F.3d 149, 153 (2d Cir. 2019) (noting that a
22
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 23 of 41
previous decision holding that “a defendant who had obtained a dismissal on forum
non conveniens grounds was not a prevailing party because the plaintiff could
pursue his claims against the defendant in another forum” might or might not retain
“vitality . . . in the wake of CRST”). This case does not raise these questions.
Because we have little difficulty concluding that the involuntary Rule 12(b)(6)
dismissal without leave to amend in this case rendered the City a prevailing party,
we leave these issues for resolution in the future.
B.
We turn then to the second question -- the propriety of the district court’s
determination that each of Beach Blitz’s claims was “frivolous, unreasonable, or
without foundation.” This Court has said that the frivolity of a claim must be
determined on a case-by-case basis. Sullivan v. Sch. Bd. of Pinellas Cnty., 773
F.2d 1182, 1190 (11th Cir. 1985). In determining whether a suit is frivolous, “a
district court must focus on the question whether the case is so lacking in arguable
merit as to be groundless or without foundation rather than whether the claim was
ultimately successful.” Jones v. Tex. Tech Univ., 656 F.2d 1137, 1145 (5th Cir.
1981). “The fact that a plaintiff may ultimately lose his case is not in itself a
sufficient justification for the assessment of fees.” Hughes, 449 U.S. at 14. Even
if a plaintiff’s allegations are ultimately “legally insufficient to require a trial,” that
23
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 24 of 41
alone is not enough to render the plaintiff’s cause of action “groundless” or
“without foundation.” Id. at 15–16.
In Sullivan, a panel of this Court identified several factors relevant to the
determination of frivolity: “(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 or had a full-blown trial on the merits.” 773 F.2d
at 1189. “The Sullivan factors . . . are ‘general guidelines only, not hard and fast
rules.’” Cordoba, 419 F.3d at 1177 (quoting Sullivan, 773 F.2d at 1189).
In addition to the three Sullivan factors, this Court has recognized a fourth
consideration: whether there was enough support for the claim to warrant close
attention by the court. “Our circuit has held that the plaintiff’s section 1983 claims
should not be considered groundless or without foundation for the purpose of an
award of fees in favor of the defendants when the claims are meritorious enough to
receive careful attention and review.” Busby v. City of Orlando, 931 F.2d 764,
787 (11th Cir. 1991). This fourth concern is a particularly important one. Indeed,
when the plaintiff’s claim warranted close attention, we have held that a district
court abused its discretion in awarding fees, even when the other guideposts
pointed toward finding the claim frivolous. See Cordoba, 419 F.3d at 1181–82.
24
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 25 of 41
1.
For starters, we address the district court’s frivolity determination with
respect to the procedural due process claims (Counts I, II, and V). Count I of the
complaint sought declaratory and injunctive relief and asserted that the City’s
actions in failing to comply with § 102-377(b) -- which sets forth the process for
enforcement of the City Code’s BTR provisions -- and in closing Beach Blitz’s
Ocean 9 store were unconstitutional and inconsistent with due process. Count II
sought declaratory and injunctive relief and damages based upon the City’s alleged
unlawful targeting of package stores, clubs, and restaurants in the MXE district,
and specifically, the City’s alleged targeting of Beach Blitz’s Ocean 9 store. Count
V sought declaratory and injunctive relief based on vagueness grounds allegedly
inherent in § 102-377 of the City Code.
The first Sullivan factor -- whether the plaintiff has established a prima
facie case -- weighs in favor of finding frivolity because Beach Blitz’s procedural
due process claims were dismissed on the merits and without leave to amend.
Beach Blitz had failed to allege a constitutionally inadequate process. The district
court observed that “the Complaint [did] not contain a single allegation that the
state failed to provide Plaintiff with adequate process.” Further, as for Count II,
the court found that Beach Blitz failed to plead a custom or practice as required
25
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 26 of 41
under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–91
(1978).
The remaining Sullivan factors similarly weigh in favor of finding frivolity:
the City never offered to settle the procedural due process claims, and the
complaint was dismissed at the pleading stage. The fourth consideration --
whether the claims were sufficiently meritorious to receive careful attention and
review -- also weighs in favor of finding frivolity. The district court was not
required to grapple with a novel area of law, nor was there any case law supporting
the claims. Cf. Cordoba, 419 F.3d at 1181–82 (finding the district court’s award of
fees was an abuse of discretion where the plaintiff’s claims “though weak, were
not entirely ‘without foundation’” (citation omitted)); Busby, 931 F.2d at 787(“The fact that one judge on this panel disagrees over the disposition of the
directed verdict against Walsh demonstrates that this Court had to consider
Busby’s claims against him very carefully.”). Quite to the contrary, Beach Blitz’s
procedural due process claims were dismissed based on long-established
precedent.
