Renuen Corporation et al v. Lameira et al

Filing 108

ORDER granting 104 Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 4/22/2015. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RENUEN CORPORATION, JEFFREY
CHARLES NEMES, and DONGJOON
ALEXANDER KIM,
Plaintiffs,
v.

Case No. 6:14-cv-1754-Orl-41TBS

JOHN L. LAMEIRA, AMERICA'S GREEN
ENERGY SOURCE, INC., AMERICA'S
GREEN ENERGY CONTRACTORS, INC.,
CATHY J. LERMAN, STEVEN H. LERMAN,
CATHY J. LERMAN, P.A., WALTER KRITSKY
and DOES 1-50,
Defendants.
_____________________________________/
ORDER
On March 17, 2015, the Court entered its Order on the Amended Objection and
Motion for Protective Order Regarding Discovery by Defendants Cathy J. Lerman and
Cathy Jackson Lerman, PA (the “Lerman Defendants”) (Doc. 100). Plaintiffs prevailed
on the motion and the case is now before the Court on their application for attorney’s fees
(Doc. 104). The Lerman Defendants have filed a response in opposition to the
application (Doc. 106).
In their response, the Lerman Defendants ask the Court to reconsider its Order
denying their motion for protective order (Doc. 106 at 18). The motion for
reconsideration is DENIED. The Lerman Defendants argued in their motion for
protective order that the documents Plaintiffs were requesting contain the identities of
non-parties who have a well-founded fear that they will be intimidated and threatened by

Plaintiffs if their names are disclosed 1 (Doc. 100 at 7). In support of this allegation, the
Lerman Defendants filed an excerpt from the deposition of Michael Nello, a former
Renuen employee who said he and his family received threats of bodily harm from
Plaintiff Michael Nemes; an affidavit from John L. Lameira who stated that his life was
threatened by Roderick L. Boling, a person allegedly associated with Plaintiffs; and a
statement from Ms. Lerman that she received death threats from Mr. Boling (Docs. 86-2,
88 at 4, 96). Despite this proffer, the Court denied this part of the motion for protective
order because the Lerman Defendants failed to cite any legal authority for the proposition
that the identity of a non-party can be concealed; and they failed to show that they have
standing to bring a motion for protective order on behalf of non-parties (Doc. 100 at 8).
The Court said that if someone intimidates a non-party, then the non-party must seek
protection from the Court. (Id.) (citing Refoule v. Ellis, 74 F. Supp. 336, 343 (N.D. Ca.
1947)). The Lerman Defendants argue that the Court should reconsider its ruling on this
part of their motion for protective order, and as grounds, repeat the arguments they made
in their original motion. They also offer more examples of Plaintiffs’ alleged threatening
conduct (Doc. 106 at 5, 8-10, 14-15). And, for the first time, they cite Roca Labs, Inc. v.
Consumer Opinion Corp., No. 8:14-cv-2096-T-33EAJ, Doc. 19, (M.D.Fla.), and Ms.
Lerman’s ethical duty found in Rule 4-1.6 of the Rules Regulating the Florida Bar as
authority to bring the motion for protective order on behalf of the non-parties (Doc. 106 at
6).
A party may seek relief from a final judgment, order, or other proceeding under

1 The Lerman Defendants also objected to Plaintiffs’ requests for production and sought a
protective order on the grounds that the requests are so overbroad and generalized that they are
oppressive and impossible to respond to; the requests are simply boilerplate; Plaintiffs seek privileged
information; and they seek information about nonparties who enjoy an expectation of privacy (Doc. 88).

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Fed.R.Civ.P. 60(b). “Reconsideration of a Court’s previous order is an extraordinary
remedy and, thus, is a power which should be used sparingly.” See Carter v. Premier
Rest. Mgmt, No. 2:06-cv-212-FtM-99DNF, 2006 WL 2620302, at *1 (M.D. Fla. Sept. 13,
2006) (citing Am. Ass’n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339
(M.D. Fla. 2003)). The three major grounds for a motion for reconsideration of an order
are to: (1) account for an intervening change in controlling law; (2) consider newly
available evidence; or (3) correct clear error or prevent manifest injustice. Parker v.
Midland Credit Mgmt., 874 F. Supp. 2d 1353, 1359 (M.D. Fla. 2012); Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) (citing Decker Coal Co. v.
Hartman, 706 F. Supp. 745, 750 (D. Mont. 1988) (“A motion for reconsideration may be
brought pursuant to Rule 59(e) or Rule 60(b) ... Courts have delineated three major
grounds justifying reconsideration ... “)). 2
The Lerman Defendants have not demonstrated the existence of a valid ground for
reconsideration. They have not alleged that reconsideration is necessary for the Court to
account for an intervening change in law, and they have not presented newly available
evidence. While they allege more examples of harassment and intimidation, they do not
argue that the newly disclosed instances were unknown to them when they filed the

