Bank of America, N.A. v. Crofton et al

Filing 52

ORDER: Plaintiff Bank of America, N.A.'s Motion for Attorneys' Fees 48 is GRANTED, and Plaintiff is entitled to $33,574.50 in attorneys' fees. Plaintiff's Proposed Bill of Costs 49 is GRANTED, and as a result, $435.00 should be taxed. Signed by Judge Virginia M. Hernandez Covington on 7/15/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BANK OF AMERICA, N.A.,
Plaintiff,
v.

Case No.: 8:14-cv-1558-T-33AEP

KEVIN D. CROFTON, individually
and as co-trustee of THE KEVIN
D. CROFTON BUSINESS TRUST,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Bank of America, N.A.’s Motion for Attorneys’ Fees (Doc. #
48), which was filed on June 25, 2015. Pursuant to Local Rule
3.01(b) and Rule 6(d), Fed. R. Civ. P., the deadline for
Defendants Kevin D. Crofton, individually and as co-trustee
of the Kevin D. Crofton Business Trust to file a response in
opposition to the Motion was, at the latest, July 13, 2015.
A review of the file reveals that Defendants, who are
represented

by

counsel,

failed

to

file

a

response

to

Plaintiff’s Motion in the time provided by the Rules or at
any point since. Accordingly, the Court considers the Motion
as unopposed. Upon due consideration of the Motion and the
record before the Court, the Court grants Plaintiff’s Motion.

I.

Background
On

June

26,

2014,

Plaintiff

initiated

this

action

against Defendants Kevin D. Crofton, individually; Kevin D.
Crofton, as co-trustee of the Kevin D. Crofton Business Trust;
and Howard A. Gordon, as co-trustee of the Kevin D. Crofton
Business Trust. (Doc. # 1). Plaintiff filed a Notice of
Voluntary Dismissal of Defendant, Howard A. Gordon, as cotrustee of the Kevin D. Crofton Business Trust, Without
Prejudice on September 5, 2014. (Doc. # 20). The Court
dismissed Howard A. Gordon as a party in this matter on
September 5, 2014. (Doc. # 21).
On May 4, 2015, Plaintiff filed a Motion for Final
Summary Judgment (Doc. # 43), which this Court granted on
June 11, 2015 (Doc. # 45). Thereafter, the Clerk of the Court
entered

a

Defendants

judgment
in

the

in
total

favor

of

amount

Plaintiff
of

and

against

$3,464,623.45,

plus

interest that continues to accrue daily. (Doc. # 46).1 Thus,
Plaintiff is the prevailing party in this matter.
On June 25, 2015, Plaintiff filed the present Motion
requesting an attorneys’ fee award of $33,574.50. (See Doc.

1

The Clerk entered an Amended Judgment on June 30, 2015, to
add language to aid Plaintiff in its execution of the judgment
against Defendants. (See Doc. # 51).

2

# 48). The Motion is supported by the affidavits of David
Tong, Esq. - who was retained to provide an opinion about the
fees sought in this case - and Amanda Buffington, Esq. (See
Doc. ## 48-2, 48-3), as well as a summary of the billing rates
and hours that Plaintiff’s counsel and paralegals billed on
this matter.

Also on June 25, 2015, Plaintiff filed a

proposed bill of cost requesting an award of costs in the
amount of $435.00. (Doc. # 49).
II.

Analysis
A.

Attorneys' Fees

Plaintiff explains that the attorneys’ fees sought are
for the work completed by Plaintiff’s attorneys as follows:
Attorney/Paralegal

Rate

Amanda B. Buffinton, Esq.

87.2

$295.00

$25,724.00

$23,151.60

Andrew T. Jenkins, Esq.

21.1

$295.00

$6,224.50

$5,602.05

18.7

$250.00

$4,675.00

$4,207.50

Jolyon Acosta, Esq.

.3

$245.00

$73.50

$66.15

Traci Koster, Esq.

