The Travelers Home and Marine Insurance Company v. Calhoun
Filing
33
ORDER adopting 28 REPORT AND RECOMMENDATIONS. 25 MOTION for attorney fees is granted in part and denied in part. 30 MOTION for leave to file under seal is denied. The Clerk is SHALL ENTER a final judgment as follows: Defendant Nancy Calhoun is awarded attorney's fees in the amount of $7,410.00 against Plaintiff The Travelers Home and Marine Insurance Company. Signed by Chief Judge Anne C. Conway on 4/1/2014. (LAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
THE TRAVELERS HOME AND
MARINE INSURANCE COMPANY,
Plaintiff,
v.
Case No: 5:13-cv-251-Oc-22PRL
NANCY H. CALHOUN,
Defendant.
/
ORDER
This cause comes before the Court on Defendant Nancy Calhoun’s Motion for Attorney
Fees, filed on November 8, 2013. (Doc. No. 25). Plaintiff The Travelers Home and Marine
Insurance Company (“Travelers”) responded in opposition. (Doc. No. 26).
On February 21, 2014, Magistrate Judge Lammens submitted a report recommending that
Defendant’s Motion for Attorney Fees be granted in part and denied in part. (Doc. No. 28).
After an independent de novo review of the record in this matter, including the objection
filed by Defendant (Doc. No. 29) and Defendant’s Motion for Leave to File Under Seal
Unredacted Time Records (Doc. No. 30), the Court agrees entirely with the findings of fact and
conclusions of law in the Report and Recommendation. (“R & R”).
I.
BACKGROUND
A. Procedural History
On May 28, 2013, Travelers filed this suit against Defendant Nancy Calhoun
(“Defendant”) for declaratory relief pursuant to 28 U.S.C. § 2201 and 2202. (Doc. No. 1). In its
Complaint,
Travelers
sought
a
declaration
that
it
properly
handled
Defendant’s
uninsured/underinsured motorist claim and that it was not liable to Defendant for any amount
over the at issue policy limit. (Id. at p. 6). Defendant responded to the Complaint by filing its
Motion to Dismiss. (Doc. No. 12). Relying on the abstention doctrine, the Court granted
Defendant’s Motion to Dismiss and dismissed Travelers’ Complaint without prejudice. (Doc.
No. 24). On November 8, 2013, Defendant filed her Motion for Attorney Fees, seeking to
recover fees under Florida Statute § 627.428. (Doc. No. 25). On February 21, 2014, Judge
Lammens issued the R & R, recommending that Defendant’s Motion for Attorney Fees be
granted “to the extent that Defendant be awarded $7,410.00 in attorney’s fees and otherwise
denied.” (Doc. No. 28 at p. 9).
II. LEGAL STANDARD
In the Eleventh Circuit, a district judge may accept, reject or modify a magistrate judge’s
report and recommendation after conducting a careful and complete review of the findings and
recommendations. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.
1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744 (1983). A district judge must conduct a de
novo review of the portions of a magistrate judge’s report and recommendation to which a party
objects. 28 U.S.C. § 636(b)(1)(C). This requires that the district judge “give fresh consideration
to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of
Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess.,
reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). A district judge reviews legal
conclusions de novo, even in the absence of an objection. See Cooper–Houston v. Southern Ry.,
37 F.3d 603, 604 (11th Cir. 1994).
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III. DISCUSSION
Defendant does not object to Judge Lammens’ recommendation that an award of fees in
this case is warranted. (Doc. No. 28 at pp. 2-5).1 The Court does not address this issue any
further. Next, the Court turns to Defendant’s objections to the Magistrate Judge’s calculation of
fees.
A. Defendant’s Motion for Leave to File Under Seal & Hours Reasonably Expended
Initially, the Court denies Defendant’s request to file unredacted time sheets for the Court
to consider in conjunction with Defendant’s objections. Because Defendant’s Motion for Leave
to File Under Seal presents issues intertwined with Defendant’s objections as to the
reasonableness and relatedness of certain entries in her fee request, the Court addresses these
issues together. In regards to the severely redacted versions of these records, Magistrate Judge
Lammens stated:
As to the number of hours expended, counsel must present accurate “records
detailing the amount of work performed. Inadequate documentation may result in
a reduction in the number of hours claimed, as will a claim for hours that the court
finds to be excessive or unnecessary.” An attorney will not receive fees for work
done in another case. The applicant for attorney’s fees “bears the burden of
documenting the time spent on litigation and must provide specific and detailed
evidence from which a determination of the reasonableness of the hourly rates for
the work performed can be made.”
....
A review of Defendant’s attorney time records reveals a number of entries that
either do not appear to be related to the instant case or that fail to contain
sufficient particularity to allow the undersigned to determine whether the time
expended was reasonable. Specifically, the undersigned is unable to ascertain
whether the following entries relate to the instant case and if so, whether they are
reasonable:
May 6, 2013: “Draft/revise attorney notes regarding [redacted]”
1 Travelers untimely filed both its Response in Opposition to Motion for Leave to File Under
Seal Unredacted Time (Doc. No. 31) and its Response to Defendant’s Objections to Report and
Recommendations. (Doc. No. 32). The Court does not consider these filings.
