Rynd v. Nationwide Mutual Fire Insurance Company et al

Filing 252

ORDER adopting 247 REPORT AND RECOMMENDATION; granting in part and denying in part 202 Verified MOTION for attorney fees and Costs. Signed by Judge James D. Whittemore on 3/15/2012. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM P. RYND,
Plaintiff,
Case No. 8:09-cv-1556-T-27TGW

vs.
NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY,
Defendant.
__________________________

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ORDER
BEFORE THE COURT is the Report and Recommendation (Dkt. 247) submitted by the
Magistrate Judge recommending that Plaintiff's Verified Motion for Attorney's Fees and Costs be
GRANTED in part and DENIED in part. Plaintiff has filed objections to the Report and
Recommendation (Dkt. 248).
Standard of Review
A district court is required to "make a de novo determination of those portions of the
magistrate's report or ... recommendation to which objection is made." 28 U.S.C. § 636(b)(1). A
district court may "accept, reject or modify in whole or in part, the findings or recommendations
made by the magistrate." 28 U.S.C. § 636(b)(I)(C). Similarly, a district court may reconsider a
report and recommendation where it has been shown that the magistrate's order is clearly erroneous
or contrary to law. 28 U.S.C. § 636(b)(I)(A).
Discussion
Plaintiff's originally requested attorneys' fees in the amount of$778,308 (based on a lodestar
amount of $389,154 and a contingency risk multiplier of 2.0) and taxable costs in the amount of

$13,502.12. After post-judgment discovery, considerable briefing by the parties (including the
submission of expert reports), and oral argument, the Magistrate Judge prepared a fifty-seven page
Report and Recommendation recommending that Plaintiff be awarded $218,616 in attorneys' fees
pursuant to § 627.428, Fla. Stat., and $12,464.32 in costs pursuant to Rule 54(d), Federal Rules of
Civil Procedure.)
Plaintiff objects to the Magistrate Judge's recommendations relating to the (1) reasonableness
ofhours expended by Plaintiffs counsel, (2) hourly rate awarded to an counsel and staff, (3) rejection
of a contingent risk multiplier, and (4) disallowance of certain costs.

Reasonableness of Hours Expended
Plaintiff challenges several of the Magistrate Judge's findings regarding the reasonableness
of hours expended in this matter, including (1) reductions in time for "secretarial work" performed
by Jason Mulholland, (2) reductions in time relating to "unsuccessful claims" asserted against Sonya
Wesner, (3) reductions in time spent preparing for trial, (4) elimination of paralegal time, and
(5) reductions in time Mulholland spent at the courthouse during jury deliberations. 2 Based on an
independent review of the record, the Court concludes that Plaintiff s challenges to the Magistrate
Judge's recommendation as to the reasonableness of the hours expended by Plaintiffs counsel are
without merit.
) In addition to having the benefit of hearing oral argument on the Plaintiff's motion, the Magistrate Judge also
presided over the numerous discovery disputes that no doubt contributed to the substantial attorneys' fees requested by
Plaintiff. As a result, the Magistrate Judge had knowledge of the "particularly contentious and protracted discovery
period," including the necessity and reasonableness of many of the services for which Plaintiffs' counsel now seeks
compensation.
2 Plaintiff, as the party applying for an award of attorneys' fees, bears the burden of presenting satisfactory
evidence to establish that the hours are reasonable. See, e.g., American Civil Liberties Union o/Georgia v. Barnes, 168
F.3d 423,435 (lIth Cir. 1999); Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996); Norman v. Housing
Authority o/City o/Montgomery, 836 F.2d 1292, 1303 (11 th Cir. 1988); Florida Patient's Compensation Fundv. Rowe,

472 So.2d 1145, 1150 (Fla. 1985).

2

The Magistrate Judge properly concluded that reducing Mulholland's time by seven hours
(at a requested hourly rate of $425) was a reasonable method of addressing the fact that the time
records readily demonstrate that Mulholland included time entries for non-compensable clerical or
secretarial activity. See Loranger v. Stierheim, 10 F.3d 776, 783 (lIth Cir. 1994) (holding that
where the billing record is voluminous, "the district court need not engage in an hour-by-hour
analysis[; rjather, ... it may [ ] reduce [the hours devoted to litigation] in gross if a review of the
resubmitted fee request warrants such a reduction") (emphasis added). While Plaintiff repeatedly
asserts that Mulholland exercised billing judgment and removed activities that were plainly
secretarial in nature prior to submitting his time records to the Court, Plaintiff has offered no
evidence (by affidavit or otherwise) to support this contention.
Similarly, the Magistrate Judge properly concluded that time spent prosecuting Plaintiff's
claim against Wesner is not recoverable because it related to a discrete, unsuccessful claim. See
Duckworth, 97 F.3d at 1397; Rowe, 472 So.2d at 1151. In attempting to refute the Magistrate
Judge's conclusion, Plaintiff claims that on the morning of trial the Court reversed its ruling granting
Defendant's motion in limine to exclude evidence relating to Wesner. Initially, this is not an entirely
accurate characterization of the Court's decision. Moreover, it is undisputed that (1) Plaintiff was
unsuccessful in prosecuting a distinct claim against Wesner, (2) no evidence relating to Wesner was
offered at trial, and (3) the jury verdict in favor of Plaintiff was based solely on a finding that
Defendant acted in bad faith by failing to settle the claim against Plaintiff - an event that occurred
well before Wesner was retained to represent Plaintiff in the underlying litigation. As a result, the
Court agrees with the Magistrate Judge's recommendation that 27.7 hours of Mulholland's time
should be excluded from the lodestar calculation.
3

