Broadcast Music, Inc. et al v. Evie's Tavern Ellenton, Inc. et al

Filing 84

ORDER granting 81 Motion for Attorney Fees in the amount of $16,055.00 in favor of Plaintiffs and against Defendants Evie's Tavern Ellenton, Inc. and Michael Evanoff, consistent with this order. The Clerk of Court is directed to enter judgment for the same. Signed by Judge Elizabeth A. Kovachevich on 4/28/2015. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BROADCAST MUSIC, INC.,
et al,

Plaintiffs,

vs.

CASE NO. 8:11-cv-02056-EAK-TBM

EVIE’S TAVERN ELLENTON, INC.,
and MICHAEL EVANOFF,
Defendants.
_________________________________/

ORDER GRANTING ATTORNEYS’ FEES
This cause is before the Court on Appellees’ Amended Motion for Attorneys’ Fees
(Doc. 81), and Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees (Doc.
82). The Court has carefully reviewed the Motion, the Response, and the parties’ related
submissions. For the reasons set forth below, the Court finds that Plaintiffs are entitled to
an award of fees in the amount of $16,055.00.

BACKGROUND
On September 30, 2013, the Court entered judgment in favor of Plaintiffs on five
of six alleged copyright infringement claims. (Doc. 58) Subsequently, the Defendants
filed an appeal of the orders of this Court. The appeal has been concluded and the
appellate court affirmed this court’s orders granting summary judgment and awarding
damages, attorneys’ fees, and a permanent injunction including the determination that this
Court correctly granted fees based on the fact that “the infringement was done with
knowledge, resulted in hotly contested legal action, and because of the effort Appellees
exerted prior to this lawsuit. The district court also found that because Appellants’
arguments proved futile, and the matter could have been resolved for a relatively small
amount of money...” (Doc. 79, pg. 12).
DISCUSSION
I. Attorneys’ Fees
In evaluating Plaintiffs’ request for attorneys’ fees, the Court must calculate the
lodestar, which is the number of reasonable hours spent working on the case multiplied
by a reasonable hourly rate. Loranger v. Stierham, 10 F.3d 776, 781 (11th Cir. 1994). The
Court also determines whether an adjustment to the lodestar is necessary based on the
results obtained. ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). The fee
applicant bears the burden of establishing entitlement to an award and documenting
appropriate hours and hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

A. Reasonable Hourly Rate
To determine whether an attorney’s hourly rate is reasonable, the Court must
compare it to “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.” Norman
v. Hour. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The burden rests on
the party seeking attorneys’ fees to produce “satisfactory evidence that the requested rate
is in line with prevailing market rates.” Id. The Court may also consider the twelve
factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974). Those factors include: 1) the time and labor required; 2) the novelty and
difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4)
the preclusion of other employment by the attorney due to acceptance of the case; 5) the
customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by
the client or the circumstances; 8) the amount involved and the results obtained; 9) the
experience, reputation, and ability of the attorneys; 10) the undesirability of the case; 11)
the nature and length of the professional relationship with the client; and 12) awards in
similar cases. Johnson, 488 F.2d at 717-18.
The Court in awarding attorneys’ fees earlier in the case carefully reviewed the
supporting documents offered by both parties and found the hourly rate of attorney
Zachary Messa to be reasonable at $250.00 an hour. But the Court lowered the hourly
rate of attorney Frank Jakes downward to $300.00. The Court stated: “The Court’s
decision to lower the hourly rate of Mr. Jakes is in no way a marker of the quality of the

legal services he provided. Mr. Jakes is an exceptional litigator. Rather a fee rate of
$300.00 an hour is in line with this Court’s understanding of the facts of this case as
applied to the Johnson factors.” The Court finds no reason to recede from that previous
decision, therefore, Mr. Jakes hourly rate is set an $300.00 an hour.
B. Reasonable Hours Spent
When determining the hours reasonably expended by counsel, the Court should
exclude those hours that are “excessive, redundant, or otherwise unnecessary” and the
time expended on “discrete and unsuccessful claims.” Norman, 836 F.2d at 1301 (quoting
Hensley, 461 U.S. at 434). Further, an award of fees for time spent by two or more
attorneys is proper as long as it reflects the distinct contribution of each lawyer to the
case. Pelc v. Nowak, 2013 WL 3771233 at * 4 (M.D. Fla. July 17, 2013) (quoting Ward v.
Kelly, 515 F.2d 908, 912 n. 11 (5th Cir. 1975)). The Court finds that Plaintiffs’ attorneys
have not billed for “excessive, redundant, or otherwise unnecessary” hours in resolving
this matter.
The Court does not find the objections of the Defendants to be well-taken as to the hours
expended. The Defendants asks the Court to deny all fees or if not that to deny all of Mr.
Jakes’ fee requests and to lower the hours of Mr. Messa to somewhere between twentytwo to thirty-one compensable hours. The Court finds that the Appellees request for
hours are well-taken based on the hourly rates which are being applied and the Court will
allow for those hours to be awarded.

C. Award
Based on the foregoing discussion, the Court finds that Appellees are entitled to
recover for 36.5 hours of work at a rate of $250.00 per hour for Mr. Messa (total of
$9,125.00), and for 23.1 hours of work at a rate of $300.00 per hour for Mr. Jakes (total
of $6,930.00). Plaintiffs are entitled to a total fee award of $16,055.00. Accordingly it is
ORDERED that Plaintiffs’ Motion for Attorneys’ Fees is GRANTED in the
amount of $16,055.00 in favor of Plaintiffs and against Defendants Evie’s Tavern
Ellenton, Inc. and Michael Evanoff, consistent with this order. The Clerk of Court is
directed to enter judgment for the same.
DONE and ORDERED in Chambers, in Tampa, Florida this 28th day of April,
2015.

Copies to: All Parties and Counsel of Record