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May 15, 16, 20, 21, and 30, 2013: all entries
June 4 and 24, 2013: all entries
July 9, 2013: “Receive and review email correspondence from Peter
Gulden regarding [redacted]”
July 9, 2013: “Receive and review email correspondence from Janice
Lunn regarding [redacted]”
July 12, 2013: “Research [redacted]”
August 19, 2013: “Office conference with [Stephen A. Marino] regarding
[redacted]”
August 27, 2013: “Research case law pertaining to [redacted]”
September 25, 26, 27, and 30, 2013: all entries
October 15, 2013: “Receive and review email correspondence from Janice
Lunn [redacted] regarding [redacted]”
October 15, 2013: “Receive and review email correspondence from Janice
Lunn [redacted]”
October 15, 2013: “Receive and review email correspondence from Susan
Stafford regarding [redacted]”
October 15, 2013: “Receive and review correspondence from Ms. Faiella
to Joe Kissane and Daniel Duello regarding proposed final judgment”
October 15, 2013: “Receive and review email correspondence from Daniel
Duello regarding letter from Ms. Faiella”
October 16 and 21, 2013: all entries
October 25, 2013: “Receive and review correspondence from Janice Lunn
regarding [redacted]”
October 29, 2013: “Office conference with [Stephen A. Marino] regarding
[redacted]”
With respect to these entries, therefore, Defendant fails to meet her burden to
provide specific and detailed evidence that this work was reasonable, necessary,
and—importantly—directly related to this federal case. Accordingly, the Court
will eliminate this time from the award . . . .
(Id. at pp. 6-7) (internal citations omitted). Defendant now claims that the “subject entries were
redacted in an abundance of caution to prevent disclosure of attorney-client and work-product
information.” (Doc. No. 29 at p. 3). However, these unredacted records were not made available
to the Magistrate Judge and, even more significantly, Defendant made no explanation for the
heavy redaction of these records until after Judge Lammens issued the R & R. Defendant offers
no valid reason for her failure to present this argument to the Magistrate Judge in the first
instance. As the First Circuit Court of Appeals stated, “it would be fundamentally unfair to
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permit a litigant to set its case in motion before the magistrate, wait to see which way the wind
was blowing, and – having received an unfavorable recommendation – shift gears before the
district judge.” Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st
Cir. 1988).
It is in the Court’s “broad discretion” whether to consider new evidence after Defendant
previously had the opportunity to offer it, but decidedly chose not to. See Williams v. McNeil,
557 F.3d 1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline to consider a
party’s argument when that argument was not first presented to the magistrate judge.”).
Moreover, in her objection, Defendant specifically noted that “[r]egarding the scope of review,
litigants generally must present their evidence and arguments to the magistrate judge in the first
instance to preserve review . . . .” (Doc. No. 29 at p. 3 n.3 (citations omitted)). The Court finds it
inappropriate to consider evidence and arguments presented for the first time in Defendant’s
objections, and therefore declines to do so. See Williams, 557 F.3d at 1291 (approving district
court’s refusal to consider new argument set forth in objections where party had opportunity to
present such argument to magistrate judge and failed to do so); see also United States v. Howell,
231 F.3d 615, 621 (9th Cir. 2000) (holding that district courts are not required to consider
evidence presented for the first time in objections to a magistrate judge’s report and
recommendation).
With respect to the number of hours expended in this matter, the Court agrees entirely
with Judge Lammens’ analysis. Confusingly, Defendant seems to accept that certain entries are
clearly not related to this federal case by not raising any objection to their omission, (see, e.g.,
Doc. No. 25-1 (5.80 hours on “Appear for/attend m/leave to amend; travel re: same (cancelled)),
yet still claims entitlement to the full amount previously requested, i.e., $15,980.00. (Compare
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(Doc. No. 25 at p. 7), with (Doc. No. 29 at p. 6)). As to Defendant’s invitation for the Court to
now consider specific and detailed explanation of the time entries (Doc. No. 29 at p. 4), the
Court declines for the same reasons previously stated. See Williams, 557 F.3d at 1291. As such,
these objections are overruled.
After de novo review, the Court finds that the Magistrate Judge’s legal reasoning and
factual findings are correct and adopts the same rationale set forth in the Magistrate Judge’s
Report and Recommendation. The Court finds that the entries outlined by Judge Lammens (Doc.
No. 28 at p. 7) are not sufficiently specific and detailed to show that the time expended was
reasonable, necessary, and directly related to this federal case. Defendant has failed to meet her
burden to prove the amount of fees, which she herself has recognized that she must do. (See Doc.
