Managed Care Solutions, Inc. v. Essent Healthcare, Inc.
Filing
346
ORDER granting in part and denying in part 298 Motion for Attorney Fees; granting in part and denying in part 298 Motion to Tax Costs. Signed by Magistrate Judge John J. O'Sullivan on 6/27/2011. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-60351-CIV-SEITZ/O'SULLIVAN
MANAGED CARE SOLUTIONS, INC.,
Plaintiff,
vs.
ESSENT HEALTHCARE, INC.,
Defendant.
______________________________/
ORDER
THIS MATTER is before the Court on the Defendant’s Motion for Award of
Attorney’s Fees, Costs, and Expenses and Memorandum of Law in Support Thereof
(DE# 298, 10/6/10) in accordance with a referral by the Honorable Patricia A. Seitz,
United States District Judge pursuant to 28 U.S.C. § 636(b). See Order Following
September 22, 2010 Status Conference, Granting Motion for Default, and Referring
Motion on Attorney’s Fees and Sanctions to Magistrate Judge (DE# 293, 9/23/10).
The parties consented to magistrate judge jurisdiction for the final disposition of this
motion. Id. at 3. Having reviewed the applicable filings and law and as more fully
discussed below, the Defendant’s Motion for Award of Attorney’s Fees, Costs, and
Expenses and Memorandum of Law in Support Thereof (DE# 298, 10/6/10) is
GRANTED in part and DENIED in part in accordance with this Order.
BACKGROUND1
On March 6, 2009, the plaintiff commenced the instant action against the
defendant over the defendant’s alleged breaches of the Professional Services
Agreement (hereinafter “PSA”). See Complaint and Demand for Jury Trial (DE# 1,
3/6/09). The complaint alleged the following causes of action: breach of contract,
breach of implied covenant of good faith and fair dealing and accounting. Id. The
litigation concluded when the plaintiff, shortly before trial was scheduled to
commence, agreed to a default judgment against it. See Order Following September
22, 2010 Status Conference, Granting Motion for Default, and Referring Motion on
Attorney’s Fees and Sanctions to Magistrate Judge (DE# 293 at 1, 9/23/10). On the
same day, the Court issued a Final Judgment (DE# 294, 9/23/10) in favor of the
defendant and against the plaintiff on all counts of the complaint.
The defendant filed the instant motion along with supporting documentation,
declarations and affidavits on October 6, 2010. See Defendant’s Motion for Award of
Attorney’s Fees, Costs, and Expenses and Memorandum of Law in Support Thereof
(DE# 298, 10/6/10); Defendant’s Notice of Filing Declarations and Affidavits in
Support of its Motion for Award of Attorney’s Fees and Expenses and Motion for
Sanctions Against Plaintiff, Managed Care Solutions, Inc.; Robert Ingham, Esq.;
Ingham & Associates, P.A.; Jonathan J. Warrick, Esq.; The Law Office of Jonathan J.
Warrick, P.A.; and Raphael Baruch (DE# 300, 10/6/10). The defendant also moved
for sanctions in a separate motion. See Defendant’s Motion for Sanctions Against
1
To avoid confusion, the Court will refer to the page numbers automatically
assigned by the Court’s CM/ECF system when citing to the record in this case.
2
Plaintiff Managed Care Solutions, Inc.; Robert Ingham, Esq.; Ingham & Associates,
P.A.; Jonathan J. Warrick, Esq.; The Law Office of Jonathan Warrick, P.A.; and
Raphael Baruch and Memorandum of Law in Support Thereof (DE# 299, 10/6/10).2
For the most part, the plaintiff and the plaintiff’s former counsel responded to both
motions in the same filings. These responses, as they pertain to the motion for
attorneys’ fees, are as follows:
•
Partial Response in Opposition to Motion for Sanctions (and Memorandum of
Law) and Incorporated Motion for Enlargement and Extension of Time to
Respond in Full to the Sanction Motion and to the Defendant’s Motion for
Award of Attorney’s Fees and Costs (DE# 301, 10/12/10) filed by the plaintiff;
•
Jonathan J. Warrick, Esq.’s Motion for an Enlargement and Extension of Time
to Respond to Defendant’s Motion for Sanctions Against Jonathan J. Warrick
and to Defendant’s Motion for Award of Attorney’s Fees, Costs and Expenses
as it Relates to the Undersigned (DE# 304, 10/18/10);3
•
Response in Opposition to Motion for Sanctions and Motion for Award of
Attorney’s Fees, Costs and Expenses (DE# 316, 11/12/10) filed by the plaintiff;
•
Former Counsel for Plaintiff, Robert Ingham’s Verified Response in Opposition
to Defendant’s Motion for Sanctions Against Plaintiff Managed Care Solutions,
2
The defendant’s motion for sanctions is the topic of a Report and
Recommendation to be issued separately.
