John M. Floyd & Associates, Inc. v. First Florida Credit Union

Filing 115

ORDER granting in part 110 Motion for attorney fees and costs. Signed by Magistrate Judge Monte C. Richardson on 1/19/2012. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOHN M. FLOYD & ASSOCIATES, INC.,
Plaintiff,
vs.

Case No. 3:09-cv-168-J-MCR

FIRST FLORIDA CREDIT UNION,
Defendant.
_____________________________________/

ORDER
THIS CAUSE is before the Court on Defendant’s Amended Motion for Award of
Attorneys’ Fees and Costs (Doc. 110) filed December 30, 2011.
I.

BACKGROUND
Plaintiff, John M. Floyd & Associates, Inc., filed a Complaint on February 24,

2009 against Defendant, First Florida Credit Union, alleging breach of contract. (Doc.
1). Plaintiff filed an Amended Complaint on April 30, 2009 (Doc. 9), to which Defendant
responded by filing a Motion to Dismiss (Doc. 11). Plaintiff then filed a Second
Amended Complaint (Doc. 24) on August 7, 2009. On August 28, 2009, Defendant filed
another motion seeking to have the Second Amended Complaint dismissed for failure to
state a claim. (Doc. 27). On May 5, 2010, the Court denied the Motion to Dismiss
because in order to resolve it, the Court would be required to interpret the
Confidentiality provision of the Agreement and such interpretation was better suited to a
motion for summary judgment. (Doc. 48, p. 7). Thereafter, on January 3, 2011,

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Defendant filed a Motion asking the Court to grant summary judgment in its favor on
Plaintiff’s breach of contract claim. (Doc. 67).
On March 14, 2011, this Court granted Defendant’s Motion for Summary
Judgment and directed the Clerk to close the file.1 (Doc. 95). On October 14, 2011,
Defendant filed a Motion for Award of Attorneys’ Fees and Costs (Doc. 103), which was
denied without prejudice for failure to provide the requisite information (Doc. 109). On
December 30, 2011, Defendant filed the instant Amended Motion for Award of
Attorneys’ Fees and Costs. (Doc. 110). On January 13, 2012, upon order of this Court
(Doc. 113), Plaintiff filed its response in opposition to Defendant’s Motion (Doc. 114).
Accordingly, this matter is now ripe for judicial review.
II.

ANALYSIS
Defendant claims it is entitled to an award of attorneys’ fees and costs as the

prevailing party in this suit. (Doc. 110, p. 2). The Eleventh Circuit defines “prevailing
party” as follows: “[t]o be a prevailing party [a] party need not prevail on all issues to
justify a full award of costs, however. Usually the litigant in whose favor judgment is
rendered is the prevailing party for purposes of rule 54(d) ...” Stein v, Paradigm Mirasol,
LLC, 2009 WL 32887, at *2 n.3 (M.D. Fla. Jan. 6, 2009) (citing Fireman’s Fund Ins. Co.
v. Tropical Shipping & Constr. Co., Ltd., 254 F.3d 987, 1012 (11th Cir. 2001)). Thus,
because judgment was rendered in favor of Defendant (Docs. 95, 104), it is the
prevailing party in this matter for purposes of Federal Rule of Civil Procedure 54(d). As
the prevailing party, Defendant is entitled to recover its attorneys’ fees and costs

1

This decision was affirmed on appeal. See (Doc. 104).
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pursuant to the provisions of the written contract at issue in this matter. See (Doc. 24,
p. 12).
A.

