Health First, Inc. v. Hynes
Filing
244
ORDER granting in part 217 Motion for Attorney Fees; Adopting in part Report and Recommendations - re 236 Report and Recommendations. Plaintiff is awarded $173,002.20 in attorneys' fees and $13,397.00 in costs. Signed by Judge Carlos E. Mendoza on 9/1/2016. (DJD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HEALTH FIRST, INC.,
Plaintiff,
v.
Case No: 6:11-cv-715-Orl-41KRS
RICHARD HYNES,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Renewed Motion to Determine Amount
and Award Reasonable Attorney’s Fees and Non-taxable Costs (“Fees Motion,” Doc. 217). On
June 27, 2016, United States Magistrate Judge Karla R. Spaulding submitted a Report and
Recommendation (“R&R,” Doc. 236), in which she recommends that the motion be granted in part
and Plaintiff be awarded a portion of its requested fees and expenses. Both Plaintiff and Defendant
filed objections to the R&R, (see Pl.’s Obj., Doc. 237; Def.’s Obj., Doc. 238), and Plaintiff filed a
response to Defendant’s Objection, (Pl.’s Resp., Doc. 240). After an independent de novo review
of the record, the R&R will be adopted in part and rejected in part.
LEGAL STANDARD
I.
A district court is required to review de novo the objected-to portions of a magistrate
judge’s recommendation and “may accept, reject, or modify, in whole or in part” the
recommendation. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). Moreover, a district
court may “receive further evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).
II.
ANALYSIS
Page 1 of 8
Plaintiff requests to recover attorneys’ fees for time spent in eight specific categories: (1)
fees related to addressing Defendant’s eDiscovery requests; (2) fees related to Defendant’s request
to inspect computers and servers; (3) fees related to pursuing discovery from Defendant’s
technology expert; (4) fees related to Defendant’s summary judgment motion; (5) fees related to
Defendant’s motion for sanctions for the alleged spoliation of evidence; (6) fees related to
Defendant’s motion in limine; (7) fees related to the motion for disqualification and to determine
privilege; and (8) fees incurred in preparing for and taking this case through trial. With respect to
the first, second, third, fifth, and eighth categories, the dollar amount proposed in the R&R will be
adopted without further comment. The Court will also adopt the reduction in the hourly rate of
paralegal Linda Edgar as unopposed.
Plaintiff also seeks to recover a portion of its non-taxable costs for fees paid in deposing
Defendant’s expert and fees paid to Plaintiff’s expert to oversee the examination of Plaintiff’s
computer. Defendant’s objection is without merit. Plaintiff will be awarded $13,397.00 in nontaxable costs as set forth in the R&R.
A.
Reasonable Hours
Judge Spaulding recommends reductions in the total number of compensable hours allowed
with respect to Plaintiff’s response to Defendant’s summary judgment motion, motion in limine,
and motion to disqualify. Plaintiff objects to all three reductions.
1.
Plaintiff’s response to Defendant’s motion for summary judgment
Plaintiff objects to the disallowance of $616.00 for fees incurred in relation to a proposed
Rule 11 motion that was never filed. Specifically, Plaintiff contends that although the motion was
not ultimately filed, Defendant did supplement his filings with respect to the motion for summary
judgment to correct the factual error contained therein. (See Def.’s Supp. to Mot. Summ. J., Doc.
Page 2 of 8
100). Therefore, Plaintiff contends, these fees were reasonably incurred. The Court agrees and will
add $616.00 in this category; Plaintiff will be awarded lodestar fees of $15,836.00 in this category.
2.
Plaintiff’s response to Defendant’s motion in limine
On September 5, 2012, Defendant filed two motions in limine (Doc. Nos. 101, 102), which
the Court struck on September 7, 2012, for failure to comply with the Court’s case management
preferences, (Sept. 7, 2012 Order, Doc. 105). Thereafter, on October 2, 2012, Defendant filed a
renewed motion. (Renewed Mot. in Limine, Doc. 120). In the R&R, Judge Spaulding recommends
that Plaintiff only be allowed to recover fees incurred after the renewed motion was filed. (R&R
at 16–17). Plaintiff argues that it should be compensated for work related to the initial Motions in
Limine because it reused this work, rather than redoing the work, in responding to the identical
renewed motion.