.6

$225.00

$135.00

$121.50

.7

$110.00

$77.00

$69.30

Elaine Elliston (paralegal)

1.8

$110.00

$198.00

$178.20

Joanna Nixon (paralegal)

1.8

$110.00

$198.00

$178.20

$37,305.00

$33,574.50

Anne-Leigh Moe, Esq.

Kristan Long (paralegal)

TOTAL

132.20

3

Amount

Amount
Less 10%

Hours

This Court is afforded broad discretion in addressing
attorneys’ fees issues. See Villano v. City of Boynton Beach,
254

F.3d

1302,

1305

(11th

Cir.

2001)(“Ultimately,

the

computation of a fee award is necessarily an exercise of
judgment because there is no precise rule or formula for
making these determinations.”)(internal citation omitted).
The

fee

applicant

bears

the

burden

of

establishing

entitlement to the hours requested as well as to the hourly
rate.

Webb v. Bd. of Educ. of Dyer Cnty., 471 U.S. 234, 242

(1985). Thus, the fee applicant must produce satisfactory
evidence that the requested rate is within the prevailing
market rate.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Further, the fee applicant must support the number of hours
worked. Id.

If an attorney fails to carry his or her burden,

the Court “is itself an expert on the question [of attorneys'
fees] and may consider its own knowledge and experience
concerning reasonable and proper fees.” Norman v. Hous. Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
Once the Court has calculated the lodestar, it may adjust
the

fee

awarded

upward

or

downward

based

upon

other

considerations, including (1) the time and labor required;
(2) the novelty and difficulty of the issues; (3) the skill

4

required to perform the legal service properly; (4) the
preclusion

of

other

employment

due

to

the

attorney's

acceptance of the case; (5) the customary fee; (6) whether
the fee is fixed or contingent; (7) the amount involved and
the results obtained; (8) the experience, reputation, and
ability of the attorneys; (9) the undesirability of the case;
(10) the nature and length of the professional relationship
with the client; and (11) awards in similar cases. Johnson v.
Ga. Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).
1.

Reasonable Hourly Rate

To calculate the lodestar in this case, the Court must
determine the reasonable hourly rate for Plaintiff’s counsel.
“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, 836 F.2d at 1303 (citation omitted).
Plaintiff bears the burden of producing evidence of the
prevailing market rate, which must “speak to rates actually
billed and paid in similar lawsuits,” and may include the
expert opinions of other attorneys. Id. To satisfy this
burden, Plaintiff has supplied the affidavit of David Tong,
Esq. (Doc. # 48-2), as well as a detailed memorandum, which
includes citations to relevant legal authorities.

5

Attorney Tong explains that he has been practicing law
in Florida since 1984, and is a partner with Saxon Gilmore &
Carraway,

P.A.

in

Tampa

Florida.

(Id.).

Attorney

Tong

indicates that his practice “presently concentrates in areas
of

real

estate

litigation,

commercial

litigation,

and

bankruptcy/creditors' rights and [he] routinely represent[s]
lenders and creditors in complex litigation, bankruptcy, and
real estate matters. [He has] litigated numerous complex
foreclosure actions involving commercial real estate.” (Id.).
Upon reviewing the file of Plaintiff’s counsel, which
included

counsels’

time

records,

communicating

with

Plaintiff’s counsel regarding the case, and reviewing the bar
admission dates of the billing lawyers in this matter as well
as Rule 4-1.5 of the Rules Regulating the Florida Bar,
Attorney

Tong

opines

that:

(1)

$295.00

per

hour

is

a

reasonable rate for the services of Amanda B. Buffington and
Andrew T. Jenkins as counsel in this action; (2) $250.00 per
hour is a reasonable rate for the services of Anne-Leigh Moe
as

counsel

in

this

action;

(3)

$245.00

per

hour

is

a

reasonable rate for the services of Jolyon Acosta as counsel
in this action; (4) $225.00 per hour is a reasonable rate for
the services of Traci Koster as counsel in this action; and

6

(5) $ 110.00 per hour is a reasonable rate for paralegal time
in the present cause of action.