3
Although this motion is captioned as a motion for an enlargement of time, the
motion raises substantive defenses to the relief requested by the defendant and the
undersigned will consider those arguments in ruling on the Defendant’s Motion for
Award of Attorney’s Fees, Costs and Expenses (DE# 298, 10/6/10).
3
Inc., Robert Ingham, Esq., Ingham & Associates, P.A., Jonathan J. Warrick,
Esq., The Law Office of Jonathan J. Warrick, P.A., and Raphael Baruch and
Memorandum of Law in Support [D.E. 299] and Plaintiff’s and Raphael
Baruch’s Response in Opposition to Motion for Sanctions and Motion for Award
of Attorney’s Fees, Costs and Expenses [D.E. 316] (DE# 319, 11/29/10);
•
Reply to Robert Ingham, Esquire’s Verified Response in Opposition to
Defendant’s Motion for Sanctions and Plaintiff’s and Raphael Baruch’s
Response in Opposition to Motion for Sanctions and Motion for Award of
Attorney’s Fees, Costs and Expenses [D.E. 319] (DE# 320, 12/20/10) filed by
the plaintiff;
•
Notice of Filing Exhibit C to D.E. 320 (DE# 322, 12/20/10) filed by the plaintiff
and
•
Notice of Filing Exhibit B to D.E. 320 (DE# 325, 12/21/10) filed by the plaintiff.
The defendant filed its reply on December 20, 2010. See Defendant’s Reply in
Support of its Motion for Fees (DE# 323, 12/20/10).
ANALYSIS
I.
Attorneys’ Fees
A.
Entitlement to Fees
The defendant seeks an award of attorney’s fees and costs in the amount of
$2,081,903.76 as the prevailing party under the PSA. The pertinent provision in the
PSA states as follows:
14.6
Legal Fees and Costs. In the event either Party elects to incur
legal expenses to enforce or interpret any provision of this
Agreement, the prevailing Party shall be entitled to recover from
4
the other Party such legal expenses, including attorney’s fees,
costs, and necessary disbursements, in addition to any other
relief to which such party shall be entitled through all arbitration,
trial and appellate proceedings.
PSA (DE# 1 at 21, 3/6/09). The plaintiff does not dispute that the defendant is the
prevailing party in this litigation. See Partial Response in Opposition to Motion for
Sanctions (and Memorandum of Law) and Incorporated Motion for Enlargement and
Extension of Time to Respond in Full to the Sanction Motion and to the Defendant’s
Motion for Award of Attorney’s Fees, Costs and Expenses (DE# 301 at 3, 10/12/10)
(stating that “[a]s a result of the Final Judgment, the Defendant is the prevailing party
and is entitled to recovery of its reasonable attorneys’ fees and costs pursuant to the
Professional Services Agreement sued upon in this case.”); Transcript 9/22/2010
Hearing (DE# 296 at 17, 10/5/10) (agreeing that the defendant is the prevailing party).
The defendant is entitled to attorneys’ fees and costs against the plaintiff under the
PSA.4
B.
Amount of Fee Award
Having determined that the defendant is entitled to attorneys’ fees in the instant
case, the Court must now determine the amount. The defendant seeks attorneys’ fees
pursuant to a provision in a contract. Contracts are generally construed in accordance
4
The defendant does not seek attorney's fees and costs in the instant motion
against the plaintiff's former counsel. The defendant does seek sanctions in the form of
attorney's fees against the plaintiff, Raphael Baruch and the plaintiff's former counsel in
the Defendant’s Motion for Sanctions Against Plaintiff Managed Care Solutions, Inc.;
Robert Ingham, Esq.; Ingham & Associates, P.A.; Jonathan J. Warrick, Esq.; The Law
Office of Jonathan Warrick, P.A.; and Raphael Baruch and Memorandum of Law in
Support Thereof (DE# 299, 10/6/10). That motion will be addressed in a report and
recommendation.
