TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC et al

Filing 242

ORDER granting 143 Motion for Attorney Fees. Signed by Judge James D. Whittemore on 10/30/2013. (KE)

,.
j

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

TEMPAY INC.,
Plaintiff,
vs.

Case No. 8:11-cv-2732-T-27AEP

BILTRES STAFFING OF TAMPA BAY, LLC,
OTTO BILTRES, CONSTANDINA I.
BILTRES, and PFG LOANS, INC.,
Defendants,

----------------------------------------------------------------'
ORDER
BEFORE THE COURT is Plaintiffs Motion for An Award of Attorneys' Fees and
Memorandum of Law in Support (Dkt. 143). Defendants Biltres Staffing of Tampa Bay, LLC
("Biltres Staffing"), Otto Biltres, and Constandina Biltres (collectively, the "Biltres Defendants")
have filed objections to the Motion (Dkt. 148). TemPay was ordered to file detailed billing records
in support of its Motion (Dkt. 183 ), which it submitted on August 28, 2013 (Dkt. 191 ). Defendants
filed a Supplemental Response (Dkt. 217). Upon consideration, Plaintiffs Motion for An Award of
Attorneys' Fees is GRANTED.
TemPay asserted claims against Biltres Staffing and the Biltres Defendants for fraud, fraud
in the inducement, breach of contract, violations of the Florida Deceptive and Unfair Trade Practices
Act, and violations of the Florida RICO Act. (See Dkt. 32.) TemPay also asserted a fraudulent
transfer claim against the Biltres Defendants and PFG Loans, Inc. (!d.) Summary judgment was
entered against Otto Biltres, Biltres Staffing, and PFG Loans on each of TemPay's claims. (Dkt.
1

128.) The remaining issues ofthe liability ofConstandina Biltres and damages were tried before the
Court on June 4, 2013. (Dkt. 136.) Judgment on liability was granted in favor ofTemPay on all
counts ofthe Complaint. (Dkt. 141.) Damages against Biltres Staffing and the Biltres Defendants
were awarded in amounts ranging from $1,150,588.60 to $2,769,135.57. (/d.) Damages against
Biltres Staffing, the Biltres Defendants, and PFG Loans, Inc. were awarded in the amount of
$28,569.43 on TemPay's fraudulent transfer claim. (/d.) Judgment on entitlement to and amount
of attorneys' fees and taxable costs was reserved. (/d.)
TemPay now requests reasonable attorneys' fees in the amount of$355,268.60 against Biltres
Staffing and the Biltres Defendants pursuant to Section 8.1 of the April20, 2011 Master Factoring
Agreement, the Guaranty signed by the Biltres Defendants, and Florida Statute§ 501.2105. (Dkt.
143 at 1.) Defendants do not object to Plaintiffs entitlement to attorney's fees. (Dkt. 148 at 1.)
AMOUNT OF ATTORNEYS' FEES AND COSTS

A.

The Lodestar Method

The starting point in determining a reasonable award of attorney's fees is calculating the
"lodestar," which is the number ofhours reasonable expended multiplied by a reasonable hourly rate.

Am. Civil Liberties Union ofGa. v. Barnes, 168 F.3d 423,427 (11th Cir. 1999); Dial HD, Inc. v.
ClearOne Commc 'ns., Inc., 2013 WL 5225435, at *2 (11th Cir. Sep. 18, 2013). "[T]he fee applicant
bears the burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424 (1983).

i.

Reasonable Hourly Rate

"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

2

/

v. Hous. Auth. ofMontgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). "The general rule is thatthe
relevant market for purposes of determining the reasonable hourly rate for an attorney's services is
the place where the case is filed." Am. Civil Liberties Union ofGa. v. Barnes, 168 F.3d 423, 437
(11th Cir. 1999) (internal quotes omitted); Ceres Environ. Servs., Inc. v. Colonel McCrary Trucking,

LLC, 476 Fed App'x 198, 202 (11th Cir. 2012). In determining the reasonableness of the hourly
rate, the court may consider the twelve Johnson factors. 1 Johnson v. Ga. Hwy. Express, Inc., 488
F.2d 714,717-19 (5th Cir. 1974). The court may also consider its own knowledge and experience
in its determination of a reasonable fee. Norman, 836 F.2d at 1303. Work by paralegals is
recoverable "only to the extent that the paralegal performs work traditionally done by an attorney."

Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988).
TemPay submits the affidavit of Charles M. Harris to support its fees request. (Dkt. 143 at
14-17 .) TemPay proposes the following reasonable hourly rates for its attorneys and one paralegal:
(1) $3 7 5 per hour for Charles Harris, a shareholder ofTrenam Kemker, Scharf, Barkin, Frye, O'Neill

& Mullis, P .A. with twenty-one years of experience; (2) $230 per hour for Stephanie Leuthauser, an
associate at Trenam Kemker with five and one half years of experience; (3) $220 per hour for Adam
Butkus, an associate with four years of experience; (4) $330 per hour for Ed Carlstedt, a shareholder
with thirteen years of experience; and ( 5) $190 per hour for Suzan Martin, a paralegal with more than
twenty years of experience. (/d. at 10, 15-16.) Defendants do not object to these hourly rates and
the Court finds that they are reasonable.

1

The Johnson factors are: ( 1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney
due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and the ability ofthe attorney; (10) the "undesirability" ofthe case; (11) the nature and length
ofthe professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

3

/

ii.

Number of Hours Reasonably Expended

TemPay submits 1,302 hours as the reasonable number ofhours. (Dkt. 143 at 17 .) TemPay's
billing records (Dkt. 196-1) contain the breakdown of these house with descriptions of the work
performed. Defendants object to three categories of hours expended: (1) fees for time Plaintiffs
counsel spent conferring with the United States Attorney's Office and other federal authorities; (2)
time spent researching and preparing a lawsuit against Bank of America; and (3) time spent for items
that have been redacted. 2 (Dkt. 217 at 2.)
"An attorney is not entitled to be paid in a case for the work he or another attorney did in
some other case." Barnes, at 430. Thus, TemPay will not be awarded fees for time spent conferring
with the United States Attorney's Office and other federal authorities or for time spent researching
and preparing a lawsuit against Bank of America.
As to time spent for items that have been redacted, TemPay will be awarded the portion of
its fees associated with billing entries which contain sufficient particularity to assess reasonableness
of the time expended. See id. TemPay, as the applicant for attorneys' fees and costs, bears the
burden of documenting the time spent on litigation and must provide specific and detailed evidence
from which a determination of the reasonableness of the hourly rates for the work performed can be
made. See Barnes, 168 F.3d at 427; Norman, 836 F.2d at 1299. However, "objections and proof
from fee opponents concerning hours that should be excluded must be specific and reasonably
precise." Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301). Because many of the
redacted entries make it difficult, if not impossible, to determine whether the time associated with

2

Defendants submit a copy ofTemPay's billing records with the time entries to which they object
highlighted. (Dkt. 217-1.)

4

"

those entries is objectionable as time spent conferring with the United States Attorney's Office and
other federal authorities and/or on the Bank of America lawsuit, TemPay has not met its burden, and
Defendants consequently are unable to challenge with precision those entries. Thus, the redacted
time entries that do not exclude the possibility that the time was spent conferring with the United
States Attorney's Office or other federal authorities or on the Bank of America lawsuit are not
included in the fee award. 3 The fully redacted entries are also not included.
Based on a review ofTemPay's billing records, fees for the following hours which the Court
finds to be reasonable, are awarded:

Attorney/Paralegal

Hours

Rate

Total

Charles Harris

319.6

$375

$119,850.00

Stephanie Leuthauser

712.4

$230

$163,852.00

Ed Carlstedt

21

$330

$6,930.00

Adam Butkus

0

$220

$0

Suzan Martin

77.25

$190

$14,677.50
TOTAL:

$305,309.50

Based on the foregoing, Plaintiffs Motion for An Award of Attorneys' Fees (Dkt. 143) is
GRANTED to the extent that PlaintiffTemPay, Inc. is awarded $305,309.50 in attorneys' fees. The
Clerk is directed to enter judgment awarding Tempay's attorneys' fees as set forth above.
DONE AND ORDERED this

30~ay of October, 2013.
S D. WHITTEMORE

ted States District Judge
TemPay did not request an in camera review of these entries, nor did it request an opportunity to respond
to Defendants' objections. There are a number of unredacted entries to which Defendants object that include a "Ms.
Calderon." However, Defendant's objection is not specific enough for this time to be excluded.
3

5