The Court agrees that Plaintiff should be able to recover for any work which it was not
required to duplicate with respect to the renewed motion. However, the Court has found only a
total of thirty minutes of time spent on developing a response to the Motions in Limine between
September 5, 2012, and September 7, 2012. With respect to the remainder of the claimed time, the
Court will not award such time as reasonable. To the extent Plaintiff claims to have incurred fees
prior to September 5, 2012, Plaintiff has failed to apprise the Court of the basis on which it was
able to review or discuss a motion which had not yet been filed or served on Plaintiff. Additionally,
time spent reviewing the initial Motions in Limine is not time which could be saved with respect
to the renewed motion. Each motion had to be reviewed independently. Accordingly, a total of
$127.50 for 0.5 hours expended by Mr. Cox will be added to the total in this category, and Plaintiff
will be awarded $3,931.50.
3.
Plaintiff’s response to Defendant’s motion to disqualify
Page 3 of 8
On September 5, 2012, Defendant filed a Motion to Disqualify the Law Firm of Holland
& Knight LLP (“Motion to Disqualify,” Doc. 104). On or around that date, a nearly identical
motion was also filed in pending litigation between the parties in state court. Judge Charles
Holcomb held an evidentiary hearing on the motion in the state court case between September 19,
2012, and October 1, 2012. Plaintiff filed a response to the motion in this Court on September 24,
2012. (Pl.’s Resp. to Mot. to Disqualify, Doc. 114). At a status conference before Judge Spaulding
on October 2, 2012, this Court became aware of the evidentiary hearing held in state court on the
same issues. Accordingly, the following day, this Court stayed this case pending the resolution of
the motion in state court. (See Oct. 3, 2012 Order, Doc. 123). Defendant ultimately withdrew the
motion in this case after he was unsuccessful in state court.
Plaintiff seeks to recover its fees associated with responding to the Motion to Disqualify
and filing its own Motion for Order Determining that No Privilege Applies to Documents Produced
by Non-party (“Motion for Order,” Doc. 115). Plaintiff also seeks to recover fees associated with
two motions for reconsideration of the stay. Judge Spaulding recommends that all of these fees be
disallowed as not reasonable. Specifically, Judge Spaulding determined that had Plaintiff informed
the Court about the pending motion and hearing in the state court prior to responding to the Motion
to Disqualify, this Court would have stayed the case and Plaintiff would not have incurred the fees
in connection with the motion. Plaintiff argues that it could not have anticipated that this Court
would stay the litigation pending a ruling in state court when the state court ruling would not be
binding on this Court, and this Court would have to apply a different standard in ruling on the
motion.
The Court finds Plaintiff’s arguments persuasive. Although it may have been more cost
effective to have sought a stay or extension prior to filing responsive documents, Plaintiff’s actions
Page 4 of 8
were not unreasonable. Therefore, the Court will allow Plaintiff to recover fees in connection with
its response to the Motion to Disqualify, its Motion for Order, and the related Motion to File Under
Seal (Doc. 106). The Court will not, however, award Plaintiff fees for its motions for
reconsideration of the stay. Such motions were not reasonably necessary in light of this Court’s
October 3, 2012 Order sua sponte staying these proceedings, particularly where the relief Plaintiff
was requesting had the potential of directly and substantially conflicting with rulings issued by the
state court. Additionally, the Court will exclude fees allegedly incurred prior to the date on which
the Motion to Disqualify was filed in this Court and served on Plaintiff. Finally, the Court has
excluded from its calculation any entry in the billing records which does not clearly specify the
nature of the work and has estimated time where block billing was used. Accordingly, the Court
finds that the following time and fees will be added to the total in this category:
PROFESSIONAL HOURS WORKED HOURLY RATE FEE
Hoffman
28.8
$385.00
$11,088.00
MacKenzie
1.0
$385.00
$385.00
Boruke
54.2
$375.00
$20,325.00
McKown
14.9
$355.00
$5,289.50
Adams
37.2
$345.00
$12,834.00
Cox
60.9
$255.00
$15,529.50
Mears
8.0
$255.00
$2,040.00
Hatch
1.7
$165.00
$280.50
$67,771.50
TOTAL FEES:
Page 5 of 8
All other fees in this category will be disallowed for the reasons set forth herein. Plaintiff is entitled
to $78,891.50 in fees for this category.
B.
