United States Court of Appeals For the First Circuit

No. 19-2099

DAVID EFRON,

Plaintiff, Appellant,

v.

MORA DEVELOPMENT CORPORATION ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Thompson, Circuit Judges.

Etienne Totti del Toro and Law Offices of David Efron, P.C. on brief for appellant. Luis Sánchez Betances, Jorge L. Flores de Jesús, and Sánchez- Betances, Sifre & Muñoz-Noya LLC on brief for appellees.

August 11, 2022 SELYA, Circuit Judge. To use a by-now-familiar phrase,

this appeal — which involves an award of attorneys' fees under

— is "déjà vu all over again."1 The underlying case

centers on a parcel of real property in Carolina, Puerto Rico,

formerly owned by plaintiff-appellant David Efron. The defendants

include the Puerto Rico Highway and Transportation Authority

(PRHTA), a governmental entity, and Mora Development Corporation

(Mora), a private firm. We last visited this matter in 2012, see

Efron v. Mora Dev. Corp. (Efron I),

(1st Cir. 2012),

and we borrow liberally from our opinion there in order to set the

stage for the present appeal.

In November 2004, PRHTA filed a petition to condemn Efron's property in the Court of First Instance of the Commonwealth of Puerto Rico, along with a deposit of proposed compensation. Efron's motion to dismiss the condemnation proceeding was itself dismissed by the Commonwealth court, which ordered the transfer of ownership and possession to PRHTA.

Efron then filed suit under

against Mora, its president Cleofe Rubi, PRHTA, and PRHTA employees Jack Allison and Paquito Rivera, alleging that the defendants had conspired to deprive him of his property without just compensation or due process of law. He also invoked the district court's supplemental jurisdiction to hear a

1 This epigram is often attributed to Lawrence P. (Yogi) Berra. Berra coined many aphorisms — but not this one. See Ralph Keyes, "Nice Guys Finish Seventh": False Phrases, Spurious Sayings, and Familiar Misquotations 152 (1992) (noting that "although this is commonly cited as a 'Berra-ism,' Yogi Berra denies ever saying it"). The phrase's origin is unknown.

- 2 - tort claim under Commonwealth law for unlawful deprivation of the use and quiet enjoyment of property.

Mora and the other defendants moved for summary judgment for Efron's failure to seek just compensation in the courts of Puerto Rico before raising his federal takings claim. The district court granted the motion in accordance with the rule of SFW Arecibo Ltd. v. Rodríguez,

(1st Cir. 2005), that a plaintiff has no federal Fifth Amendment claim for a taking under Puerto Rico law without first availing himself of the Commonwealth's process for seeking just compensation. See Deniz v. Municipality of Guaynabo,

(1st Cir. 2002) ("The plaintiff's failure to seek recompense through Puerto Rico's inverse condemnation remedy renders both [a plaintiff's] takings and substantive due process claims unripe for federal adjudication."); see also Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City,

(1985) ("[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."). The supplemental claim was dismissed without prejudice, and Efron refiled it in a court of Puerto Rico.

After obtaining judgment, Mora filed a Bill of Costs under Fed. R. Civ. P. 54(d)(1) and a Motion for Attorneys' Fees under

, and it is from an award of $92,149 in fees for work on discovery, pleadings, and motions that Efron appeals . . . .

. . . .

- 3 - In this case, the district court adopted the magistrate judge's finding that Efron's federal claim was indeed frivolous, unreasonable, and unfounded, although it drew no such conclusion about the supplemental tort claim dismissed without prejudice, which is consequently to be treated as non-frivolous. See [Fox v. Vice,

(2011)]. Given the mixture, the § 1988 fee award must be restricted to work attributable to dismissal of the frivolous federal claim, the analytical basis for apportionment being governed by equitable considerations under . . . Fox v. Vice, id. at [836], [which] allows an award only of fees the prevailing defendant would not have paid but for the frivolous claim. Id. And while there will still be difficult issues of separability after Fox, id. at [834-35], this case does not appear to present one, given the discrete legal basis of the dismissal.

Efron I,

(first and second alterations in

original). In line with this reasoning, we vacated the district

court's judgment and remanded for reconsideration of the fee award.

See

.

On remand, the district court ordered the parties to

brief what fees were appropriate for work performed to dismiss the

federal claim. After reviewing the parties' submissions, the court

rejected in toto the request for attorneys' fees related to

discovery. The court concluded that "[h]ad Defendants filed a

motion to dismiss early in the litigation, the case would have

been dismissed prior to the commencement of discovery and the

Parties would not have incurred in the expenses associated with

- 4 - the discovery process." This ruling has not been challenged on

appeal.

The district court then deemed "the sum of the number of

hours spent on drafting the answer and the summary judgment

briefing as a proxy for the hours that would have been expended in

the drafting of a motion to dismiss." From that sum, the court

"discount[ed] the time spent on statements of uncontested facts or

responses thereto . . . as well as any duplicative or excessive

hours."

After "reviewing each entry in the time sheet submitted,

the [c]ourt" determined that 128.2 hours were reasonably spent in

defending against the frivolous federal claim. Applying a series

of hourly rates that it had previously found to be reasonable, the

court ordered the payment of fees in the amount of $20,243.25.