Attorneys’ Fees

Now that the Court has determined that Defendant is entitled to an award of
attorneys’ fees, it will apply the lodestar method to determine the reasonableness of
fees sought. See Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th
Cir. 1988). The “starting point” in this analysis requires the Court “to multiply hours
reasonably expended by a reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461
U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “A reasonable hourly rate is the
prevailing market rate in the relevant legal community for similar services by lawyers of
reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299.
Next, the court will assess the number of hours expended by the moving party. Baby
Buddies, Inc. v. Toys "R" Us, Inc., 2011 WL 4382450, at *9 (M.D. Fla. Aug. 9, 2011).
The moving party must "exclude those hours which would be unreasonable to bill a
client," and in its review of the number of hours expended, the court should "exclude
excessive, unnecessary and redundant hours." ld.
Here, Defendant and its counsel agreed to the following hourly rates for the work
completed by each attorney:
(a)
(b)
(c)

James E. Sorenson
Jack E. Kiker, III
Brain C. Bohm

$200.00/hour
$200.00/hour
$175.00/hour

With regard to the experience of these attorneys, Mr. Sorenson has been practicing law
in Florida since 1996, Mr. Kiker has been practicing law in Florida since 2005, and Mr.

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Bohm started practicing law in Florida in 2011. The Court has reviewed the affidavits
attached to the instant Motion regarding the prevailing market rates for attorneys with
comparable skill, experience, and knowledge that practice in the Jacksonville area and
finds they support the reasonableness of the hours rates charged here. See (Doc. 110,
Ex. A, B, D).
With regard to the number of hours expended, the amount of attorneys' fees
sought by Defendant is as follows:
(a)
(b)
(c)

James E. Sorenson ($200.00 X 2.6 hours)
Jack E. Kiker, III ($200.00 X 107.2 hours)
Brian C. Bohm ($175.00 X 4.0 hours)
Total:

$ 520.00
$21,440.002
$ 700.00
$22,660.00

The Court has reviewed the Billing Ledger attached to the instant Motion, and finds the
hours expended to be reasonable and not excessive, with a few exceptions. See (Doc.
110, Ex. C).
First, while the Court finds that reasonable travel time is compensable at the
usual hourly rate, Mallory v. Harkness, 923 F. Supp. 1546, 1557 (S.D. Fla. 1996), aff'd,
109 F.3d 771 (11th Cir. 1997), all of Defendant’s counsel’s travel time is not
recoverable. Between December 12, 2010 and February 11, 2010, Mr. Kiker claims a
total of 15 hours, at a cost of $3,000.00, for travel between Tallahassee and
Jacksonville on three occasions. This time spent did not require any legal skill or

2

On February 11, 2011, Mr. Kiker spent 4.0 hours, at a cost of $800.00, preparing for and
participating in a mediation. Plaintiff argues that this time should be excluded from Defendant’s
attorneys fees because it is not “time spent defending this litigation.” (Doc. 114, p. 2). The Court
disagrees. Although the costs of mediation are not recoverable, attorney time for representation
during mediation is recoverable.
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experience. Additionally, this high expense was only incurred because Defendant
chose a law firm located in Tallahassee when this matter was filed in Jacksonville.3
While Defendant is free to choose the representative of its choice, the fact that such a
representative needs a full day of travel time in order to attend discovery events and
mediation is not necessarily taxable to Plaintiff and should be reduced. See Bookman
v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS 147177 (M.D. Fla. Nov. 2, 2011)
(reducing excessive travel time); Dillard v. City of Foley, 995 F. Supp. 1358, 1370-71
(M.D. Ala. 1998) (reducing but not denying travel time where case could have been
litigated by able local counsel). Thus, the Court finds 5 hours to be reasonable for
counsel’s travel to three events, reducing Mr. Kiker’s attorneys’ fees claim by $2,000.00.
Second, the Billing Ledger indicates that Mr. Bohm spent 4 hours at a cost of
$700.00 researching and drafting certain pleadings. See (Doc. 110, Ex. C, p. 8). On
November 2, 2011, Mr Bohm’s entry indicates that he drafted a "Motion for Attorney's
Fees at Eleventh Circuit and and (sic) requisite attachments.” (Id.). However, no such
motion was ever filed here. In fact, Defendant filed a Motion for Attorneys’ Fees and
Costs on October 14, 2011 (Doc. 103), which was denied without prejudice on
December 12, 2011 (Doc. 109). Therefore, as the entry indicates, the motion was likely
directed to the Eleventh Circuit. Additionally, on November 10, 2011 and November 14,
2011, Mr. Bohm’s time entries indicate that he drafted a “Motion for Extension of Time
to File for Award of Attorney's Fees,” composed e-mails regarding this motion, and

