Keen v. Bovie Medical Corporation
Filing
223
ORDER denying 205 Motion for Attorney Fees; granting in part and denying in part 206 Motion for Attorney Fees. Signed by Judge Susan C Bucklew on 1/27/2014. (GMS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LEONARD KEEN,
Plaintiff,
Case No. 8:12-cv-305-T-24-EAJ
v.
BOVIE MEDICAL CORPORATION,
Defendant.
_____________________________________/
ORDER
This cause comes before the Court on Defendant Bovie Medical Corporation’s Motion for
Attorneys’ Fees (Dkt. 205), which Plaintiff Leonard Keen opposes (Dkt. 211). Also before the
Court is Keen’s Motion for Attorneys’ Fees. (Dkt. 206.) Bovie filed an opposition in response
(Dkt. 216), and Keen filed a reply (Dkt. 222). As explained below, Bovie’s motion is denied and
Keen’s motion is granted in part and denied in part.
I.
BACKGROUND
This litigation stems from Keen’s termination from his position as in-house counsel and
executive officer at Bovie. Keen sought to recover his severance payment under his employment
contract. Bovie contended that it did not owe Keen severance because of Keen’s pre-termination
conduct. Bovie also contended that it was damaged by Keen’s post-termination conduct in deleting
the contents of the hard drive of a laptop owned by Bovie.
Keen’s amended complaint alleged seven claims against Bovie: (1) breach of contract, (2)
breach of good faith and fair dealing, (3) unpaid wages, (4) violation of the Florida Whistleblower
Act (“FWA”), (5) breach of agreement (specific performance), (6) contractual indemnification,
and (7) violation of ERISA. (Dkt. 34.)1
Bovie filed seven counterclaims against Keen: (1)
violation of the Computer Fraud and Abuse Act, (2) breach of fiduciary duty as to Keen’s
employment agreement, (3) breach of fiduciary duty as to Keen’s deletion of the contents of the
laptop hard drive, (4) conversion, (5) fraud in the inducement, (6) declaratory judgment, and (7)
attorneys’ fees under Florida Statute § 448.104.
Each party filed cross-motions for summary judgment.
Bovie moved for summary
judgment on its breach of fiduciary duty and declaratory judgment counterclaims, and Keen’s
breach of contract, unpaid wages, FWA, and ERISA claims. Keen moved for partial summary
judgment on his breach of contract claim and for summary judgment on all of Bovie’s
counterclaims.
On May 7, 2013, the Court granted Bovie summary judgment on Keen’s FWA and ERISA
claims. The Court also granted Keen partial summary judgment on his breach of contract claim
and summary judgment on Bovie’s declaratory judgment counterclaim. The remaining claims and
counterclaims were tried to a jury, which returned a verdict for Keen on his breach of contract and
unpaid wages claims and against Bovie on its counterclaims. The jury awarded Keen damages in
the amount of $622,500. The Court entered a judgment for the amount of damages and for specific
performance of certain of the other contract provisions.
The parties each filed motions for attorneys’ fees. In its motion, Bovie seeks attorneys’
fees as the prevailing party on Keen’s FWA claim under Florida Statute § 448.104. In his motion,
Keen seeks attorneys’ fees as the prevailing party under his employment agreement and as the
prevailing party on his unpaid wages claim under Florida Statute § 448.108.
1
Keen also alleged a claim for tortious interference with employment contract by Andrew Makrides, Bovie’s Chief
Executive Officer. However, the Court granted Bovie’s motion to dismiss this claim against Makrides as well as
Keen’s breach of good faith and fair dealing claim against Bovie.
2
II.
STANDARD
The Court applies Florida law in determining whether to award attorneys’ fees. Bush v.
Raytheon Co., 2009 WL 5128040, at *1 (M.D. Fla. Dec. 21, 2009); James v. Wash Depot Holdings,
Inc., 489 F.Supp.2d 1336, 1338 (S.D. Fla. 2007). However, the Court applies the federal lodestar
method to calculate the amount of reasonable fees, which is the number of reasonable hours spent
working on the case multiplied by a reasonable hourly rate. The party seeking fees bears the
burden of establishing entitlement to the fees, and documenting hours and reasonable rates.
Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
III.
BOVIE’S MOTION FOR ATTORNEYS’ FEES
This Court granted summary judgment on Keen’s FWA claim in favor of Bovie, because
Keen failed to establish a prima facie case for retaliatory termination, which was based on his
emails pertaining to Bovie’s compliance with a federal social security statute and a California law.