No. 25 at p. 4 (“The burden is on Ms. Calhoun to prove the amount if its [sic] fees.”)). After
eliminating the time from these entries, “what remains in terms of countable time is 3.0 hours
expended by Attorney Marino and 31.8 hours expended by Attorney Wimbush.” (Doc. No. 28 at
p. 8).
B. Reasonable Hourly Rates
The Court also overrules Defendant’s objections as to Magistrate Judge Lammens’
calculation of the hourly rates of Attorney Marino and Attorney Wimbush. On this issue, Judge
Lammens found:
Next, as to the reasonable hourly rate, neither party has offered evidence to
support or refute Defendant’s requested hourly rates. Based upon the Court’s own
experience and familiarity with rates in the Ocala Division, the undersigned
recommends that the requested hourly rate for Attorney Marino be reduced from
$550.00 to $350.00 and that the requested hourly rate for Attorney Wimbush be
reduced from $250.00 to $200.00. See, e.g., Henns v. MONY Life Ins. Co. of Am.,
2012 WL 1599871, at *3-5 (M.D. Fla. Apr. 13, 2012) (recommending—in a case
in the Ocala Division—under § 627.428, hourly rates of $300.00 for attorneys
with 11 and 15 years’ experience and $250.00 for attorneys with more than 4
years’ experience), recommendation adopted, 2012 WL 1599866, at *3 (M.D.
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Fla. May 7, 2012); Rynd v. Nationwide Mut. Fire Ins. Co., 2012 WL 939387, at
*15-16 (M.D. Fla. Jan. 25, 2012) (recommending—in a case in the Tampa
Division—under § 627.428, hourly rates of $425 for Attorney Marino and $200
for an attorney with 5 years’ experience); recommendation adopted, 2012 WL
939247, at *4 (M.D. Fla. Mar. 20, 2012); Kearney v. Auto-Owners Ins. Co., 2011
WL 1527262, at *1-3 (M.D. Fla. Apr. 1, 2011) (awarding attorney’s fees—in a
case in the Tampa Division—under § 627.428 at hourly rates of $225.00 for an
attorney with 16 years’ experience and $125.00 for an attorney with 5 years’
experience).
(Id. at p. 8). The Court agrees with this analysis. The cases cited by Defendant in her objections
either mistakenly focus on cases from different localities and courts, or simply are not persuasive
as to this case.
“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 v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). “The general rule
is that the ‘relevant market’ for purposes of determining the reasonable hourly rate for an
attorney’s services is ‘the place where the case is filed.’” Am. Civil Liberties Union of Ga. v.
Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quoting Cullens v. Ga. Dep’t of Transp., 29 F.3d
1489, 1494 (11th Cir. 1994)). “If a fee applicant desires to recover the non-local rates of an
attorney who is not from the place in which the case was filed, he must show a lack of attorneys
practicing in that place who are willing and able to handle his claims.” Barnes, 168 F.3d at 437;
see also Brooks v. Ga. State Bd. of Elections, 997 F.2d 857, 869 (11th Cir. 1993) (upholding
decision to award non-local rates based on the district court’s finding that there were no local
attorneys who could have handled the case); Am. Charities for Reasonable Fundraising
Regulation, Inc. v. Pinellas Cnty., 278 F. Supp. 2d 1301, 1310 n.4 (M.D. Fla. 2003). Defendant
has made no such showing.
Based upon the Court’s experience and familiarity with rates in the Ocala Division, the
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Court finds that a rate of $350.00 per hour is appropriate for Attorney Marino and a rate of
$200.00 per hour is appropriate for Attorney Wimbush. Therefore, the Court finds the following
to be an appropriate fee award to Defendant for this case:
ATTORNEY
ALLOWED
RATE
ALLOWED
HOURS
Stephen A. Marino
$350/hour
3.0
$1,050.00
Rochelle N. Wimbush
$200/hour
31.8
$6,360.00
34.8
$7,410.00
TOTAL
ADJUSTED
AMOUNT
IV. CONCLUSION
Based on the foregoing, it is ORDERED as follows:
1. Magistrate Judge Lammens’ Report and Recommendations (Doc. No. 28),
filed on February 21, 2014, is ADOPTED and CONFIRMED and is made a
part of this Order.
2. Defendant Nancy Calhoun’s Motion for Attorney Fees (Doc. No. 25), filed on
November 8, 2013, is GRANTED in part and DENIED in part to the extent
provided in this Order.
3. Defendant Nancy Calhoun’s Objection to the Magistrate Judge’s Report and
Recommendations (Doc. No. 29), filed on March 7, 2014, is OVERRULED.
4. Defendant Nancy Calhoun’s Motion for Leave to File Under Seal Unredacted
Time Records (Doc. No. 30), filed on March 7, 2014, is DENIED.
5. The Clerk is SHALL ENTER a final judgment as follows: Defendant Nancy
Calhoun is awarded attorney’s fees in the amount of $7,410.00 against
Plaintiff The Travelers Home and Marine Insurance Company.
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DONE and ORDERED in Orlando, Florida on April 1, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Parties
Magistrate Judge Lammens
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