3

Plaintiff does not maintain any business operation in Jacksonville. However, Jacksonville
was the proper venue because the primary base of operation for Defendant was in Jacksonville.
Defendant did not raise any objection to this venue.
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conducted research regarding its sufficiency. (Id.). Again, this motion was never filed in
this case. As a motion for extension would be both unnecessary and extraneous in light
of the Motion for Attorneys Fees and Costs filed on October 14, 2011 (Doc. 103), Mr.
Bohm’s fees are not recoverable.
Accordingly, the Court finds Defendant is entitled to an award of attorneys’ fees
in the amount of $19,960.00 ($22,660.00 - $2,000.00 - $700.00).
B.

Costs

Federal Rule of Civil Procedure 54(d) provides that "costs other than attorneys'
fees shall be allowed as of course to the prevailing party unless the court otherwise
directs." The Supreme Court has interpreted Rule 54(d) to grant federal courts
discretion to refuse to award costs in favor of the prevailing party. See Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987).
Moreover, "in the exercise of sound discretion, trial courts are accorded great latitude in
ascertaining taxable costs." Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519,
1526 (11th Cir. 1985). However, in exercising its discretion, absent explicit statutory
authorization, federal courts are limited to those costs specifically enumerated in 28
U.S.C. § 1920. Crawford Fitting Co., 482 U.S. 437, 445, 96 L. Ed. 2d 385, 107 S. Ct.
2494 (1987).
28 U.S.C. § 1920, provides as follows:
A judge or clerk of any court of the United States may tax as
costs the following:
(1)

Fees of the clerk and marshal;

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(2)

(3)
(4)
(5)
(6)

Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in
the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and copies of papers
necessarily obtained for use in the case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services
under section 1828 of this title.

Here, Defendant is seeking costs in the amount of $2,477.91, which includes
travel costs ($154.27), Federal Express costs ($59.44), and mediation costs ($735.00).
(Doc. 110, Ex. E, F). These fees are not enumerated within 28 U.S.C. § 1920 and
Defendant has cited no legal authority to warrant taxing Plaintiffs with these expenses.
See George v. GTE Directories Corp., 114 F. Supp. 2d 1281, 1300 (M.D. Fla. 2000)
(refusing to tax certain costs when prevailing party cited no legal authority to justify such
an expense); see also Cook Children's Med. Ctr. v. New Eng. PPO Plan of Gen.
Consol. Mgmt., 491 F.3d 266, 2007 WL 1842117, at *7-9 (5th Cir. 2007) (holding that
district court abused its discretion by awarding mediation costs as part of Rule 54(d)
and § 1920 costs); Roy v. Bd. of County Comm'rs, 2011 U.S. Dist. LEXIS 119260 (N.D.
Fla. Sept. 27, 2011) (holding that travel expenses are not recoverable); Park v. Am.
Servs. of Cent. Fla., Inc., 2007 U.S. Dist. LEXIS 40849, 2007 WL 1626349, *6 (M.D.
Fla., June 05, 2007) (holding that postage costs are not recoverable). Thus,
Defendant’s Bill of Costs shall be reduced by $948.71, totaling $1,529.20 ($2,477.91 $948.71).

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III.

CONCLUSION
Accordingly, after due consideration, it is
ORDERED:
1.

Defendant’s Amended Motion for Award of Attorneys’ Fees and Costs

(Doc. 110) is GRANTED in part and an award of attorneys' fees and costs in the sum of
$21,489.20 shall be entered in favor of Defendant, First Florida Credit Union, and
against Plaintiff, John M. Floyd & Associates, Inc.
2.

The Clerk shall enter a separate judgment accordingly and close the file.

DONE AND ORDERED in Chambers in Jacksonville, Florida this 19th day of
January, 2012.

MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
Copies to:
Counsel of Record

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