We affirm the district court’s finding of frivolity with respect to Counts I, II,
and V.
26
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 27 of 41
2.
We reach the same result on the substantive due process claim (Count III).
As for this count, Beach Blitz asserted that it had a substantive due process right in
“retaining” its BTR license, in conducting its business through the sale of alcohol,
and in receiving income from such sales. The district court held that Beach Blitz
“failed to assert the violation of a substantive right to run its business and derive
income from its operation,” and noted that to the extent Beach Blitz asserted
arbitrary and irrational government action, by its “own admission, the Ordinance
[was] rationally based on the City’s desire to protect the health, safety, and welfare
of the City’s residents and visitors.” Beach Blitz cannot now reasonably claim that
the complaint contained sufficient factual allegations to establish a prima facie case
for a substantive due process violation. The first Sullivan factor plainly weighs in
favor of a finding of frivolity.
Furthermore, the City never offered to settle Beach Blitz’s substantive due
process claim which was dismissed at the pleading stage -- the second and third
Sullivan factors weigh in favor of a finding of frivolity. Lastly, we consider
whether the substantive due process claim was sufficiently meritorious to receive
careful attention and review. It was not. There was no support in the case law for
this claim, which was dismissed based on long-established precedent in the
Supreme Court and in this Circuit. See, e.g., Coll. Sav. Bank v. Fla. Prepaid
27
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 28 of 41
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675(1999) (holding there is no
fundamental property right in “the activity of doing business, or the activity of
making a profit”) (emphasis omitted); McKinney v. Pate, 20 F.3d 1550, 1556 (11th
Cir. 1994) (en banc) (noting that a property interest created by state law does not
receive the protection of substantive due process).
Beach Blitz’s substantive due process claim was frivolous.
3.
Finally, we address Beach Blitz’s First Amendment retaliation claim (Count
IV), which was, like the other claims, dismissed without prejudice but unlike the
others, with leave to amend. In Count IV, Beach Blitz claimed that it engaged in
conduct protected by the First Amendment when its attorney met with deputy city
attorney Aleksandr Boksner to lobby the City against a proposed ordinance that
would bar it from selling liquor after 8 p.m. The complaint stated, “[i]n response
to Plaintiff’s speech, on the very next day [after Beach Blitz’s attorney met with
Boksner] . . . officers ordered the immediate closing of Plaintiff’s store.” Beach
Blitz further alleged that shortly after officers closed Beach Blitz’s store, Boksner
told Beach Blitz’s attorney that the City’s recent actions -- which can be
reasonably understood as the City’s closure of the store -- were “not likely
coincidental and a long time coming.” The district court concluded that Beach
Blitz failed to allege sufficient facts to state a claim for retaliation. It determined
28
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 29 of 41
that because Beach Blitz was operating its store without a valid BTR at the time of
the store’s closure, and had been cited for operating the store without a valid BTR
three months earlier, the complaint failed to allege sufficient facts to show that
Beach Blitz’s “protected conduct was the ‘motivating factor behind the defendants’
actions.’”
For the same reasons we applied to Beach Blitz’s procedural and substantive
due process claims, the three Sullivan factors also weigh in favor of a finding of
frivolity. As for the first one, the district court held that Beach Blitz failed to state
a First Amendment retaliation claim, Beach Blitz did not appeal the dismissal, and
it cannot now argue that the court erred in granting the motion to dismiss. As for
the second one, the City did not offer to settle this claim, and as to the third factor,
the claim was dismissed at the pleading stage.
The last consideration -- whether Count IV was sufficiently meritorious to
receive careful attention and review -- is a different question. Cf. Cordoba, 419
F.3d at 1181–83 (holding that the district court’s frivolity determination was an
abuse of discretion even regarding claims that “were weak” and a theory that “was
close” to being frivolous). There was sufficient support in our prior caselaw for
Beach Blitz’s position that its retaliation claim was not so groundless on causation
29
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 30 of 41
as to be frivolous. See Bailey v. Wheeler, 843 F.3d 473 (11th Cir. 2016); Thomas
v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989).