Keen v. Bovie Med. Corp., 2013 WL 1899791, at **8-9 (M.D. Fla. May 7, 2013). Bovie seeks
$113,090 in attorneys’ fees as the prevailing party on Keen’s FWA claim.
Florida Statute § 448.104 permits a court to award reasonable attorneys’ fees to the
prevailing party under the FWA. A fees award is not automatic but is left to the court’s discretion.
Brady v. Santa Sweets, Inc., 2007 WL 1245894, *1 (M.D. Fla. Apr. 27, 2007).
Keen argues that because he prevailed on his breach of contract and unpaid wages claims
at trial, Bovie’s success in obtaining summary judgment on Keen’s FWA claim is a “narrow
victory” that does not make Bovie a prevailing party under § 448.104. Keen is essentially arguing
that Bovie cannot be a prevailing party for the purposes of the FWA attorneys’ fees provision
without also prevailing on all of Keen’s other claims. The Court rejects Keen’s argument. An
attorneys’ fees award under § 448.104 applies to claims under the FWA, and Bovie prevailed on
the FWA claim.
3
Keen also cites to one case where the defendant, despite obtaining summary judgment on
the plaintiff’s FWA claim, did not receive an attorneys’ fees award under Florida Statutes §
448.104. James v. Wash. Depot Holdings, Inc., 489 F. Supp. 2d 1336 (S.D. Fla. 2007). Keen
suggests that the James court found that, because the plaintiff prevailed on the remaining claims
at trial, the defendant was not a prevailing party for the purposes of the plaintiff’s FWA claim.
However, James never held that the defendant was not a prevailing party under § 448.104; rather,
the James court simply exercised its discretion under § 448.104 to deny awarding fees to a
prevailing party.
However, even if Bovie is a prevailing party under § 448.104, the Court still has discretion
whether to award Bovie attorneys’ fees. Bovie’s motion for attorneys’ fees fails to address why
this Court should exercise its discretion to award fees. Bovie simply asserts that it is a prevailing
party and requests attorney’s fees in the amount of $113,090.2 Courts have considered the
following factors as guidance as to whether to award attorneys’ fees to a prevailing party in a FWA
case:
(1) the scope and history of the litigation, including whether Plaintiff continued to
prosecute the action despite the presence of an efficient resolution; (2) the parties'
wealth disparity; (3) whether an award of fees would frustrate the Florida
Whistleblower Act’s remedial purpose by deterring worthy claimants; (4) whether
the party’s case was meritorious or frivolous; and (5) whether the opposing party
acted in good or bad faith.
2
Even if the Court were to exercise its discretion to award Bovie attorneys’ fees, Bovie wholly failed to meet its
burden of establishing entitlement to the amount of fees requested. As a few examples of how Bovie’s motion was
completely deficient: (1) the attorneys’ billing entries—stating nothing more than “Analysis,” “Communications,”
“Discovery,” “Pleadings,” “Research,” “Strategize,” “Travel,” or a combination of these categories—fail to show the
reasonableness of the time claimed; (2) Bovie provided no information about 4 of the 5 attorneys seeking fees; and
(3) Bovie failed to address whether its attorneys’ billing rates (ranging from $285.00 to $550.00 in 2013) were
reasonable rates for the Middle District of Florida. Bovie’s method for calculating fees is also baseless. Bovie
calculated the amount of fees sought ($113,090.00) by starting with the amount of fees for time billed up to the Court’s
summary judgment order ($ 678,537.50) and dividing that number by 6 (the number of Keen’s claims). However,
Bovie fails to acknowledge that the $678,537.50 would also apply to the fees attributable to Bovie’s 7 counterclaims,
and thus dividing that number by 6 is baseless.
4
Raytheon, 2009 WL 5128040, at * 2 (citing Blanco v. Transatlantic Bank, 2009 WL 2762361, at
*2 (S.D. Fla. 2009)).
Keen argues that though unsuccessful, his FWA claim had arguable merit. The Court
agrees. Despite failing to establish a prima facie case of retaliation for purposes of summary
judgment, the Court cannot conclude Keen’s FWA claim was frivolous. Courts have declined to
exercise their discretion to award fees despite finding that the plaintiff’s FWA claim was meritless.