The Court also adopts the Magistrate Judge's recommendation that Mulholland's time be
reduced by 17 hours, Danya Pincavage's time by 20.3 hours, and Linda Mulhall's time by 10 hours
because time records lack the specificity required to establish the reasonableness of those hours in
connection with trial preparation. See Rowe, 472 So.2d at 1150. While Plaintiff argues that the
vague nature of the time entries was necessary to prevent disclosure of attorney work product, this
contention is belied by the fact that the unredacted time records submitted to the Court in camera
are essentially identical to the entries contained in the redacted records filed in support of Plaintiff s
fee request. In short, the subject matter of the time expenditures relating to trial preparation lack
sufficient particularity for the Court to assess the reasonableness of the time allotted. See Norman,
836 F.2d at 1303.
The Magistrate Judge also properly concluded that various redactions to the time entries for
paralegals were patently frivolous and that, as a result, Mulhall's time should be reduced by 12 hours
and Ronni Lowe's time entries totaling 23.5 should be excluded from the lodestar calculation.
Plaintiff argues that such reductions are inappropriate because the Magistrate Judge and the Court
have access to unredacted versions of the time records from which the Court can determine the
reasonableness of the hours expended. Plaintiff, however, ignores the fact that the Magistrate Judge
found the reductions necessary because the redactions were "patently frivolous" and, as a result,
Defendant lacked the ability to assert a meaningful objection to those entries. Norman, 846 F.2d at
1301.
Finally, the Magistrate Judge properly concluded that an 8.5 hour reduction in Mulholland's
time for time spent at the courthouse duringjury deliberations (rather than returning to his office in
Tampa). While Plaintiff asserts several reasons to justify the fact that Mulholland remained at the

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courthouse during the jury deliberations (both during and after normal business hours), the time entry
reflects only "deliberations" and offers no indication as to what work he performed during this period
or why his presence at the courthouse for the entire duration of the deliberations was necessary or
otherwise reasonable and Plaintiff has offered no evidence to that effect.

Hourly Rates
Plaintiff next challenges the hourly rates awarded by the Magistrate Judge with respect to
counsel and support staff.3 Specifically, Plaintiff contends that (1) Pincavage is entitled to an hourly
rate of$275 rather than the $200 rate recommended by the Magistrate Judge, (2) Mulhall is entitled
to an hourly rate of $180 rather than the $95 rate recommended by the Magistrate Judge, and
(3) Mulholland is entitled to an hourly rate of $425 rather than the $275 rate recommended by the
Magistrate Judge. Based on an independent review of the record, the Court concludes that Plaintiff s
challenge to the Magistrate Judge's recommendation as to the reasonableness of the hourly rates
awarded to Plaintiffs counsel is without merit. See Norman, 836 F.2d at 1301-03; American Civil

Liberties Union o/Georgia v. Barnes, 168 F.3d 423,437 (11 th Cir. 1999); see also Kearney v. AutoOwners Ins. Co., No. 8:06-cv-595-T-24TGW, 2011 WL 1527262, at *3 (M.D. Fla. April 21, 2011);
Ottaviano v. Nautilus Ins. Co., 717 F.Supp.2d 1259, 1268-69 (M.D. Fla. 2010).
Contingent Risk Multiplier
Plaintiff also contends that the Magistrate Judge erred in failing to award a contingent risk
multiplier of2.0. The Court disagrees. The Magistrate Judge's recommendation that a contingent

3 Plaintiff, as the party applying for an award of attorneys' fees, bears the burden of presenting satisfactory
evidence to establish that the hours are reasonable. See, e.g., Barnes, 168 F.3d at 435 ; Duckworth, 97 F.3d at 1396;
Norman, 836 F.2d at 1303; Rowe, 472 So.2d at 1150. A reasonable hourly rate is the "'market rate,' i.e., the rate charged
in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services." Rowe,
472 So.2d at 1150-51.

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risk multiplier is not warranted in this case was properly based on a thorough consideration of the
factors discussed in Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). For
example, the Magistrate Judge found that Plaintiff failed to produce reliable evidence that he would
have had difficulty finding counsel in the Tampa market absent a multiplier. See Sun Bank o/Ocala
v. Ford, 564 So.2d 1078, 1079-80 (Fla. 1990); see also Jablonski v. St. Paul Fire and Marine Ins.