In Bailey, a city police officer was fired after he reported that officers in
both the city police department and the county sheriff’s department were engaged
in racial profiling. 843 F.3d at 477. Bailey appealed his termination, arguing that
it was the result of speaking out against racial profiling. Id. at 478–79. Two
deputies with the county sheriff’s department followed Bailey as he drove home
the night after a hearing on his appeal, and the next day, Major Wheeler of the
sheriff’s department issued a countywide, be-on-the-lookout (“BOLO”) advisory
with Bailey’s picture, warning that Bailey was a “loose cannon” who “presented a
danger to any law-enforcement officer.” Id. (alteration adopted) (quotation marks
omitted). Bailey was reinstated a few weeks later, and upon his return to work, the
police chief informed Bailey that he could contact the sheriff’s office to have the
BOLO cancelled. Id.
Bailey sued Wheeler claiming First Amendment retaliation. The district
court denied Wheeler’s motion to dismiss based on qualified immunity. Wheeler
appealed, arguing that Bailey failed to sufficiently allege a wrongful retaliation
since there was no basis for the inference that Wheeler issued the BOLO in
retaliation for Bailey’s complaints when Bailey failed to allege that anyone at the
sheriff’s office was aware of the complaints. Id. at 482. We held that Bailey’s
30
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 31 of 41
allegations supported an inference that Wheeler issued the BOLO in retaliation
given the close temporal relation between the hearing and the issuance of the
BOLO. Id. at 483. Further, the allegation that the chief of police told Bailey he
could have the BOLO cancelled by contacting the sheriff’s office supported an
inference that the officers in the police department had been in communication
with the sheriff’s department about Bailey and the BOLO. Id. We, therefore, held
that Bailey adequately alleged causation, and we affirmed the denial of Wheeler’s
motion to dismiss. Id. at 486.
In Thomas, prison officials searched and ransacked the cell of a Georgia
prisoner and confiscated the inmate’s legal documents and reference materials.
880 F.2d at 1237. Just a few days earlier, the prisoner had been awarded monetary
damages in a civil rights action against prison officials, and following the prison
officials’ actions, the prisoner filed a second lawsuit claiming that his legal
materials were confiscated in retaliation for bringing the first lawsuit. Id. at 1237–
38. The district court dismissed the action as a Rule 11 sanction, finding no
reasonable basis for the First Amendment retaliation claim. Id. at 1239. We held
that the district court abused its discretion and explained that the prisoner
established a basis for his retaliation claim because his “legal materials were
confiscated only a few days after the verdict” was rendered. Id. at 1242.
31
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 32 of 41
Similar to the plaintiffs in both Bailey and Thomas, Beach Blitz alleged a
close temporal relation between its protected conduct and the challenged action --
here, just one day passed between Beach Blitz’s speech and its store being shut
down. Moreover, the deputy city attorney told Beach Blitz’s counsel just a few
days following their meeting that the closure of Ocean 9 was not a coincidence and
was a long time coming. The chain of events with the deputy city attorney
supports an inference that the deputy city attorney had been in contact with the
officials issuing the closure order.
The district court abused its discretion in finding Count IV frivolous. See
Cordoba, 419 F.3d at 1185 (holding that a claim “built . . . from language in our
own opinions” was not frivolous). When viewed in light of our precedent, Beach
Blitz’s First Amendment retaliation claim was not wholly without foundation. It
was not unreasonable for Beach Blitz to believe that the City shut down its store as
a response to Beach Blitz’s protected First Amendment conduct. The claim, while
properly rejected by the district court, was not frivolous.
III.
In sum, we conclude that the district court did not err in finding the City to
be the prevailing party for all of the claims, nor did it abuse its discretion in
concluding that Counts I, II, III, and V were frivolous and, therefore, that the City
was entitled to attorney’s fees as to those counts. The district court did abuse its
32
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 33 of 41
discretion, however, by finding Count IV frivolous and subsequently awarding
attorney’s fees for that claim too -- the City was not entitled to attorney’s fees for a
non-frivolous claim. Because the records themselves do not reveal the portion of
the fees attributable solely to defending against Count IV, and because neither the
district court nor the City teased out the legal fees incurred in defending Count IV
from those incurred in defending Counts I, II, III, and V, we cannot determine the
proper fee award. Accordingly, we affirm in part, vacate in part, and remand to the
district court to recalculate the fee award. See Head v. Medford, 62 F.3d 351, 356
(11th Cir. 1995) (instructing district court on remand to calculate attorney’s fees
only for work “realistically attributable solely and exclusively to the plaintiff’s”
frivolous claim). On remand, the district court should determine what portion of
the fees incurred is fairly attributable to defending against Counts I, II, III, and V,
and to the extent the fees attributable to Count IV can be discerned, the ultimate
fee award should not include any legal fees incurred in defending on Count IV.