5
with state law. Eli Lilly and Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1314
(11th Cir. 2010) (stating that the Court “generally appl[ies] state law to such questions
of contract interpretation”). The PSA contains the following clause:
14.9
Applicable Law. The construction, interpretation, and
enforcement of this Agreement shall be at all times and in all
respects be governed by the laws of the State of Florida, without
reference to Florida’s choice of law or conflict of law provisions or
principles.
PSA (DE# 1 at 21, 3/6/09). Thus, Florida law governs the amount of fees the
defendant should recover in the instant case.
The instant action was brought under the Court’s diversity jurisdiction. Florida
law applies in a diversity action where fees are sought pursuant to a state law claim.
Trans Coastal Roofing Co., Inc. v. David Boland, Inc., 309 F.3d 758, 760 (11th Cir.
2002). Florida has adopted the federal lodestar approach to calculating reasonable
attorney's fees. Bell v. U.S.B. Acquisition, Co., 734 So. 2d 403, 406 (Fla. 1999);
Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla.1985).
Under this approach, the Court must consider the number of hours reasonably
expended on this litigation, together with the customary fee charged in this community
for similar legal services in calculating a reasonable attorneys’ fee award. See
Hensley v. Eckerhart, 461 U.S. 424 (1983); Loranger v. Stierheim, 10 F.3d 776 (11th
Cir. 1994). These two figures are then multiplied together, resulting in a sum
commonly referred to as the “lodestar.” Under certain circumstances, the lodestar
may be adjusted in order to reach a more appropriate fee. See Blum v. Stenson, 465
U.S. 886, 888 (1984).
The plaintiff takes the position that the defendant’s fee request should be
6
limited to reasonable fees for time spent prior to January 15, 2010. Response in
Opposition to Motion for Sanctions and Motion for Award of Attorney’s Fees, Costs
and Expenses (DE# 316 at 17, 11/12/10).5 The plaintiff further argues that it:
is unable to properly inform this . . . Court with what it submits to be a
reasonable attorneys’ fee in light of the [d]efendant’s failure to delineate
with any specificity or exactitude the contributions by each time keeper
and have also failed to address whether any duplicative time was
excluded or why there was no duplication or redundancy.
Id. (citation omitted). As such, the plaintiff argues that the defendant’s fee request
should be denied or the defendant should be required to provide “more exact and
definitive statements . . . .” Id. (citation omitted).
The Court is not persuaded by the plaintiff’s argument that the defendant’s fee
request should be limited to those fees incurred prior to January 15, 2010. The
plaintiff voluntarily entered into a contractual agreement with the defendant wherein
“the prevailing [p]arty [would] be entitled to recover from the other [p]arty such legal
expenses, including attorney’s fees, costs, and necessary disbursements, in addition
to any other relief to which such party shall be entitled through all arbitration, trial and
appellate proceedings.” PSA (DE# 1 at 21, 3/6/09). The Court will not rewrite the
contract between the parties by limiting the defendant’s recovery to only those fees
incurred prior to January 15, 2010. See State Farm Mut. Auto. Ins. Co. v. Pridgen,
498 So. 2d 1245, 1248 (Fla.1986) (“Courts may not rewrite contracts or add meaning
5
The plaintiff takes the position that fees incurred after January 15, 2010 were
unnecessary and the result of Mr. Ingham’s abusive litigation tactics. See Declaration of
Peter R. Goldman (DE# 316-1 at 72, 11/12/10) (stating that “but for the ‘abusive tactics’
employed primarily by Mr. Ingham, none (or only a minimal amount) of the legal
expense after January 15, 2010 would have been necessary or incurred by the
[d]efendant.”) (footnote omitted).