Adjustments
As set forth in the R&R and this Order, Plaintiff incurred reasonable attorneys’ fees in the
amount of $288,337.00 before adjustments. Judge Spaulding recommends that this number be
adjusted by an across-the-board reduction to account for the fact that only one of Plaintiff’s three
claims allows for the recovery of attorneys’ fees and due to the excessive duplication of efforts by
Plaintiff’s counsel.
First, Plaintiff argues that there should not be a reduction to account for the lack of fee
shifting provisions in two of the three causes of action. Plaintiff has cited no legal authority in
support of its argument that a reduction would not be appropriate. A reduction in the total fee
award is appropriate. A substantial portion of the fees incurred in this case were related to research,
briefing, and presenting two causes of action for which Plaintiff cannot recover fees. However, it
would be nearly impossible to determine exactly which claim was being addressed in each billing
entry. Therefore, an across-the-board percentage reduction to account for time spent working on
claims for which Plaintiff cannot recover fees is appropriate, and the Court will apply a percentage
reduction to the total fees.
Second, to the extent the parties object to the R&R’s findings under the Johnson factors,
the objections are not well taken. Although several issues were raised in this case—both claims
and defenses—none of the issues were particularly novel or complex. Thus, Judge Spaulding
correctly concluded that the novelty and difficulty of the questions presented had a neutral impact
on the proper award of fees in this case. The Court also agrees that the results obtained in this case
are neutral. Contrary to Defendant’s argument, Plaintiff did not abandon actual damages under the
Page 6 of 8
Stored Communications Act. The Court labeled the actual damages as damages under Plaintiff’s
Computer Fraud and Abuse Act claim, but those damages could have been recovered under the
Stored Communications Act claim as well. The Court’s election to allocate the damages in a certain
way does not impact the attorneys’ fees analysis. As to Plaintiff’s argument that Judge Spaulding
failed to account for nonmonetary damages awarded in this case, the value of those damages does
not significantly impact this factor. The results obtained in this case were not minimal, but neither
were they extraordinary. Accordingly, this factor is also neutral.
Finally, the Court agrees with Judge Spaulding that while litigating this case required
skilled attorneys, Plaintiff needlessly duplicated the work. There are numerous instances in which
Plaintiff’s counsel billed for multiple reviews of the same documents and in which several people
billed for attending conferences and conferring with each other. Furthermore, although the
associates on this case did a substantial amount of work, Plaintiff has provided no justification for
the need to have five partners billing a significant portion of the hours in this case. The Court notes
that almost half of the hours billed in this litigation were billed by partners. Although this litigation
was contentious and involved several issues, it did not require the skills of five partners to litigate
this matter assisted by only two associates. Accordingly, the Court will also apply a percentage
reduction to all fees awarded.
The Court will also apply a percentage reduction to all fees to account for what appear to
be—albeit likely inadvertent—attempts to recover fees for reviewing and addressing motions filed
in other litigation between these parties. Specifically, as the Court has noted on two occasions, it
appears that Plaintiff was inexplicably able to review and discuss Defendant’s motions before they
were filed or served in this litigation. The most logical explanation is that Plaintiff was actually
reviewing similar documents filed in other cases. While the Court has disallowed such fees where
Page 7 of 8
it is clear that there has been bleed-over between the numerous cases, a minimal percentage
reduction to all fees would further ensure that Plaintiff does not improperly recover fees for work
related to the parties’ state court litigation.
For these reasons, Plaintiff’s attorneys’ fees award will be reduced by an additional forty
percent. This Court found that the hours reasonably spent on this litigation resulted in a total fee
of $288,337.00. Minus forty percent—$115,334.80—the total fees which Plaintiff will be awarded
is $173,002.20.
III.
CONCLUSION
In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 236) is ADOPTED in part and made a
part of this Order to the extent consistent with that stated herein. In all other
respects, the R&R is REJECTED for the reasons stated herein.
2. Plaintiff’s Renewed Motion to Determine Amount and Award Reasonable
Attorney’s Fees and Non-taxable Costs (Doc. 217) is GRANTED in part.
3. Plaintiff is awarded $173,002.20 in attorneys’ fees and $13,397.00 in costs.
DONE and ORDERED in Orlando, Florida on September 1, 2016.
Copies furnished to:
Counsel of Record
Page 8 of 8
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?