See New World Commc’ns of Tampa, Inc. v. Akre, 866 So. 2d 1231, 1236 (Fla. 2d DCA 2003)
(declining to exercise discretion to award fees even though the plaintiff’s position lacked “legal
merit from its inception”); Barnhart v. Lamar Co., L.L.C., 2012 WL 5205877, at *2 (N.D. Fla.
Oct. 22, 2012), aff’d by Barnhart v. Lamar Adver. Co., 523 F. App’x 635, 639-41 (11th Cir. 2013).
Further, while a finding that the plaintiff’s claim was frivolous is not a prerequisite to awarding
fees under the FWA, Akre, 866 So. 2d at 1236, it “may be a factor to consider in the court’s exercise
of its discretion.” Brady, 2007 WL 1245894, at *1 (declining to award attorneys’ fees to the
defendant upon prevailing at summary judgment on the plaintiff’s FWA claim). Nor can the Court
conclude that, based on the record facts and procedural history of this case, Keen acted in bad faith
by pursuing the FWA claim.
The Court is also mindful of the public policy behind the FWA. The FWA “establishes
Florida’s public policy in favor of promoting the disclosure of wrongdoing and the protection of
those who make such disclosures, and while an award of fees to a prevailing [d]efendant is
authorized by the statute, the same statute preserves the Court’s discretion to withhold such awards
when the granting of fees could be a disservice to the remedial purpose of the statute itself.” Bell
v. Georgia-Pac. Corp., 2005 WL 161822, at *1 (M.D. Fla. July 6, 2005).
5
Given that Keen’s FWA claim was neither frivolous nor pursued in bad faith, the Court
declines to exercise its discretion to award attorneys’ fees to Bovie under the FWA. Accordingly,
Bovie’s motion for attorneys’ fees is denied.
IV.
KEEN’S MOTION FOR ATTORNEYS’ FEES
Keen seeks attorneys’ fees as the prevailing party under his employment agreement and
Florida Statutes § 448.08. (Dkt. 34, Ex. B (“The prevailing party to any dispute arising from or
related to this Agreement shall be entitled to recovery of its reasonable attorneys’ fees and court
costs from the other party hereunder.”)); Fla. Stat. § 448.08 (“The court may award to the
prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.”).
Keen seeks to recover $460,492.00 for time expended by 14 attorneys, including himself, from 5
law firms: Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlop, P.A. (“Fisher Rushmer”),
Johnson, Pope, Bokor, Ruppel & Burns LLP (“Johnson Pope”), Jill S. Schwartz & Associates (“Jill
S. Schwartz”); Law Offices of Barry Rigby, P.A. (“Barry Rigby, P.A.”); and Leonard Keen, P.A.:
Law Firm
Name
Position
Rate
Hours
Fisher Rushmer
Richard W. Smith
Shareholder
$250.00
618.00
Fisher Rushmer
John E. Fisher
Shareholder
$250.00
5.50
$1,375.00
Stephanie V. Preston Shareholder
$250.00
5.70
$1,425.00
Fisher Rushmer
Total
$154,500.00
Fisher Rushmer
Shawn T. Jewell
Associate
$200.00
297.40
$59,480.00
Fisher Rushmer
C.J. Bosco
Associate
$200.00
6.30
$1,260.00
Fisher Rushmer
Eric R. Elms
Associate
$200.00
11.60
$2,320.00
Fisher Rushmer
Sandi J. Kracht
Associate
$200.00
0.20
$40.00
Fisher Rushmer
Diane Fuller
Paralegal
$100.00
134.10
$13,410.00
Leonard Keen
Attorney
$250.00
859.00
$214,750.00
Leonard Keen, P.A.
6
Johnson Pope
Charles Buford
Attorney
$330.00
8.00
$2,640.00
Johnson Pope
Charles Buford
Attorney
$300.00
14.80
$4,440.00
Jill S. Schwartz
Nathan McCoy
Attorney
$300.00
4.50
$1,350.00
Jill S. Schwartz
Jill S. Schwartz
Attorney
$385.00
5.20
$2,002.00
Barry Rigby
Attorney
$300.00
5.00
$1,500.00
TOTAL
1975.30
Barry Rigby, P.A.
A.
