Janet Velez v. Levy World Limited Partnership , 182 F. App'x 929 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-11395 ELEVENTH CIRCUIT
MAY 26, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00878-CV-OR-22DAB
JANET VELEZ,
LOURDES QUEZADA,
JENNY SORIA,
MADELINE RIVAS,
NIKESHA WINFIELD,
DIANE HEARD,
KEANNA HAMPTON-ALLEN,
Plaintiffs-Appellants,
versus
LEVY WORLD LIMITED PARTNERSHIP,
d.b.a. Fulton’s Crab House,
Defendant-Appellee.
----------------------------------------------------------------
Appeal from the United States District Court
for the Middle District of Florida
----------------------------------------------------------------
(May 26, 2006)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Plaintiffs Velez et al. appeal the district court’s grant of summary judgment
to Defendant Levy World Limited Partnership, owner of Fulton’s Crab House, on
Plaintiffs’ claims of racial discrimination under 42 U.S.C. §§ 1981, 1982, and
2000a, the court’s dismissal of Plaintiffs’ state law claims of discrimination, and
the court’s award of costs, under 28 U.S.C. § 1920, to Defendants. No reversible
error has been shown; we affirm.
On 29 March 2003, a Friday night, Plaintiffs, seven members of a group of
five Hispanics and four African-Americans, went to Fulton’s Crab House for
dinner. They arrived between 9:00 pm and 9:30 pm. The hostess informed
Plaintiffs that there would be an hour wait for dining room seating, but if Plaintiffs
could find open seating in the lounge area, they probably would not have to wait
as long. Plaintiffs chose to go to the lounge.
As Plaintiffs entered the lounge, they saw a group of eight1 Caucasian
patrons get up from a table and leave the lounge. Plaintiffs claimed their table.
Plaintiffs did not notice any other racial minorities or parties of a size similar to
their own seated in the lounge area.
1
One Plaintiff testified that this party consisted of about eight patrons, but was not definite about
the number. For this analysis, we assume there were eight people.
2
Only one server, a Caucasian man named Jeff Verberg, was attending to the
lounge area. Plaintiffs observed Verberg serving other patrons in the lounge area,
but he did not come to Plaintiffs’ table to bring them menus or take their orders.
After waiting around fifteen to thirty minutes, one Plaintiff left the table to learn
who their server was; she learned it was Verberg. After waiting about another
fifteen to thirty minutes, a Plaintiff left the table and returned with a busboy, who
said that he would find a waiter or manager to come to Plaintiffs’ table. After
waiting about fifteen to thirty more minutes, a Plaintiff left the table to find the
manager on duty.
Another server, Christopher Chalange, told Plaintiffs he would serve their
table, apologized for the wait, and took Plaintiffs’ drink orders. Chalange returned
with Plaintiffs’ drinks and the manager on duty. The manager apologized for the
wait, told Plaintiffs their first round of drinks was free, and said that someone
would take their dinner orders soon.
Plaintiffs say they waited between two and three hours at the restaurant,
never placed a dinner order, and finally left the restaurant. Plaintiffs say that they
left the restaurant because no one brought them menus and that Chalange
suggested alternate, more affordable, restaurants for Plaintiffs to go to. Defendant
claims that the waiter returned to Plaintiffs’ table; but before he could take their
3
dinner orders, Plaintiffs informed him they had decided not to dine at the
restaurant.
Discrimination Claims
We review de novo a district court’s grant of summary judgment, viewing
all evidence and making all reasonable inferences in the light most favorable to the
nonmoving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir.
1999).
The district court granted summary judgment to Defendants because the
Plaintiffs could not identify a similarly situated group of Caucasian patrons who
were treated better than Plaintiffs. Thus, Plaintiffs did not establish a prima facie
case of accommodations discrimination. We agree.
Plaintiffs argue that the group of eight Caucasians Plaintiffs saw leaving the
lounge was a similarly situated group and that because restaurants usually serve
people promptly and because Fulton’s prided itself on “excellent customer
service,” this Court should infer that the group of eight was served promptly. But
Plaintiffs only saw this group leaving and thus present no evidence that the group
was served in a timely fashion. Although we view all reasonable inferences in the
light most favorable to Plaintiffs, given the lack of any evidence about the earlier
4
Caucasian group’s service, we cannot make an inference about how promptly the
group was served. Therefore, Plaintiffs do not establish this earlier group of
Caucasian patrons was a similarly situated group that received better treatment.
The district court properly found that Plaintiffs had failed to establish a prima
facie case of public accommodations discrimination.
The district court dismissed the state claims for lack of subject matter
jurisdiction, based on Plaintiffs’ earlier election of an administrative hearing. See
Fla. Stat. 760.11(4) (saying civil rights claimant’s “exclusive remedy” is the
election of either an administrative hearing or a civil action). We find it
unnecessary to discuss whether or not the district court had subject matter
jurisdiction because Plaintiffs’ failure to establish a prima facie federal case of
public accommodations discrimination also applies to their state-law claims under
Fla. Stat. §§ 509.092, 760.11. See Stevens v. Steak n Shake, Inc., 35 F.Supp.2d
882 (M.D. Fla. 1998) (applying elements of federal Title VII claim to claim under
Fla. Stat. § 509.092); The Florida State Univ. v. Sondel, 685 So.2d 923, 925 n.1
(Fla. Dist. Ct. App. 1996) (saying the Florida Civil Rights Act was patterned after
Title VII and federal case law interpreting Title VII is applicable to cases arising
under the Florida Act). Because Plaintiffs’ failed to present a prima facie case of
5
public accommodations discrimination, we affirm the district court’s dismissal of
the state claims.
Costs
We review for abuse of discretion a district court’s decision to award costs.
Mutual Service Ins. Co. v. Frit Industries, Inc., 358 F.3d 1312, 1326 (11th Cir.
2004). Plaintiffs argue that Defendants should not recover costs for court reporter
fees and copies because Defendants did not present itemized invoices of their
expenses.
The magistrate determined that, although invoices would have been
preferable to establish for what the amounts charged for the court reporter’s
services were used, it was sufficient that the “Declaration on the Bill of Costs
submitted includes a statement by counsel, under penalty of perjury, that the costs
are correct and that services charged are properly taxable.” The district court did
not abuse its discretion in adopting this recommendation.
Plaintiffs object to the $1,500.00 in copying costs the district court awarded
Defendants because Defendants did not submit invoices of what was copied and
how many copies were made. Defendants claimed that over nineteen thousand
6
copies were made for this case, and Plaintiffs objected before the Magistrate that
this number was excessive and unsupported. The Magistrate determined that
nineteen thousand copies was excessive because that number included multiple
copies made for the client; therefore, the Magistrate recommended that the costs
award be reduced from the $2,945.23 Defendants requested to $1,500.00 to cover
the copies the Magistrate determined were necessary for this case. Plaintiffs’
claim that the reduced award is excessive because the factual foundation of the
case was not complicated and did not involve “medical records, employment
records and/or other documents requested from third parties” does not demonstrate
that the district court abused its discretion in adopting this recommendation.
AFFIRMED.
7