This award was composed of 97.2 hours at $185 per hour, 5.5 hours

at $140 per hour, 5.5 hours at $65 per hour, 6.75 hours at $60 per

hour, and 13.25 hours at $55 per hour. Efron's timely appeal

followed.

"We review a challenge to an award of attorneys' fees

for abuse of discretion." Pérez-Sosa v. Garland,

(1st Cir. 2022); see Gay Officers Action League v. Puerto Rico

(GOAL),

(1st Cir. 2001). "[A] material error of

law is perforce an abuse of discretion." Pérez-Sosa,

. Absent such an error, "we will set aside a fee award only if

- 5 - it clearly appears that the trial court ignored a factor deserving

significant weight, relied upon an improper factor, or evaluated

all the proper factors (and no improper ones), but made a serious

mistake in weighing them." GOAL,

.

Efron advances a general challenge to the fee award. "A

common way of determining a reasonable fee is through the lodestar

method." Pérez-Sosa,

; see Perdue v. Kenny A. ex

rel. Winn,

(2010). "The lodestar amount equals

'the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.'" Pérez-Sosa,

(quoting Hensley v. Eckerhart,

(1983)). In

this instance, Efron has not challenged — either in the district

court or in this court — the rates approved by the district court.

We therefore treat those rates as reasonable and focus the lens of

our inquiry on the time expended by defense counsel.

Efron mounts three specific challenges, all of which

implicate the time expended. He first argues that the district

court abused its discretion by failing to explain in sufficient

detail its fee award. The premise on which this argument rests is

unimpugnable: "[t]o allow for 'meaningful appellate review,' the

district court must provide a 'clear explanation of its reasons

for the fee award.'" Wennik v. Polygram Grp. Distrib.,

(1st Cir. 2002) (quoting Grendel's Den, Inc. v. Larkin,

(1st Cir. 1984)). "Conclusory statements

- 6 - concerning reasonableness are insufficient to withstand appellate

review." Grendel's Den,

.

Withal, the conclusion that Efron draws from this

premise is unfounded. In its decision, the district court stated

that it was going to "determine the reasonable amount of attorney's

fees attributable to the dismissal of the federal claim." (emphasis

in original). Because the court agreed with the defendants that

"[t]he federal complaint was absolutely hopeless from the outset,"

the court opted to employ a proxy for determining the fees that

the defendants would have incurred had they filed a motion to

dismiss before discovery. The court clearly identified its proxy

and provided a table laying out the hourly rates that it deemed

reasonable and the number of hours awarded at each rate. The

totality of the district court's explanation is easily understood

and sufficient to allow for meaningful appellate review. No more

is exigible. See Bogan v. City of Boston,

(1st

Cir. 2007); Wennik,

.

Efron's next argument is easily dispatched. He suggests

that the amount awarded was unreasonable because the district court

should have limited the fees "to the discre[te] facts and legal

basis that resulted in dismissal." In other words, the defendants

should only have been awarded attorneys' fees for work performed

on the precise ground (non-exhaustion) that resulted in dismissal.

- 7 - This suggestion is simply incorrect. Fox is pellucid

that a prevailing defendant may be awarded attorneys' fees for

work performed on the frivolous claim. See

.

The Court made no distinctions based on the particular ground that

led to the dismissal of the frivolous claim.

Efron further argues that the district court abused its

discretion by awarding attorneys' fees for 128.2 hours. The number

of hours awarded, he says, is excessive. The background principle

is that section 1988 authorizes a district court to award

reasonable attorneys' fees to the prevailing party in suits brought

under section 1983. See

(b); see also Fox,

; Efron I,

. For a prevailing defendant

to obtain attorneys' fees under section 1988, though, the defendant

must persuade the district court "that the plaintiff's action was

frivolous, unreasonable, or without foundation." Efron I,

(quoting Christiansburg Garment Co. v. EEOC,

(1978)). The district court determined that Efron's

federal claim was frivolous, and Efron does not challenge that

determination.

But even when a claim is frivolous, a prevailing

defendant is not necessarily entitled to recover all fees and

expenses associated with its defense. See Fox,

-

35. As the Supreme Court has stated, "litigation is [] complex,

involving multiple claims for relief that implicate a mix of legal

- 8 - theories and have different merits. Some claims succeed; others

fail. Some charges are frivolous; others (even if not ultimately

successful) have a reasonable basis."

. Recognizing

this reality, "[s]ection 1988 permits the [prevailing] defendant

to receive only the portion of his fees that he would not have

paid but for the frivolous claim."

. Put another way,

"if the [prevailing] defendant would have incurred those fees

anyway, to defend against non-frivolous claims, then a court has

no basis for transferring the expense to the plaintiff."

(emphasis in original).

In Efron I, we applied these tenets. We held "that fees

are recoverable only for work that would have been unnecessary but

for the frivolous constitutional takings claim."

.

Relatedly, we decreed that the supplemental Puerto Rico tort claim,

which was dismissed without prejudice, was "to be treated as non-

frivolous."