$460,492.00
Attorneys’ fees for Keen’s own participation in the litigation
Bovie does not dispute that Keen is a prevailing party entitled to attorneys’ fees. Instead,
Bovie argues that Keen is not entitled to recover attorneys’ fees for any time that Keen personally
spent on the litigation. Keen contends that he should recover $214,750 in attorneys’ fees because
his “600+ detailed time entries for his legal work in this case . . . . speak for themselves and clearly
show the significant legal contributions he made.” (Dkt. 222.)
1.
Maulden v. Corbin
Bovie relies on a First District Court of Appeal case, Maulden v. Corbin, as support for its
argument that Keen cannot recover attorneys’ fees for his own time. 537 So. 2d 1085 (Fla. 1st
DCA 1989). In that case, the attorney-litigant (Corbin) initially represented himself in a lawsuit
brought against him by his former client (Maulden).3 After representing himself in the litigation
for two years, Corbin hired outside counsel (Green), who obtained a final judgment several months
later. Id. at 1087.
3
Maulden sued Corbin because she disputed the amount of attorneys’ fees she owed him after he represented her in
her divorce proceedings. Maulden brought a claim for declaratory judgment as to the amount of fees owed, and Corbin
filed counterclaims for, inter alia, breach of contract, unpaid wages, and conversion.
7
After he prevailed in the litigation, Corbin sought attorneys’ fees for Corbin’s own time
and for Green’s time.4 In support of his attorneys’ fees motion, Corbin submitted attorney
affidavits attesting that $7,000 was a reasonable fee for Corbin’s services and $8,000 to $10,300
was reasonable for Green’s services. The trial court awarded a total of $15,000 in attorneys’ fees.
On appeal, the First District Court of Appeal reversed, finding that Corbin could not be
compensated for his own time once he hired outside counsel:
We are of the opinion that the attorney fee awarded Corbin must be apportioned,
for several reasons. We find that Corbin is entitled to a fee for representing himself,
but only until he engaged Green to represent him, at which point Corbin became a
client. Neither the contract between the parties nor any statutory provision
authorizes reimbursement of a litigant, who is represented by counsel, for his own
participation in the litigation in addition to payment of his attorney's fee.
Id. at 1087; see also id. (holding that “Corbin cannot be compensated for his time after hiring
Green,” such as the “6 hours in the FSU Law Library with Green”).
Keen first argues that Maulden is factually distinguishable because, unlike Keen, the
Maulden attorney-litigant hired outside counsel after initially representing himself. This is a
distinction without a difference. Nothing in Maulden indicates that its ruling would change
depending on whether the attorney-litigant initially, or subsequently, hired outside counsel. Next,
Keen argues that Maulden does not announce a per se rule and that Maulden would be different if
the court had considered whether the attorney-litigant provided significant legal services during
the time that he was a client. The Court disagrees. Maulden held that: (1) the attorney-litigant
could not recover fees once he became a client, and (2) the attorney-litigant became a client once
he hired outside counsel. Nothing in Maulden suggests that there would be an exception where
the attorney-litigant is a client but also provided significant legal services.
4
Corbin sought attorneys’ fees pursuant to a provision of a contract. Maulden does not clarify what the attorneys’ fee
provision clause stated.
8
As support for his argument that he can recover for his own time, Keen cites to cases
holding that a pro se attorney-litigant may recover legal fees for representing himself just as if he
had hired outside counsel. However, these cases do not support Keen’s position because they
address the situation where an attorney-litigant represents himself without outside counsel. They
do not address the situation here, where an attorney-litigant has outside counsel—i.e., the attorneylitigant is not pro se. In fact, Maulden aligns with those cases because it held that Corbin, the
attorney-litigant, could recover for his own time while he had no outside counsel.
2.
The Miller Decisions: Miller I and Miller II
Both parties cite to a Fourth District Court of Appeal case, Transflorida Bank v. Miller,
576 So. 2d 752 (Fla. 4th DCA 1991) (“Miller I”), as support for their respective positions:
Additionally, upon remand the trial court should closely examine the attorney's fee
awarded for the time appellee [Miller] expended individually for his legal efforts.
Fees for the appellee attorney’s own services are to be limited to actual legal
services and not awarded for time expended in his capacity as a client. Care must
also be taken to avoid duplication of compensation between appellee and his
counsel.
Id. at 753-54. The reason why the same three sentences could be cited as support for opposite
positions is because Miller I provides no context for its ruling. Miller I was primarily focused on
a different issue (whether the trial court erroneously applied a contingency risk multiplier in
computing the amount of fees awarded under Florida Statutes § 57.105(1)). Nothing in Miller I
indicates whether the attorney-litigant was recovering for his own time while he also had outside
counsel.