7
to create an ambiguity.”). The Court also rejects the plaintiff’s argument that the
defendant’s fee request is insufficiently detailed. The defendant submitted billing
statements totaling 199 pages for the by Waller, Lansden, Dortch & Davis, LLP and
84 pages of billing records for Berger Singerman, P.A. These billing statements
contained detailed and contemporaneous billing descriptions of the tasks performed
and the time expended by each time keeper. The undersigned will evaluate the
defendant’s fee request for reasonableness below.
1.
Hourly Rate
The Court must first evaluate the defendant’s requested fee in terms of the
appropriate hourly rate. In order to determine a reasonable and proper fee award, the
Court must consider the number of hours expended on the case together with the
customary hourly fees charged in this community for similar services. See Norman v.
Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The Supreme
Court has held that a reasonable hourly rate is to be measured by “prevailing market
rates in the relevant community.” See Blum, 465 U.S. at 886. In determining the
prevailing market rates the Court should consider several factors including “the
attorney’s customary fee, the skill required to perform the legal services, the attorney’s
experience, reputation and ability, the time constraints involved, preclusion of other
employment, contingency, the undesirability of the case, the attorney’s relationship to
the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555
(S.D. Fla. 1996) (citing Dillard v. City of Elba, 863 F. Supp. 1550, 1552 (M.D. Ala.
1993)). In the instant action, the defendant was represented by Waller, Lansden,
Dortch & Davis, LLP (hereinafter “Waller” or “lead counsel”) and Berger Singerman,
8
P.A. (hereinafter “Berger” or “local counsel”). The hourly rates sought by the
defendant for lead counsel range from $130 to $515 for 2009 and 2010.6 See Exhibit
1 to Defendant’s Motion for Award of Attorney’s Fees, Costs, and Expenses (DE#
298-1, 10/6/10). The hourly rates sought by the defendant for local counsel (and staff)
range from $155 to $400 in 2009 and $75 to $560 in 2010. See Exhibit 2 to
Defendant’s Motion for Award of Attorney’s Fees, Costs, and Expenses (DE# 298-2,
10/6/10).
The plaintiff has submitted the Declaration of Peter R. Goldman in response to
the defendant’s fee request. See Declaration of Peter R. Goldman (DE# 316-1 at 64-77,
11/12/10). Mr. Goldman has been practicing law for approximately 20 years and his
practice includes complex healthcare litigation. Id. at 64. Mr. Goldman opines “that the
hourly rates charged by the attorney and paralegal time-keepers for the [d]efendant are
reasonable and within the range of market rates for lawyers and paralegals practicing in
the South Florida legal community.” Id. at 66. Having considered counsels’ reputation
and experience in the areas of the applicable law, the Affidavit of Robert C. Josefsberg
on the Reasonableness of Attorneys’ Fees (DE # 300-13, 10/6/10) and the Declaration
of Peter R. Goldman (DE# 316-1 at 64-77, 11/12/10) and the Court’s familiarity with
attorneys’ fees in general, the undersigned finds that the hourly rates sought by the
defendant are reasonable and should be awarded. See Norman v. Hous. Auth. of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (the court may consider its own
knowledge and experience concerning reasonable and proper fees and may form an
6
This includes hourly rates for staff.
9
independent judgment when reviewing a claim for hours reasonably expended).
2.
Amount of Hours
The Court must next evaluate the defendant’s requested fee for reasonableness
in terms of the total hours expended by defendant’s counsel. This Court may consider its
own knowledge and experience concerning reasonable and proper fees and may form
an independent judgment when reviewing a claim for hours reasonably expended. See
Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). If there is
inadequate documentation or if the Court finds a claim for hours to be “excessive or
unnecessary,” the Court may reduce the number of hours for which fees will be
awarded. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla.
1985).
Mr. Goldman disputes that the instant case represented an “existential threat” to
the defendant. Mr. Goldman opines that “the case did have merit and an ‘upside’ of
roughly $1.3 million.” See Declaration of Peter R. Goldman (DE# 316-1 at 69, 11/12/10).
As such, Mr. Goldman argues that the defendant overlitigated the case. Id. (stating “it is
my opinion that the scope of the litigation (and expense attributable thereto) was not
necessitated by a so-called ‘existential threat’ to the [d]efendant.”). According to Mr.
Goldman, the defendants assigned too many timekeepers to the case: “the staffing of
this case would, at most, ordinarily require 1-2 partners, 1-2 associates and 2-3
paralegals. . . .” Id. at 72 (italics in original).
