LESLIE SMITH v. PSYCHIATRIC SOLUTIONS INC et al

Filing 378

ORDER adopting 354 Second Report and Recommendation. Pla is directed to pay Dfts a total of $53,925.98 in attorneys' fees under Fla. Stat. § 448.104. Johnson is directed to pay Dfts a total of $5,338.20 in attorneys' fees in connection with Pla's unsuccessful Fed. R. Civ. P. 11 motion. The clerk shall enter Judgment accordingly. Signed by CHIEF JUDGE M CASEY RODGERS on May 20, 2013. (kvg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
LESLIE SMITH,
Plaintiff,
v.

Case No.: 3:08cv3/MCR/EMT

PSYCHIATRIC SOLUTIONS,
INC., et al.,
Defendants.
________________________/
ORDER
This cause comes on for consideration upon the magistrate judge’s Report and
Recommendation dated January 31, 2013 (doc. 354). The parties have been furnished
a copy of the Report and Recommendation and have been afforded an opportunity to file
objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de
novo determination of any timely filed objections.
Having considered the Report and Recommendation, and any objections thereto
timely filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this order.1
2.

Plaintiff is directed to pay Defendants a total of $53,925.98 in attorneys’ fees

under Fla. Stat. § 448.104.

1

In her objection to the m agistrate judge’s Report and Recom m endation, Plaintiff challenges the
award of $53,925.98 as excessive because it exceeds her annual incom e of $50,000. According to Plaintiff,
such an award is “ruinous” and should be reduced to 42% of her annual incom e, as she suggests was done
in Bush v. Ratheon Co., No. 8:07-CV-02087-T-24-AEP, 2010 W L 2044887 (M.D. Fla. May 21, 2010). In that
case, the court awarded fees of $42,358.68, which Plaintiff contends was roughly 42% of the purported
$100,000 annual salary of the sanctioned party. Plaintiff’s reliance on Ratheon is m isplaced. Although the
plaintiff in Ratheon had an annual salary of $100,000 while em ployed by the defendant, he had been
term inated from that position and was m aking less than $40,000 at the tim e the court im posed the sanction.
Id. at *7. Thus, contrary to Plaintiff’s assertion, the award in Ratheon actually exceeded the plaintiff’s incom e
and, in that respect, is m aterially indistinguishable from the award in this case. The undersigned also notes,
as did the court in Ratheon, that the only evidence of Plaintiff’s alleged inability to pay is Plaintiff’s unsupported
assertion that she m akes $50,000 per year. Plaintiff offered no additional evidence of her financial m eans
or lack thereof. In Ratheon, the absence of such evidence was a prim ary factor in the court’s refusal to reduce
the award based on the sanctioned party’s alleged inability to pay. Id. at *7–8.

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3.

Johnson is directed to pay Defendants a total of $5,338.20 in attorneys’ fees

in connection with Plaintiff’s unsuccessful Fed. R. Civ. P. 11 motion.
4.

The clerk shall enter Judgment accordingly.

DONE AND ORDERED this 20th day of May, 2013.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:08cv3/MCR/EMT