The Court’s own research led it to the later case, Miller v. Transflorida Bank, 656 So. 2d
1364 (Fla. 4th DCA 1995) (“Miller II”), which neither Bovie nor Keen cited. Miller II provided
the context that Miller I omitted. Specifically, Miller II clarified that: (1) Miller I was in fact
referring to a situation where the attorney-litigant sought attorneys’ fees not only for the time spent
9
by his outside counsel but also for the time spent by the attorney-litigant himself while outside
counsel was employed, and (2) Miller I instructed the trial court, on remand, to award the attorneylitigant fees for his own time spent on “actual legal services” but not for his time spent “in his
capacity as a client.” Miller II, 656 So. 2d at 1365.
Miller II explained that, on remand, the trial court conducted four hearings over the course
of more than a year, after which it entered an amended judgment awarding attorneys’ fees for the
attorney-litigant’s time, as well as his outside counsel’s time, spent on the trial and appeal.5
Although the trial court found it extremely difficult to categorize when the attorney-litigant’s input
was that of an attorney as opposed to that of a client, the trial court ultimately found that the
attorney-litigant had spent 6 hours of time acting as co-counsel on his trial and 6 hours on his
appeal:
Reasonable attorney fees to be awarded to the Defendant, A. Matthew Miller for
acting as his own co-counsel at both the trial level and on appeal has been extremely
difficult. The evidence presented shows that Mr. Miller is a very successful attorney
in his own right; however, the expert witnesses who were called to testify by each
of the parties as to Mr. Miller's participation in this case as his own co-counsel as
opposed to just a client, have been diametrically opposed. One expert testified Mr.
Miller invested considerable attorney time in this case, and is entitled to a sizeable
fee; while the other expert testified that Mr. Miller in reality only acted as a client
and would be entitled to no fee. It is of course a very difficult line to draw as to
whether when the client is in fact the lawyer himself, whether his input in the case
should be considered as that of the client, or as that of the lawyer. In this case the
Court finds that based upon the evidence presented, including the testimony of Mr.
Miller, that Mr. Miller did put some time into both the trial level and the appeal as
an attorney, and not just a client. Further the Court finds that a reasonable rate of
$200.00 per hour, that Mr. Miller reasonably invested 6 hours of attorney time at
the trial level, and 6 hours attorney time on the appeal. Therefore the Court finds
that a reasonable attorney fee for Mr. Miller's services at the trial level is $1,200.00;
and the Court also finds that a reasonable fee for Mr. Miller's services on the appeal
would be $1,200.00.
5
The trial court awarded fees for 50 hours of the outside counsel’s time spent on the appeal. The trial court also
awarded fees for the outside counsel’s time spent on the trial, but it is unclear how much time was compensated.
10
Miller II, 656 So. 2d at 1365-66. The plaintiff appealed the attorneys’ fees awarded to the attorneylitigant, arguing that “the trial court failed to make adequate findings concerning the time he and
his attorney spent on this case.” Id. at 1366. The Miller II court affirmed, stating that the above
excerpt of the trial court’s findings “dispenses with such argument.” Id.
3.
Analysis
Maulden and Miller agree that an attorney-litigant’s time spent in his capacity as a client
cannot be compensated. Maulden, 537 So. 2d at 1087 (“Corbin is entitled to a fee for representing
himself, but only until . . . Corbin became a client”); Miller I, 576 So. 2d at 754 (“Fees for the
appellee attorney’s own services are . . . not awarded for time expended in his capacity as a
client.”). Thus, the issue of whether an attorney-litigant can recover for his participation in his
own case turns on whether he acted as a client (in which case fees may not be awarded for his
time) or as an attorney (in which case fees may be awarded for his time). However, Maulden and
Miller disagree on the method for determining whether an attorney-litigant acted as a client or an
attorney.
Maulden takes a temporal approach, defining “client” by the point at which the attorneylitigant hires outside counsel: if an attorney-litigant represents himself without outside counsel,
he is acting in his capacity as his own attorney; but, if an attorney-litigant has hired outside counsel,
he is acting in his capacity as a client. Under the Maulden approach, once Keen hired outside
counsel, he became a client and his participation in his case was time expended in his capacity as
a client and therefore unrecoverable. Although Keen suggests that Maulden does not apply where
the attorney-litigant provided significant legal contributions to the litigation, as discussed above,
a plain reading of Maulden does not support Keen’s proposition.