. Our remand instructed the district court

to perform the necessary triage. See

.

Where, as here, counsel presents sufficiently detailed

time sheets for the district court's review, the court has wide

discretion in determining the number of hours reasonably expended.

See Pérez-Sosa,

(noting "district court's [broad]

discretion in separating wheat from chaff" (quoting Torres-Rivera

v. O'Neill-Cancel,

(1st Cir. 2008))). The court

below did not accept the defendant's proffer at face value but,

- 9 - rather, screened out time that it deemed to be "excessive" or

"duplicative." It then found the remaining time expended to be

reasonable. Efron has not specifically identified hours that he

claims should have been dropped.

Nor was the use of a proxy outside the margins of the

court's discretion. District courts are permitted to "use

estimates in calculating and allocating an attorney's time." Fox,

; see

(explaining that "trial courts need not,

and indeed should not, become green-eyeshade accountants"). "The

essential goal in shifting fees . . . is to do rough justice, not

to achieve auditing perfection."

The concept of using the

number of hours expended on an answer and motion for summary

judgment as a proxy for the number of hours that would have been

expended in connection with a motion to dismiss may — in

appropriate circumstances — be a useful tool within the district

court's toolbox when determining reasonable attorneys' fees.

Of course, the fact that the use of a proxy may be

conceptually appropriate does not mean that the use of a proxy was

appropriate in the circumstances at hand. Here, the matter is

complicated because only one of Efron's claims was frivolous; the

other was not. And it is readily apparent from a review of the

papers that a portion of the motion for summary judgment and the

memorandum of law in support of that motion dealt with matters

that were not directly related to the frivolous claim.

- 10 - It was inappropriate — and contrary to the explicit

instructions limned in Efron I,

— to include those

hours in the fee award without any explanation of why they

satisfied the Fox criteria. Yet, the district court — so far as

we can tell — made no adjustment to take account of this important

fact. Nor did the court make any findings sufficient to bring

those hours within the orbit of the frivolous federal claim. The

primary problem is that the district court failed to "ask[] and

answer[]" the right question. Fox,

. The court —

in its own words — set out to "determine the reasonable amount of

attorney's fees attributable to the dismissal of the federal

claim." (emphasis in original). The question, though, was what

fees were reasonable "for work that would have been unnecessary

but for the frivolous . . . claim." Efron I,

. The

court, therefore, abused its discretion when it included in its

decisional calculus an improper factor: hours for work performed

on a non-frivolous claim without any explanation of why those hours

could nonetheless be included in the fee award. Cf. GOAL,

(explaining that district court abuses its

discretion by including improper factor in decisional calculus).

At this juncture, we ordinarily would vacate the fee

award and remand to the district court for further proceedings.

See In re Thirteen Appeals Arising Out of San Juan Dupont Plaza

Hotel Fire Litig.,

(1st Cir. 1995) (explaining

- 11 - that "[o]rdinarily, 'an improper calculation of attorneys' fees

necessitates remand for reconfiguration of the award'" (quoting

Lipsett v. Blanco,

(1st Cir. 1992))). Even so,

the tail should not be permitted to wag the dog. The portion of

the summary judgment motion and accompanying memorandum that dealt

with the non-frivolous claim is not much: five pages out of forty.

Nor are the circumstances of this case ordinary: the event that

gave rise to this litigation (the alleged taking) occurred in 2004;

summary judgment entered in 2008; the motion for fees followed;

the district court handed down a fee award in 2011; and this court

vacated the fee award and remanded for the recalculation of fees

a decade ago. Given the passage of so much time and the relatively

modest amount of fees at issue, "[t]his litigation has passed the

point of diminishing returns."

In such straitened circumstances, we have sometimes

"grasped the bull by the horns and fixed the fees ourselves." Id.;

accord Brewster v. Dukakis,

(1st Cir. 1993); Jacobs

v. Mancuso,

(1st Cir. 1987); Grendel's Den,

. This is an appropriate case for such a course of

action: as the Court has admonished, "[a] request for attorney's

fees should not result in a second major litigation." Hensley,

.

The only defect that we have identified in the district

court's fee award — given that Efron has failed to challenge any

- 12 - other specific hours that he claims were erroneously included in

the award calculation — relates to the relatively modest amount of

time expended in connection with the non-frivolous supplemental

claim. We assume, for simplicity's sake, that those hours should

have been deducted from the fee award.2 We estimate — with some

generosity toward Efron — that those hours accounted for ten

percent of the total fee award. To effect that deduction, we

vacate the existing fee award and remand to the district court

with instructions to enter a modified fee award in the amount of

$18,218.93. Two-thirds costs shall be taxed in favor of the

appellees.

So Ordered.

2 We neither hold nor suggest that the time attributable to a non-frivolous claim should always be excluded from a fee award. Fox permits awarding fees for work performed on a non-frivolous claim when the non-frivolous claim is in federal court only because of the frivolous federal claim.

. In such circumstances — and given an adequate explanation — the Court's but-for test "would permit awarding fees for work relevant to both claims in order to reflect the increased costs (if any) of the federal forum."

.

- 13 -