Co., No. 2:07-cv-00386, 2010 WL 1417063, at *9-10 (M.D. Fla. April 7, 2010). Moreover, the
Magistrate Judge noted that the contingency nature of the litigation was largely taken into account
by the hourly rates awarded to Plaintiff's counsel (including the substantial disparity between the
rates charged by defense counsel). See Perdue v. Kenney A., 130 S.Ct. 1662, 1673-74 (2010)
(concluding that a "reasonable" fee is a fee sufficient to obtain competent counsel and compensate
for quality of attorney's performance; a "reasonable" number of hours presumably takes into account
the novelty and complexity of the case).4

Costs
Plaintiff challenges two cost reductions recommended by the Magistrate Judge: (1) $485 for
the deposition of Sonya Wesner and her service subpoena fee, and (2) $260 in surveillance costs and
rush services fees purportedly necessitated by Susan Killian's alleged attempt to dodge service of a
trial subpoena. The Court agrees with the Magistrate Judge that Plaintiff failed to establish that the
requested costs are recoverable under 28 U.S.C. § 1920.

4 Similarly, the amount of the judgment obtained by Plaintiff, while large, does not warrant application of a
multiplier to reward counsel for an exceptional or extraordinary result. As Defendant notes, "unlike a [traditional]
personal injury case" the amount recovered in this case was a function of the underlying judgment against Plaintiff and
not the result of counsel's efforts." Indeed, the fact that a standard contingency fee agreement would entitle counsel to
the greater of either the fees awarded by the Court or 40% of Plaintiff's recovery - in this case an amount in excess of
$1 million - refutes Plaintiff's claims that absent a potential multiplier he could not have retained competent counsel.
In any event, the Magistrate Judge recommended that Stephen Marino, Jr.'s hourly rate be adjusted upward by $25 as
a contingency enhancement based on "the excellent results he achieved with a relatively low expenditure of time."

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Conclusion

After careful consideration of Report and Recommendation and Plaintiffs objections, in
conjunction with an independent examination of the file, the Court is of the opinion that the Report
and Recommendation should be adopted, confirmed, and approved in all respects. Moreover, the
Court is fully satisfied that the total fee award of$218,616 recommended by the Magistrate Judge
is sufficient to satisfy the statutory purpose of discouraging insurance companies from contesting
valid claims absent application of a contingency multiplier. See Fireman's Fund Ins. Co. v. Tropical

Shipping and Canst. Co., Ltd., 254 F.3d 987,1010 (lIth Cir. 2001). Accordingly, it is ORDERED
AND ADJUDGED that:

(1)

The Report and Recommendation (Dkt. 247) is adopted, confirmed, and approved in

all respects and is made a part of this Order for all purposes, including appellate review.
(2)

Plaintiffs Verified Motion for Attorney's Fees and Costs be GRANTED in part and

DENIED in part.

(3)

Plaintiff is awarded $218,616 in attorneys' fees pursuant to § 627.428, Fla. Stat.,

together with post-judgment interest thereon at the rate of .17 percent from the date of the original
Judgment. s
(4)

Plaintiff is awarded $12,464.32 in costs pursuant to Rule 54(d), Federal Rules of

Civil Procedure, together with post-judgment interest thereon at the rate of .17 percent from the date

S Interest on the fee award is calculated from the date of the act triggering Plaintiff's entitlement to an award
of attorneys' fees. See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 930-31 (Fla. 1996)
("interest accrues from the date the entitlement to attorneys fees is fixed through agreement, arbitration award, or court
determination, even though the amount of the award is not yet determined"); see also Bremshey v. Morrison, 621 So.2d
717,718 (Fla. 51h DCA 1993); Inacio v. State Farm Fire & Casualty Co., 550 So.2d 92, 97-98 (Fla. 1st DCA 1989).

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of the original Judgment. 6 The Clerk's prior taxation of costs against Defendant in the amount of
$13,502.12 is VACATED.
(5)

The Clerk is directed to enter a Second Amended Final Judgment in favor of Plaintiff

and against Defendant for the total sum of $2,834,363.58,7 plus post-judgment interest thereon
accruing at the rate of .17 percent from June 27, 2011.
't!:

DONE AND ORDERED in chambers this

1$

day of March, 2012.

Copies to:
Counsel of Record

6 When a district court taxes costs against a losing party, the award of costs bears interest from date of original
judgment. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1052 (lIth Cir. 1994); Georgia Ass'n of
Retarded Citizens v. McDaniel, 855 F.2d 794, 799 (1 ph Cir. 1988).
7 The sum due Plaintiff is based on the total of the original judgment ($2,215,914.77), prejudgment interest
($387,368.49), attorneys' fees ($218,616.00), and costs ($12,464.32).

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