We recognize that the City has challenged the nature and extent of the
district court’s analysis relating to the amount of attorney’s fees due and owing.
Because, however, we must remand to the district court to determine the proper
amount of fees, we make no judgment as to the district court’s prior fee analysis.
We simply note that in calculating fees, the district court must conduct either an
hour-by-hour analysis or apply an across-the-board reduction of the requested
33
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 34 of 41
compensable hours -- it would be error for the court to apply both methods. See
Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
34
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 35 of 41
NEWSOM, Circuit Judge, concurring in part and concurring in the judgment:
As I understand the majority opinion, it uses a mix of reasons to explain why
the City was a “prevailing party” eligible for an award of attorneys’ fees. First, the
majority concludes that the City prevailed because it secured an involuntary
dismissal. See Maj. Op. at 14–16. Based on the Supreme Court’s decision in
CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642 (2016), I agree that the
district court’s dismissal order itself—of its own force—rendered the City a
prevailing party. Second, the majority points to what it calls “[s]till another
indicator” of the City’s prevailing-party status: “the fact that the district court’s
judgment dismissed Beach Blitz’s claims on the merits.” See Maj. Op. at 17–20
(emphasis added). I’m not sure that’s wrong, but I find the district court’s decision
here—which dismissed Beach Blitz’s claims for failure to state a claim under Rule
12(b)(6) but did so, expressly, “without prejudice”—sufficiently confusing that I
would avoid reliance on an “on the merits” criterion. Accordingly, I must concur
in only the judgment as to Part II.A of today’s opinion.
I
The majority and I agree about what happened here. Beach Blitz sued the
City of Miami Beach under 42 U.S.C. § 1983. The district court dismissed all of
Beach Blitz’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. Then, although a dismissal for failure to state a claim should (absent
35
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 36 of 41
conditions not present here) be “with prejudice,” the district court—for reasons
unexplained—dismissed all of Beach Blitz’s claims “without prejudice.” Here’s
the judgment line from the final dismissal order:
After securing the “without prejudice” dismissal, the City sought attorneys’
fees on the ground that it was a “prevailing party” within the meaning of 42 U.S.C.
§ 1988(b). The district court awarded the City fees, and Beach Blitz appealed,
contending that the without-prejudice dismissal deprived the City of prevailing-
party status.
II
A
The majority concludes, first and foremost, that the City was a “prevailing
party” because it secured an involuntary dismissal. See Maj. Op. at 15–17. That
seems exactly right to me. As the majority explains, in CRST, the Supreme Court
held that a defendant has “fulfilled its primary objective,” and is thus a prevailing
party, “whenever the plaintiff’s challenge is rebuffed, irrespective of the precise
36
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 37 of 41
reason for the court’s decision.” 136 S. Ct. at 1651.1 That makes sense, in both
formal and practical terms.
As a formal matter, although some wins are bigger than others, to be sure, a
defendant “prevail[s]” whenever it secures an involuntary dismissal. Even a
dismissal on jurisdictional grounds, for instance, confers on the defendant a narrow
legal right against having to re-litigate the exact same issue in the exact same court.
See, e.g., Acree v. Air Line Pilots Ass’n, 390 F.2d 199, 202–03 (5th Cir. 1968)
(holding that although a jurisdictional decision isn’t binding on all matters that
could have been litigated, it is “conclusive as to matters actually adjudged”);
Charles Alan Wright & Arthur Miller, 18A Federal Practice & Procedure § 4435
n.7 (4th ed.) (“A dismissal for lack of subject-matter jurisdiction . . . does not
preclude a second action on the same claim in a court that does have subject-matter
jurisdiction, but does preclude relitigation of the question whether the first court
had subject-matter jurisdiction.”).
So too, the Court in CRST justified its irrespective-of-the-merits criterion on
practical grounds. It explained, for instance, that even when a case is dismissed for
a non-merits reason—including lack of jurisdiction—“significant attorney time and
expenditure may have gone into contesting the claim.” Id. at 1653. Accordingly,
1
CRST involved a different fee-shifting statute, but that provision used the identical term
“prevailing party,” and “it has been the Court's approach to interpret the term in a consistent
manner.” 136 S. Ct. at 1646.