However, Miller appears to define “client” by the nature or type of input provided by the
attorney-litigant: if an attorney-litigant provides “actual legal services” (even if he has also hired
11
outside counsel), he is acting in his capacity as his own attorney. Miller implies that, if an attorneylitigant is not performing legal work, he is acting in his capacity as a client. Miller would seem to
require that the Court go through each of Keen’s billing entries to determine whether the task can
be categorized as legal input provided by an attorney or non-legal input provided by a client. In
asserting that “600+ detailed time entries for his legal work in this case . . . . speak for themselves
and clearly show the significant legal contributions he made,” Keen apparently believes that all of
his submitted billing entries are recoverable legal services.
The Court declines to follow Miller. The reality is that the same task could constitute legal
work or legal services if done by an attorney and could also be categorized as non-legal input if
performed by a client. For example, a client may: (1) discuss litigation strategy with his attorney,
(2) search and provide documents to his attorney in response to discovery requests, and (3) review
and revise motions to be filed with the court. However, these same tasks may be performed by
attorneys in their role as counsel to their clients.
The following entries, selected from Keen’s and his outside counsel’s (Richard Smith)
billing records, demonstrate the problems and show the same time being simultaneously billed as
time expended in Keen’s capacity as an attorney and time expended in Keen’s capacity as a client:
Date
Name
4/17/2012
Keen
Billing Entry
Attending phone conference with Attorney Smith regarding case
management and litigation strategy
Time
0.50
4/17/2012
TELEPHONE CONFERENCE WITH CLIENT TO DISCUSS
SMITH CASE MANAGEMENT [SIC] AND SCHEDULING REPORTS,
DISCOVERY, WITNESSES, AND EXHIBITS
0.60
4/23/2012
KEEN
Attending phone conference with Attorney Smith regarding Initial
Disclosures and pre-trial strategy
0.30
4/23/2012
SMITH
TELEPHONE CONFERENCE WITH CLIENT AS TO CASE
MANAGEMENT REPORT
0.20
12
7/16/2012
7/16/2012
8/20/2012
Keen
Preparing for and attending phone conference with Attorney Smith
regarding discovery issues and strategy
TELEPHONE CONFERENCE WITH CLIENT TO DISCUSS
SMITH WITNESSES TO DEPOSE AND COMPARISON OF
EMPLOYMENT AGREEMENTS
Keen
Attending phone conference with Attorney Smith re discovery,
depositions and litigation strategy
0.70
1.50
0.90
8/20/2012
TELEPHONE CONFERENCE WITH CLIENT TO DISCUSS
DEPOSITIONS, DISCOVERY RESPONSES TO SECOND
SMITH REQUEST TO PRODUCE, MOTION TO SEAL RECORDS,
PRODUCTION OF COMPUTER/PHONES, AND MENTAL
HEALTH RECORDS
1.80
9/28/2012
Attending phone conference with Attorney Smith regarding Order
KEEN on Defendant's Motion to Dismiss (Doc. 41) and Plaintiff's
Opposition (Doc. 44) after reviewing said Order
0.20
9/28/2012
SMITH
10/12/2012
Keen
10/12/2012
SMITH
TELEPHONE CONFERENCE WITH CLIENT REGARDING
COURT'S ORDER
0.90
Attending telephone conference with Attorney Smith regarding
strategy for depositions, further discovery disputes and revisions to
correspondence by Attorney Keen to opposing counsel
0.20
TELEPHONE CONFERENCE WITH CLIENT REGARDING
SARON DEPOSITION
0.40
(Dkt. 206, Exs. B and D.)
The Court believes that Maudlin, which defines client by the point in time that the attorneylitigant hires outside counsel, provides the better approach. Once Keen hired outside counsel
(which was from the outset of litigation), he became a client and his subsequent participation in
the litigation was done in his capacity as a client. Thus, Keen’s time spent discussing strategy with
his outside counsel, for example, is not recoverable because that time was spent by Keen in his
capacity as a client.
13
Accordingly, the Court denies Keen’s motion for attorneys’ fees to the extent that Keen
seeks to recover $214,750.00 in fees for the 859 hours spent in his capacity as a client.
B.
Reasonableness of Outside Counsel’s Attorneys’ Fees
As for Keen’s outside counsel, Bovie argues that Keen has not established that spending
over 1,100 hours is a reasonable amount of time to spend on the litigation.
