CS Business Systems, Inc. et al v. Schar et al
Filing
115
ORDER re #101 Defendant Rick L. Scharich's request for attorney's fees. See the order for details. Signed by Magistrate Judge Philip R. Lammens on 7/17/2017. (CAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CS BUSINESS SYSTEMS, INC., et al.,
Plaintiffs,
v.
Case No: 5:17-cv-86-Oc-PGBPRL
DWIGHT C. SCHAR, et al.,
Defendants.
ORDER
Before the Court is Defendant Rick L. Scharich’s request for attorney’s fees relating to
Plaintiff CS Business Systems, Inc.’s inadequate discovery responses. (Docs. 83, 94, 101, 1011). Plaintiff has responded in opposition to the fee request. (Doc. 114). For the following
reasons, Mr. Scharich’s request is due to be granted.1
I.
BACKGROUND
Mr. Scharich served CSBS with its First Request for Production on April 21, 2017. (Docs.
83 at p.2; 83-1). CSBS never responded to Mr. Scharich’s discovery request or requested an
extension of time from this Court, although it claims Mr. Scharich opposed its request for an
extension. (See Doc. 114 at ¶4). Mr. Scharich then filed a motion to compel, which the Court
granted. (Docs. 83, 94).
Under Federal Rule of Civil Procedure 37(a)(5), the Court gave Mr. Scharich time in which
to file an assessment of its reasonably incurred expenses and gave CSBS an opportunity to show
1
This is the second request for fees made against CSBS for its failure to participate in discovery.
(Docs. 77, 84, 100, 100-1, 112). The previous request was granted in its entirety too. (Doc. 112).
cause why those expenses should not be imposed against it. (Doc. 94 at 3). Mr. Scharich has
now filed the affidavit of its attorney, Michael D. Crosbie, Esq., and requests $415 in attorney’s
fees, but Mr. Scharich does not request any costs. (Doc. 101-1). CSBS has responded and
submits that Mr. Scharich should not receive any fees. (Doc. 114).
II.
DISCUSSION
A.
Entitlement
As noted, CSBS asserts that Mr. Scharich is not entitled to fees here. CSBS incorporates
its arguments from its previous opposition to fees sought against, which was based on a different
discovery failure.
(Doc. 114 at ¶1).
CSBS also notes that the enormous breadth of Mr.
Scharich’s (and the Defendants’ collective) discovery requests made it impossible for CSBS (and
the other Plaintiffs) to do the following: respond within the initial time period prescribed, request
multiple extensions from both the Court and opposing counsel (who was wrongfully denying any
extensions), timely respond to the numerous motions filed by opposing counsel, and continue to
attempt to comply with the discovery requests while also propounding CSBS’s own discovery
request. (Doc. 114 at ¶4). CSBS also notes that it would be duplicative and unjust to sanction
CSBS for another attorney’s fees award when CSBS worked tirelessly to comply with the requests
and indeed did so late last month. (Doc. 114 at ¶5). CSBS finally notes that it is impossible that
Mr. Scharich has been prejudiced in any way by any delay in discovery caused by CSBS given the
infancy of this case. (Doc. 114 at ¶7).
Although the Court is mindful that this case has been heavily litigated from the start and
that, indeed, this young docket is already decorated with many substantive motions (by the Court’s
count, over ten substantive motions have been file to date, though this case in only four months
-2-
old), it is unpersuaded by many, if not all, of the arguments above for the reasons set forth in the
previous order on fees. (Doc. 113 at 3).
Most notably, similar to the previous motion to compel, the underlying motion to compel
sat on the docket unanswered for two weeks and contained a Local Rule 3.01(g) certification.
(See Docs. 83, 94). Given this, and given CSBS’s failure to seek an extension from the Court
prior to the filing of the underlying motion to compel, there is no basis for finding that Mr.
Scharich’s 3.01(g) certification is erroneous nor is there a basis to find that the circumstances
would make a fee award unjust.
B.
Attorney’s Fees
Mr. Scharich seeks $415 in attorney’s fees.
(Doc. 100-1 at ¶5).
In determining
reasonable attorney’s fees, the Court applies the federal lodestar approach, by multiplying the
number of hours reasonably expended on the litigation by the reasonable hourly rate for the
services provided by counsel for the prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781
(11th Cir. 1994) (per curiam). “[T]he fee applicant bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended and hourly rates.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). Once the court has determined the lodestar, it may adjust
the amount upward or downward based upon a number of factors, including the results obtained.