37
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 38 of 41
the Court observed, the defendant should be eligible for a fee award even in those
circumstances: “Congress could not have intended to bar defendants from
obtaining attorney’s fees in these cases on the basis that, although the litigation
was resolved in their favor, they were nonetheless not prevailing parties.” Id.I would simply take the Supreme Court at its word—that a defendant
“prevail[s]” for attorneys’-fees purposes “whenever the plaintiff’s challenge is
rebuffed, irrespective of the precise reason for the court’s decision,” id. at 1651—
and stop there.
B
The majority goes on to emphasize what it calls “[s]till another indicator” of
the City’s prevailing-party status—namely, it says, that the district court dismissed
Beach Blitz’s claims “on the merits.” Maj. Op. at 17. Because I would steer clear
of the on-the-merits briar patch, I can’t join that part of the majority’s opinion.
I would steer clear for two reasons. First, just as a general matter, the phrase
“on the merits” is notoriously slippery. Professors Wright and Miller have called it
“unfortunate.” Wright & Miller, supra, § 4435. The Supreme Court has struggled
mightily to define it. See Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S.
497, 502–03 (2001). And the authors of the Restatement have abandoned it
altogether “because of its possibly misleading connotations.” Restatement
(Second) of Judgments § 19 cmt. a (1982). It’s just not the sort of concept that I’m
38
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 39 of 41
enthusiastic about weaving into the fabric of a prevailing-party determination—at
least where, as here, I don’t have to.
Second, there is the oddity of this case—namely, the uncomfortable fact that
the district court dismissed Beach Blitz’s claims for failure to state a claim under
Rule 12(b)(6), but did so, expressly, “without prejudice.” The majority calls that a
“problem.” Maj. Op. at 19. I think it’s more than that, because I think the district
court’s decretal language—“ORDERED AND ADJUDGED that this case is
DISMISSED WITHOUT PREJUDICE”—is more than what the majority calls a
“label.” Id. at 20. Whether we like it or not, those words—including the “without
prejudice” part—constitute the district court’s judgment. And that judgment
matters. Although courts typically explain their legal reasoning in opinions, they
“reduce their opinions . . . to judgments precisely to define the rights and liabilities
of the parties.” Jennings v. Stephens, 135 S. Ct. 793, 799 (2015). “If there be any
one thing done in the progress of a cause, from its commencement to its
conclusion, that is peculiarly and emphatically a judicial act, it is the rendition of
judgment.” 1 Henry C. Black, A Treatise on the Law of Judgments § 106, at 150
n.1 (2d ed. 1902). “The decree,” i.e., the judgment, “is the dominant act.” Baxter
v. Buchholz-Hill Transp. Co., 227 U.S. 637, 638 (1913). So in a contest between,
on the one hand, an opinion that to all appearances seems to be an adjudication “on
39
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 40 of 41
the merits” and, on the other, a judgment dismissing the case “without prejudice,”
the latter must prevail.
Here, for me, is the capper: In attempting to interpret the phrase “on the
merits” as used in Federal Rule of Civil Procedure 41—which, among other things,
the majority here invokes for its on-the-merits criterion—the Supreme Court in
Semtek settled on the following understanding: “[A]n ‘adjudication [on] the
merits’ is the opposite of a ‘dismissal without prejudice.’” 531 U.S. at 505(quoting Fed. R. Civ. P. 41) (emphasis added). That, to me, seems like a red flag.
If a “without prejudice” dismissal—which is indisputably what we have here—is
the opposite of an “on the merits” dismissal, then I just can’t bring myself to say
that the merits-ness of the district court’s decision should contribute in any way to
the City’s prevailing-party status.
Happily, in order to agree with the Court’s resolution of this case, I don’t
have to.
III
I would begin and end with what the Supreme Court said in CRST: A
defendant “fulfill[s] its primary objective,” and thus becomes a prevailing party,
“whenever the plaintiff’s challenge is rebuffed, irrespective of the precise reason
for the court’s decision.” 136 S. Ct. at 1651. Given the clarity of that statement, I
see no need to search for “another indicator” of the City’s prevailing-party status.
40
USCA11 Case: 19-11380 Date Filed: 09/21/2021 Page: 41 of 41
And I fear that the one the majority chooses—“on the merits”—is uniquely
fraught. Accordingly, although I join the balance of the majority opinion, as to
Part II.A, I concur in only the judgment.
41