1.
The Fisher Rushmer firm
Keen meets his burden of establishing his entitlement to the fees for the work performed
by the attorneys and paralegal at the Fisher Rushmer law firm, who were trial counsel in this case.
Keen’s motion for attorneys’ fees provides an affidavit attesting to the experience, skill, or
education of the attorneys and paralegal, and attesting to the reasonableness of their hourly rates
and number of hours charged. Further, the billing entries provide sufficient detail to determine the
nature of the work done for the time claimed. See Norman, 836 F.2d at 1303.
The Court also finds that the hourly rates are reasonable. As for the reasonableness of the
number of hours, Bovie’s global objection to the number of hours—without identifying any
particular reason why that amount of time is unreasonable—is insufficient, and the Court declines
to reduce the amount of time where Bovie wholly fails to explain a basis for doing so. The Court
therefore grants Keen’s motion to the extent that Keen is awarded $233,810.00 in fees for the 1,078
hours spent by the attorneys and paralegal of the Fisher Rushmer law firm on this case.
2.
Attorneys Buford, McCoy, Schwartz, and Rigby
However, Keen’s motion for attorneys’ fees falls somewhat short as to attorneys Buford,
McCoy, Schwartz, and Rigby. Keen’s motion provides no information regarding the experience,
skill, or education of the attorneys, and no affidavit attesting to the reasonableness of their hourly
rates. Without this information, the Court finds that $200.00 is a reasonable hourly rate for Buford,
McCoy, Schwartz, and Rigby.
14
As for the reasonableness of the amount of hours, Buford, McCoy, Schwartz, and Rigby’s
billing entries provide sufficient detail to determine the nature of their work and the time spent.
As before, Bovie’s global objection to the number of hours is insufficient. The billing entries
indicate that the amount of time spent on this case was reasonable and the amount of time will be
approved. The Court therefore grants Keen’s motion to the extent that Keen is awarded fees for
37.5 hours spent by Buford, McCoy, Schwartz, and Rigby at an hourly rate of $200.00.
C.
Summary
In summary, the Court grants Keen’s motion for attorneys’ fees to the extent that it awards
Keen attorneys’ fees at the hourly rates and number of hours as set forth below:
Law Firm
Name
Position
Rate
Hours
Fisher Rushmer
Richard W. Smith
Shareholder
$250.00
618.00
Fisher Rushmer
John E. Fisher
Shareholder
$250.00
5.50
$1,375.00
Fisher Rushmer
Stephanie V. Preston
Shareholder
$250.00
5.70
$1,425.00
Fisher Rushmer
Shawn T. Jewell
Associate
$200.00
297.40
$59,480.00
Fisher Rushmer
C.J. Bosco
Associate
$200.00
6.30
$1,260.00
Fisher Rushmer
Eric R. Elms
Associate
$200.00
11.60
$2,320.00
Fisher Rushmer
Sandi J. Kracht
Associate
$200.00
0.20
$40.00
Fisher Rushmer
Diane Fuller
Paralegal
$100.00
134.10
Leonard Keen, P.A.
Leonard Keen
Attorney
$250.00
0.00
$0.00
Johnson Pope
Charles Buford
Attorney
$200.00
8.00
$1,600.00
Johnson Pope
Charles Buford
Attorney
$200.00
14.80
$2,960.00
Jill S. Schwartz
Nathan McCoy
Attorney
$200.00
4.50
$900.00
Jill S. Schwartz
Jill S. Schwartz
Attorney
$200.00
5.20
$1,040.00
Barry Rigby, P.A.
Barry Rigby
Attorney
$200.00
5.00
$1,000.00
1116.30
15
Total
$154,500.00
$13,410.00
$241,310.00
V.
CONCLUSION
Accordingly, it is ORDERED and ADJUDGED that:
A.
Defendant Bovie Medical Corporation’s motion for attorneys’ fees (Dkt. 205) is
DENIED.
B.
Plaintiff Leonard Keen’s motion for attorneys’ fees (Dkt. 206) is GRANTED IN
PART AND DENIED IN PART: the Court grants the motion to the extent that
the Court awards Keen $241,310.00 in attorneys’ fees; otherwise the motion is
denied.
DONE AND ORDERED at Tampa, Florida, this 27th day of January, 2014.
Copies To: Counsel of Record
16
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