Novak et al v. Safeco Insurance Company of Illinois

Filing 89

ORDER granting in part and denying in part 81 Motion for Attorney Fees and costs; Plaintiff is awarded $40,150.00 in attorneys' fees. In all other respects, the motion is denied. Adopting Report and Recommendations - re 86 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 5/1/2017. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MARNA NOVAK and WILLIAM
NOVAK,
Plaintiffs,
v.

Case No: 6:15-cv-215-Orl-41DCI

SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiff Marna Novak’s Amended Motion for
Attorneys’ Fees and Costs (Doc. 81). United States Magistrate Judge Danial C. Irick submitted a
Report and Recommendation (“R&R,” Doc. 86), in which he recommends that the motion be
granted in part and Plaintiff be awarded a portion of her requested fees. Plaintiff filed Objections
(Doc. 87) to the R&R, and Defendant filed a Response to Plaintiff’s Objections (Doc. 88). 1 As set
forth below, this Court agrees with the analysis in the R&R.
I.

LEGAL STANDARD

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 return the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).

1

In the Response, Defendant also raises objections for the first time. These objections are
untimely and will not be considered. See Fed. R. Civ. P. 72(b)(2).

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II.

ANALYSIS

Plaintiff makes two objections to the R&R. First, Plaintiff objects to the recommended
reasonable hourly rate of $450.00 per hour for attorney Stephen Marino and contends that, instead,
$625.00 per hour is a reasonable hourly rate. The Court agrees with the R&R. The cases and
evidence cited by Plaintiff are not sufficient to justify an award of $625.00 per hour for Mr. Marino.
At the outset, Mr. Marino himself has provided no evidence to support that number. At most, Mr.
Marino has attested that one of his clients is willing to pay as much as $575.00 an hour for his
services. However, Plaintiff has not presented this Court with any evidence of such a high hourly
rate being awarded in this market for similar or substantially similar litigation as that in this case.
Based on this Court’s research and knowledge of the relevant legal market, the Court agrees that
$450.00 is a reasonable hourly rate for Mr. Marino.
Plaintiff also objects to the eighty-five percent reduction in all fees incurred by
professionals associated with Ver Ploeg & Lumpkin, PA (“VPL”) prior to October 15, 2015.
Plaintiff argues that VPL was only hired to litigate the bad faith claim and, therefore, all of their
time was necessarily related to the bad faith claim and should be compensable. However, despite
VPL’s ultimate goal to bring a bad faith claim, much of its work was in furtherance of the
underlying breach of contract claim. Although there may be some overlap in the evidence required
to prove both, the breach of contract and bad faith claims are not inextricably intertwined with
respect to the attempted filing of an amended pleading because the research and drafting—which
constitutes the majority of the relevant fees—with respect to each issue could be clearly delineated
in this case. Furthermore, the Court agrees that insofar as the hours were nominally incurred in
litigating the bad faith claim, the majority of the hours were not a reasonable expenditure of hours
with respect to premature attempts to assert the bad faith claim. Finally, as noted by Defendant,

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many of the requested hours are contributable to multiple reviews of documents and internal
conferences, which are not properly shifted to Defendant. Accordingly, the Court agrees that a
general reduction of eighty-five percent for all fees incurred prior to the ripening of the bad faith
claim is appropriate to compensate Plaintiff for the work ultimately applied toward the litigation
of that claim but does not unnecessarily shift fees onto Defendant for unwarranted, unwise, and
otherwise noncompensable expenditures of time by Plaintiff.
III.

CONCLUSION

1. The Report and Recommendation (Doc. 86) is ADOPTED and CONFIRMED and
made a part of this Order.
2. Plaintiff Marna Novak’s Amended Motion for Attorneys’ Fees and Costs (Doc. 81)
is GRANTED in part and DENIED in part.
3. Plaintiff is awarded $40,150.00 in attorneys’ fees. In all other respects, the motion
is denied.
DONE and ORDERED in Orlando, Florida on May 1, 2017.

Copies furnished to:
Counsel of Record

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