Although Courts have interpreted the federal rules to allow for three major grounds for relief, the
text of Rule 60(b) provides the following grounds:
2

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.

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original motion, and they do not explain why this cumulative evidence is cause for the
Court to reverse itself, and enter a protective order. The Lerman Defendants also have
not demonstrated that the Court committed clear error. In demonstrating clear error,
they must do more than reargue an issue the Court has already determined. Rather, the
“burden is upon the movant to establish the extraordinary circumstances supporting
reconsideration.” Carter, 2006 WL 2620302, at *1; see also O’Neill v. Home Depot
U.S.A., Inc., 243 F.R.D. 469, 483 (S.D. Fla. 2006); Z.K. Marine, Inc. v. M/V Archigetis,
808 F. Supp. 1561, 1563 (S.D. Fla. 1992).
The Lerman Defendants reliance on Roca Labs is misplaced. There, the court
denied a motion for temporary restraining order, construed as a motion for protective
order, to prevent witness intimidation. Id., at Doc. 37. Ms. Lerman’s citation of Rule 41.6 of the Rules Regulating the Florida Bar as a basis for filing a motion to protect nonparties also lacks merit. She offers no explanation of how a Florida Bar rule could give
her standing to motion a federal court to protect the personal rights of non-parties. The
Court also notes that the Preamble to the Rules of Professional Conduct, Chapter 4
Rules Regulating the Florida Bar states “[v]iolation of a rule should not itself give rise to a
cause of action against a lawyer nor should it create any presumption in such a case that
a legal duty has been breached.” Preamble: A Lawyer’s Responsibilities. The Court
does not understand how rules that do not create causes of action can impart standing to
file a motion for protective order on behalf of non-party witnesses.
Federal Rule of Civil Procedure 26(c)(3) makes Rule 37(a)(5) applicable to
motions for protective orders. Rule 37(a)(5)(B) provides that if a motion is denied “the
court ... must, after giving an opportunity to be heard, require the movant, the attorney
filing the motion, or both to pay the party or deponent who opposed the motion its

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reasonable expenses incurred in opposing the motion, including attorney's fees. There
are three exceptions to the Rule: (1) when the movant fails to attempt in good faith to
resolve the matter before seeking court intervention; (2) if the motion was substantially
justified; or (3) if other circumstances make an award unjust. Id. The Court has already
found that none of the exceptions apply. Still, the Lerman Defendants argue that their
motion for protective order was substantially justified. They base their argument on their
concern that Plaintiffs have and will intimidate witnesses, and new allegations that
Plaintiffs and their lawyers are engaging in misleading conduct to harass, influence and
intimidate Defendants, and knowingly mislead the Court (Doc. 106, ¶¶ 25, 32). The
Lerman Defendants also contend that Plaintiff’s lawyers have made allegations of fact for
which they lack reliable evidence or a good faith belief (Id., ¶ 23); a notary public
employed by Plaintiffs notarized forged signatures for Plaintiffs’ benefit (Id., ¶¶ 25, 32);
and one of the Plaintiffs filed an unfounded ethics complaint against Ms. Lerman (Id., ¶¶
22-23). These are serious allegations which, if proven, will have real consequences.
But, they were not cited as grounds for the entry of a protective order. The Court has
already found, with two exceptions, that the Lerman Defendants failed to show good
cause for a protective order or why they should be excused from furnishing a privilege log
(Doc. 100).
The issue now before the Court is the amount of attorney’s fees Plaintiffs should
recover for having to defend the improvidently filed motion for protective order. Federal
courts have adopted the lodestar method to determine the amount of attorney’s fees to be
awarded. Schafler v. Fairway Park Condominium Ass’n, 147 F. App’x 113, 114 (11th
Cir. 2005) (per curiam). The lodestar is calculated by multiplying the number of hours
reasonably expended on the litigation by the reasonable hourly rate for the services