At the outset, the Court is not persuaded by the plaintiff’s “existential threat”
argument. Any unreasonableness on the part of the defendant in believing the case was
an “existential threat” was directly attributable to the plaintiff. See, e.g., Plaintiff’s Motion
10
for Sanctions, Including the Entry of a Default Judgment and an Award of Attorney’s
Fees, and Request for Hearing (DE# 152 at 15 n. 16, 6/10/10) (stating that damages in
the instant case could range from $22,860,000.00 to 10,090,000.00 based on a 30%
denial rate by the defendant). Additionally, given the nature of the case and the
contentious manner in which it was litigated, the Court does not find it unusual to have a
large number of attorneys and staff working on this case. The Court notes that the case
involved approximately ten discovery hearings and 13 depositions. The defendants
produced over a million pages of documents in response to the plaintiff’s discovery
requests. Much of the discovery produced in the instant case concerned confidential
healthcare information which required time consuming and careful redaction in order to
comply with healthcare privacy laws. Thus, the Court is not persuaded by Mr. Goldman’s
argument that the case should have been staffed with, at most, seven legal
professionals. Nonetheless, each timekeeper working on the instant case would have
had to spend some time on the learning curve to efficiently work on this case. The Court
finds that timekeepers who spent less than ten hours on this case would have spent
more of their total billed time on the learning curve. Moreover, it is difficult to determine
what value was added to the case by such a minimal involvement. The Court will
disallow the billing entries of those timekeepers that worked less than ten hours on the
instant case. For the Waller law firm, there were 13 timekeepers7 who billed less than
7
These timekeepers are Sharon K. Herron, Richard G. Sanders, Beth Guest,
Andrew Norwood, Michael T. Harmon, Nate Gilmer, Emily J. Zibart, Joseph A. Sowell,
Frank Grace, Kristin M. Jantz, Vicki C. Thornton, Richard A. Moore and Michelle C.
Wilson.
11
ten hours for a total of $11,835.50. For the Berger law firm, eight timekeepers8 billed less
than ten hours in this case for a total of $3,749.50.
a.
Waller
The fees submitted by the defendant’s lead counsel, Waller, total $1,384,601.40
($1,396,436.90 minus $11,835.50, see supra). See Exhibit 1 to Defendant’s Motion for
Award of Attorney’s Fees, Costs, and Expenses (DE# 298-1, 10/6/10). The plaintiff does
not specifically address the defendant’s billing entries. Rather, the plaintiff’s expert, Mr.
Goldman, takes the position that “it [is] impossible (and impractical) to try and ascertain,
from the materials submitted by the [d]efendant in connection with the fee motion, the
extent to which there are overlapping, redundant time entries. . . . [I]t is impossible for
anyone to opine, with any degree of reasonable certainty, what constitutes time
reasonably devoted to the handling of the case (considering what a lawyer in this
community would ordinarily devote to a dispute of this nature) versus redundant,
overlapping work.” See Declaration of Peter R. Goldman (DE# 316-1 at 67-68, 11/12/10)
(italics in original). Mr. Goldman also opines that “it . . . appear[s] that [the d]efendant is
seeking recovery for clerical work that is not reimbursable.” Id. at 65. However, in his
declaration, Mr. Goldman does not identify which time entries he believes are clerical in
nature. The defendant submitted detailed monthly billing records and invoices
supporting their fee request. There is no reason why the plaintiff’s expert could not have
reviewed the defendant’s billing records, as the Court has done, and identified any
excessive, redundant, clerical or otherwise non-recoverable billing entries. “Generalized
8
These timekeepers are Mitchell Berger, Rita Goldberg, Andrew Kinkes, Erick
Rodriguez, Michelle Albrecht, Lissette Merida, Luis Torres and Betsy Moya.
12
statements that the time spent was reasonable or unreasonable . . . are not particularly
helpful and not entitled to much weight. . . . [a]s the district court must be reasonably
precise in excluding hours thought to be unreasonable or unnecessary, so should be the
objections and proof from fee opponents.” Norman, 836 F.2d at 1301.