Norman v. Hous. Auth. of the City of Montgomery, 836 F. 2d 1292, 1302 (11th Cir. 1988).
“Ultimately, the computation of a fee award is necessarily an exercise of judgment, because
‘[t]here is no precise rule or formula for making these determinations.’” Villano v. City of
Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 436).
Additionally, the Court is ‘“an expert on the question [of attorneys’ fees] and may consider its own
knowledge and experience concerning reasonable and proper fees and may form an independent
-3-
judgment either with or without the aid of witnesses as to value.”’ Norman, 836 F. 2d at 1303
(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)).
1. Reasonable Hourly Rate
“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 (emphasis added). The applicant bears the burden of producing
satisfactory evidence that the requested rate is in line with the prevailing market rates. Id. The
trial court, itself, is an expert on the question of the reasonableness of fees and may consider its
own knowledge and experience. Id. at 1303.
Mr. Scharich requests the following hourly rate: $415 for Mr. Crosbie, who is a partner at
Shutts and Bowen, LLP. As previously stated, Mr. Crosbie is a former Middle District law clerk,
former in-house counsel, former chair of Shutts and Bowen’s Business Litigation Practice Group,
and is thus familiar with hourly rates based on his twenty-plus-years-experience as practitioner,
law clerk, and consumer of legal services. (Doc. 101-1 at ¶7).
A review of decisions from this Division shows that the prevailing market rate is consistent
with the proposed attorney’s fees. See, e.g., Ranize v. Town of Lady Lake, Fla., No. 511-CV-646OC-PRL, 2015 WL 1037047, at *5 (M.D. Fla. Mar. 10, 2015) (awarding counsel a rate of $375
per hour in Ocala). Thus, given the fact the CSBS does not challenge the requested rates, and
based upon the foregoing and the Court’s own experience and familiarity with rates in the Ocala
Division, the undersigned finds that the requests hourly rates are reasonable.
2. Reasonableness of Hours Expended
The next step in the lodestar analysis is to determine what hours were reasonably expended
on the litigation. The attorney fee applicant should present records detailing the amount of work
-4-
performed and “[i]nadequate 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.” Florida
Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). Then, the fee
opponent “has the burden of pointing out with specificity which hours should be deducted.” Rynd
v. Nationwide Mut. Fire Ins. Co., No. 8:09-cv-1556-T-27TGW, 2012 WL 939387, at *3 (M.D.
Fla. January 25, 2012) (quoting Centex-Rooney Const. Co., Inc. v. Martin Cnty., 725 So.2d 1255,
1259 (Fla. App. Ct. 1999); see also Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292,
1301 (11th Cir. 1988) (“As the district court must be reasonably precise in excluding hours thought
to be unreasonable or unnecessary, so should be the objections and proof from fee opponents.”).
Additionally, attorneys “must exercise their own billing judgment to exclude any hours
that are excessive, redundant, or otherwise unnecessary.” Galdames v. N&D Inv. Corp., 432 F.
App’x 801, 806 (11th Cir. 2011). And a court may reduce excessive, redundant, or otherwise
unnecessary hours, or may engage in “an across-the-board cut,” as long as the court adequately
explains its reasons for doing so. Id.
Mr. Scharich requests one hour’s worth of attorney’s fees for Mr. Crosbie. (Doc. 101-1
at ¶8). I find that a single hour was a reasonable amount of time to spend on the underlying motion
to compel, which contained case law, argument, and exhibits. Cf. Odom v. Navarro, No. 0921480-CIV, 2010 WL 547652, at *4–5 (S.D. Fla. Feb. 11, 2010) (awarding 1.2 hours when “[t]he
portion of the motion which asks the Court to compel discovery requests from Defendants appears
to be a form, containing no case law, and merely states the various requirements of [the Civil
Rules]” and when “a reasonable amount of time to spend in drafting the motion to compel, which
was based upon a total failure to respond to discovery, should not have exceeded one hour, even
for a relatively inexperienced attorney”).
-5-
3. Lodestar Summary
There are no further grounds to either reduce or increase the requested fees. Accordingly,
Mr. Scharich should be awarded a total $415 for Mr. Crosbie.
III.
CONCLUSION
Accordingly, and upon due consideration, Mr. Scharich’s request for attorney’s fees
against CSBS is GRANTED in the amount of $415.
DONE and ORDERED in Ocala, Florida on July 17, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?