(Id.).

Upon due consideration, the Court determines that the
requested hourly rates are reasonable. Specifically, upon
review of the case law, evidence, and affidavits in support
of the Motion, the Court finds the rate charged by Plaintiff’s
counsel – given their numerous years of experience - is
reasonable

given

the

complexity

of

this

case

and

the

prevailing market rates for attorneys of similar experience.
Likewise, the requested hourly rates of $110.00 for Kristan
Long, Elaine Elliston, and Joanna Nixon, as paralegals, are
inherently reasonable. See, e.g., Indyne, Inc. v. Abacus
Tech. Corp., No. 6:11-cv-137-Orl-22DAB, 2013 U.S. Dist. LEXIS
185422, at *55 (M.D. Fla. Dec. 6, 2013)(“For litigation
related work performed in 2011, rates ranging up to $400 per
hour for senior counsel or partner level work and $175 to
$225 for junior attorneys were prevailing in the Middle
District.”).
2.

Reasonable Hours Expended

Next, the Court must determine the number of reasonable
hours expended by Plaintiff’s counsel while working on this
case. “Fee applicants must exercise . . . ‘billing judgment,’
that means they must exclude from their fee applications

7

‘excessive,
ACLU

of

redundant,

Ga.

v.

or

Barnes,

otherwise
168

F.3d

unnecessary
423,

428

hours.’”

(11th

Cir.

1999)(quoting Hensley, 461 U.S. at 434). Thus, fee applicants
must exclude hours “that would be unreasonable to bill a
client and therefore to one's adversary irrespective of the
skill, reputation or experience of counsel.” Norman, 836 F.2d
at 1301 (emphasis in original).
of

reasonable

hours

is

This means that the “measure

determined

by

the

profession's

judgment of the time that may be conscionably billed and not
the least time in which it might theoretically have been
done.” Id. at 1306. Exclusions for unnecessary or excessive
time expended are left to the discretion of the Court. See
Id. at 1301.
Upon

review

of

the

detailed

billing

summary

and

memorandum filed in support of the Motion, the Court concludes
that the time billed was not excessive. The Court concurs
with Attorney Tong’s assessment that, “[b]ased upon the facts
and

circumstances

of

the

case

.

.

.

132.2

hours

is

a

reasonable amount of time devoted to the representation of
Plaintiff in this action.” (Doc. # 48-2). The Court has also
considered each of the factors enumerated in Johnson, 488
F.2d at 717-19.

8

Further, the Court acknowledges Attorney Buffington’s
affidavit statement that “Bush Ross, P.A. provided a 10%
discount to [Plaintiff] in this matter.

The 10% discount has

.

the

.

.

already

been

subtracted

from

fees

sought

in

[Plaintiff’s] Motion for fees.” (Doc. # 48-3).
After due consideration, and in light of the fact that
Defendants

failed

Plaintiff’s

to

requested

file

a

relief,

response
the

in

Court

opposition

determines

to

that

Plaintiff is entitled to attorneys' fees in the requested
amount of $33,574.50.
B.

Costs

In conjunction with its Motion, Plaintiff submitted a
proposed bill of costs amounting to $435.00. (See Doc. # 49).
Plaintiff categorizes its costs as follows (1) fees of the
Clerk and (2) fees for service of summons and subpoena. (Id.).
The Court will address each category in turn.
1. Standard for Awarding Costs
“Federal Rule of Civil Procedure 54(d)(1) prescribes an
award of costs for a prevailing party unless a federal
statute, the Federal Rules of Civil Procedure, or a court
order provides otherwise.” Tempay Inc. v. Biltres Staffing of
Tampa Bay, LLC, No. 8:11-cv-2732-T-27AEP, 2013 WL 6145533, at
*2 (M.D. Fla. Nov. 21, 2013); see Durden v. Citicorp Trust