Upon independent review of the billing invoices submitted by the defendant, the
undersigned finds that the time entries for the Waller law firm were contemporaneous,
complete, standardized and accurately reflect the work done by the defendant’s counsel.
Nonetheless, the Court finds that an across the board reduction of 30 percent for the
billing entries submitted by the defendant is warranted. “When a district court finds the
number of hours claimed is unreasonably high, the court has two choices: it may
conduct an hour- by-hour analysis or it may reduce the requested hours with an acrossthe-board-cut.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (per
curiam). An across the board reduction is particularly appropriate in the instant case
where the defendant has submitted approximately 283 pages of billing records
representing 5,058.60 hours for the Waller firm and 888.5 hours for the Berger firm.9
See Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001) (finding
569.3 hours were “extensive enough that [the appellate court] d[id] not expect the district
court or the magistrate judge to conduct an hour-by-hour analysis [of] th[e] case.”).
An overall 30 percent reduction of the requested fee amount is warranted to
account for billing entries that are excessive, duplicative, clerical in nature, unnecessary
or otherwise unreasonable. This overall reduction is also warranted because the time
9
These totals do not include the timekeepers who billed less than ten hours on
the case because they were previously disallowed by the Court.
13
entries include block billing and multiple attorneys. Additionally, there were some fees
which the defendant should not recover. For instance, there were three discovery
hearings wherein the Court sanctioned the defendants. The first hearing took place on
April 29, 2010. At this hearing, the undersigned allowed the plaintiff to depose the
signatories of certain third party vendor contracts at the defendant’s expense. See
Transcript April 29, 2010 Hearing (DE# 139 at 31-32, 5/11/10). At the May 12, 2010
hearing, the undersigned allowed the plaintiff to reopen the depositions of Steve Wylie,
Michael Miller10 and Larry Reaves and a 30(b)(6) corporate representative regarding a
newly disclosed vendor contract and new information at the defendant’s expense. See
Transcript May 12, 2010 Hearing (DE# 150 at 37, 6/4/10). Lastly, the plaintiff was
awarded $6,000 in Rule 37 sanctions against the defendant for failing to previously
disclose additional form 835s. See Transcript July 13, 2010 Hearing (DE# 193 at 19,
7/23/10). The Court finds that it would be inequitable to require the plaintiff to reimburse
the defendant for legal fees incurred in relation to these three discovery hearings. For
example, attorney Woodruff billed a total of 11.10 hours on May 13, 2010, including time
spent on preparing and defending the deposition of Larry Reaves. See Waller July 21,
2010 Billing Statement (DE# 300-6 at 33, 10/6/10).11 The plaintiff should not be required
to reimburse the defendant for the deposition of Mr. Reaves because that deposition
was supposed to take place at the defendant’s expense pursuant to a Court Order.
10
Ken Miller was also a deponent in this case. The deposition costs for Ken
Miller are recoverable.
11
Although Mr. Woodruff billed for preparing for other depositions which would be
recoverable, Mr. Woodruff’s use of block billing makes it impossible to determine how
much time was devoted to preparing for Mr. Reaves’ deposition.
14
Other examples of billing entries supporting an across the board 30 percent
reduction include the billing entries from Attorney Brian J. Malcom concerning the
defendant’s Motion to Dismiss for Lack of Personal Jurisdiction and Venue or, in the
Alternative, to Transfer Venue (DE# 4, 4/16/09) and the Defendant’s Memorandum in
Support of its Motion to Dismiss for Lack of Personal Jurisdiction and Venue, or in the
Alternative, to Transfer Venue (DE# 5, 4/16/09). Mr. Malcom spent approximately 43.3
hours12 from March 27, 2009 until April 14, 2009 working on the motion to dismiss which
consisted of two pages of substance and the memorandum of law consisting of 16
pages of substance. See April 23, 2009 Waller Billing Statement (DE# 300-5 at 8,
10/6/10); May 27, 2009 Waller Billing Statement (DE# 300-5 at 9-10, 10/6/10). Mr.