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provided by counsel for the prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781
(11th Cir. 1994) (“The starting point in fashioning an award of attorneys’ fees is to multiply
the number of hours reasonably expended by a reasonable hourly rate” to determine the
lodestar amount.) (per curiam). “The fee applicant bears the burden of establishing
entitlement and documenting the appropriate hours and hourly rates.” Norman v.
Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). The
Court must exclude from its calculation, “excessive, redundant or otherwise
unnecessary” hours. Hensley v. Eckerhard, 461 U.S. 424, 434 (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. “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). 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 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)).
Plaintiffs seek a total of $9,695.50 for the following three lawyers to prepare their
response to the motion for protective order:
Attorney

Hours

Rate

Amount

Adam Sherman

7.0

$420

$2,940.00

T. Blake Finney

8.7

$260

$2,262.00

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Clifford Lauchlan

20.9

$215

$4,493.50

(Doc. 104 at 3, 5-6).
Mr. Sherman is a partner at Vorys, Sater, Seymour & Pease LLP, who has been
practicing law for over 13 years (Id., at 5). Mr. Finney and Mr. Lauchlan are associates
at the Vorys Sater firm. Mr. Finney has over 3 ½ years of experience, and Mr. Lauchlan
is a 2014 graduate of the University of Cincinnati College of Law (Id., at 5-6). Plaintiffs
represent that the majority of the work was performed by Mr. Lauchlan, then reviewed
and revised by Mr. Finney, and lastly, by Mr. Sherman (Id., at 5). Counsel say their fees
are reasonable because they are the rates Plaintiffs agreed to, and because the Vorys
Sater firm endeavored to minimize the total fee by utilizing associates with lower billing
rates to perform the majority of the work (Id., at 5-6).
The Lerman Defendants make two valid arguments in opposition to the requested
fee. 3 First, Plaintiffs fail to explain why three lawyers were needed to prepare a
response to a straightforward motion for protective order that did not raise novel or
complex issues. Second, the Vorys Sater firm’s billing records and the attorneys’
explanation of how the response was prepared are not easily reconciled. The billing
records reflect that Mr. Finney was the first to start drafting the response on February 6,
and then Mr. Lauchlan started work on February 9 (Doc. 104-1 at 6). Mr. Sherman, the
partner in charge, and Mr. Finney both analyzed Plaintiffs’ arguments on February 17,
and Mr. Sherman outlined those arguments on February 18, 2015 (Id., pg. 9). At best,
the records paint a picture of disorganization, inefficiency, and duplication of effort. A

3 The Court is not persuaded by the Lerman Defendants’ remaining arguments that counsels’
billing records are generalized and conclusory, and the response to the motion for protective order was not
lengthy (Doc. 106, pg. 16). It is generally more difficult and time consuming to write a short paper than to
write a long one. “If in this I have been tedious, it may be some excuse, I had not time to make it shorter.”
William Cowper, Philosophical Transactions of the Royal Society, 1704.

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prevailing party may not recover attorney’s fees for “excessive, redundant, or otherwise
unnecessary” hours, Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), or demand more
than 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. Having considered the complexity of this matter and the experience of the
attorneys, the Court finds that Plaintiffs are seeking compensation for excessive and
redundant hours worked. Considering the amount of time the Court expended on the
motion, and its knowledge of the market for similar services, it finds that 8 hours of
attorney time was reasonably expended to prepare Plaintiff’s response to the motion for
protective order.
According to Plaintiffs, $265 per hour is the approximate average hourly rate
charged for the preparation of the response. The Court finds this blended rate
reasonable for the work that was performed. Multiplying 8 hours by $265 per hour
results in a total fee of $2,120 which is reasonable under the circumstances.
Accordingly, Plaintiffs shall recover $2,120 in attorney’s fees from the Lerman Defendants
for defending the motion for protective order.
DONE AND ORDERED in Orlando, Florida, on April 22, 2015.

Copies to:
All Counsel
Any Unrepresented Parties

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