9

Bank, FSB, No. 3:07–cv–974–J–34JRK, 2010 WL 2105921, at *1
(M.D. Fla. Apr. 26, 2010)(stating that Fed. R. Civ. P. 54
establishes a presumption that costs should be awarded unless
the district court decides otherwise)(citing Chapman v. Al
Transp., 229 F.3d 1012, 1038 (11th Cir. 2000)). However, “the
district court’s discretion not to award the full amount of
costs incurred by the prevailing party is not unfettered;”
the district court must articulate a sound reason for not
awarding full costs. Chapman, 229 F.3d at 1039 (internal
citations omitted).
Specifically,
following

may

be

pursuant
taxed

as

to

28

costs

U.S.C.

under

§

Fed.

1920,
R.

Civ.

54(d)(1):
(1)
(2)

(3)
(4)

(5)
(6)

Fees of the clerk and marshal;
Fees for printed or electronically recorded
transcripts necessarily obtained for use in
the case;
Fees and disbursements for printing and
witnesses;
Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in the
case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees,
expenses,
and
costs
of
special
interpretation services under section 1828 of
this title.

10

the
P.

28 U.S.C. § 1920; see Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 440-41 (1987), superseded on other grounds
by 42 U.S.C. § 1988(c) (finding that 28 U.S.C. § 1920 defines
the term “costs” as used in Rule 54(d) and enumerates the
expenses that a federal court may tax as a cost under the
discretionary authority granted in Rule 54(d)).
The party seeking an award of costs or expenses bears
the burden of submitting a request that enables a court to
determine what costs or expenses were incurred by the party
and the party's entitlement to an award of those costs or
expenses. Loranger v. Stierheim, 10 F.3d 776, 784 (11th Cir.
1994). “When challenging whether costs are properly taxable,
the burden lies with the losing party, unless the knowledge
regarding the proposed cost is a matter within the exclusive
knowledge

of

the

prevailing

party.”

Assoc.

for

Disabled

Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp.
2d 1272, 1288 (M.D. Fla. 2005).
2. Fees of the Clerk
Plaintiff seeks to recover fees paid to the Clerk in the
amount of $400.00. (Doc. # 49). A review of the record reveals
that

$400.00

was

the

cost

associated

with

Plaintiff

initiating this action against Defendants. Thus, the Court
determines that Plaintiff’s request to recover fees paid to

11

the Clerk is appropriate. Accordingly, Plaintiff is entitled
to the $400.00 cost for the filing fee in this action.
3. Fees for Service of Summons and Subpoena
Plaintiff also seeks to recover “[f]ees for service of
summons and subpoena” in the amount of $35.00. (Doc. # 49).
“The fees for service of process by private process servers
are recoverable under § 1920, as long as the fees do not
exceed the amount charged by the United States Marshal for
service of process.” J.G. v. Carnival Corp., No. 12-21089CIV, 2013 WL 5446412, at *4 (S.D. Fla. Sept. 28, 2013). The
Marshal charges $65.00 per hour plus travel costs and other
out-of-pocket expenses for serving process. See 28 C.F.R. §
0.114(a)(3).
Here, Plaintiff seeks to recover $35.00 in “fees for
service of summons and subpoena.” (Doc. # 49). This amount is
within the monetary threshold set forth above. Therefore, the
Court finds that Plaintiff is entitled to $35.00 for “fees
for service of summons and subpoena.”
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Bank of America, N.A.’s Motion for Attorneys’
Fees (Doc. # 48) is GRANTED, and Plaintiff is entitled
to $33,574.50 in attorneys’ fees.

12

(2)

Plaintiff’s

Proposed

Bill

of

Costs

(Doc.

#

49)

is

GRANTED, and as a result, $435.00 should be taxed.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of July, 2015.

Copies: All Counsel of Record

13