Malcom billed almost as much, approximately 39.5 hours, for working on the reply,
consisting of ten substantive pages. See June 17, 2009 Waller Billing Statement (DE#
300-5 at 13-14, 10/6/10). These amounts do not include the time billed by attorney Carol
Owen and local counsel Rene Harrod for working on the same documents. Similarly,
billing entries such as “work on motion practice” and “[w]ork on discovery issues” are not
sufficiently detailed to allow the Court to determine whether the amount of time spent on
these tasks was reasonable. See, e.g., June 17, 2009 Waller Billing Statement (DE#
300-5 at 14, 10/6/10); October 12, 2009 Waller Billing Statement (DE# 300-5 at 34,
10/6/10). Other billing entries appear excessive for the task described. For example on
July 24, 2009, attorney Carol Owen billed 7.20 hours for the following: “Correspondence
12
Mr. Malcom employed block billing. Thus, while Mr. Malcom spent time on
other tasks, it is impossible for the Court to determine what portion of Mr. Malcom’s
block billing entries were devoted exclusively to the motion to dismiss.
15
to R. Ingham re: motions for protective order and pro hac vice admission; review court
documents pursuant to fact investigation; instructions to H. Estama re: background
research into Plaintiff’s litigation; confer with S. Wylie re: case status; correspondence to
R. Ingham re: deficiencies of document production.” August 18, 2009 Waller Billing
Statement (DE# 300-5 at 23, 10/6/10). Similarly, Mr. Malcom billed approximately 14.5
hours for researching breach of contract claims and defenses under Florida law and
drafting a case assessment memorandum. See December 10, 2009 Waller Billing
Statement (DE# 300-5 at 45, 10/6/10); January 14, 2010 Waller Billing Statement (DE#
300-5 at 47, 10/6/10). Breach of contract is not a novel or complex legal issue under
Florida law. As an example of a duplicative entry Mr. Malcom and attorney Sarah C.
McBride both billed for reviewing the order setting mediation. October 12, 2009 Waller
Billing Statement (DE# 300-5 at 34, 10/6/10). The Court also found some limited
examples of clerical work. For example, Litigation Support Specialist Michael S. Creath
billed for “[p]repar[ing] copies of document production” and for loading discovery
documents into the Summation program on multiple occasions. See, e.g., December 10,
2009 Waller Billing Statement (DE# 300-5 at 44-45, 10/6/10), January 14, 2010 Waller
Billing Statement (DE# 300-5 at 48, 10/6/10). Attorney Carol Owen billed for overseeing
the filing and service of pretrial submissions. See September 29, 2010 Waller Billing
Statement (DE# 300-6 at 88, 10/6/10). These tasks appear to be clerical in nature.
Lastly, Mr. Malcom billed 2.40 hours for attending the September 22, 2010 hearing on
the motion to withdraw and motion for default judgment. See September 29, 2010
Waller Billing Statement (DE# 300-6 at 93-94, 10/6/10). However, a review of the
hearing transcript shows that Mr. Malcom did not participate at this hearing. The
16
foregoing are some examples of the billing entries which lead the Court to conclude that
a 30 percent overall reduction is appropriate in the instant case.
Applying the 30 percent reduction to the fees submitted from the Waller firm, the
Court finds that it was reasonable for the defendant to incur $969,220.98 ($1,384,601.40
minus 30 percent) in legal fees defending against the plaintiff’s claims. The defendant is
awarded a total of $969,220.98 in attorneys’ fees for the work performed by the Waller
firm.
b.
Berger
The fees submitted by the defendant’s local counsel, Berger, total $282,438.50
($286,188.00 minus $3,749.50, see supra). Upon review of the billing statements
submitted by the defendant, the undersigned finds that the time entries for the Berger
law firm were contemporaneous, complete, standardized and accurately reflect the work
done by the defendant’s counsel. Nonetheless, the Court finds that a 30 percent
reduction to the Berger billing records is warranted.
This 30 percent reduction accounts for work that is excessive, duplicative, clerical
in nature or unnecessary. Additionally, some block-billing makes it impossible to discern
what portion of the time billed was attributed to a specific task. Examples of billing
entries that should be reduced or disallowed include the March 19, 2009 billing entry
from paralegal Hulda Estama. Ms. Estama billed 1.30 hours for preparing the pro hac
vice motion for attorney Carol Owen. See April 2, 2009 Berger Billing Statement
(DE#300-7 at 2, 10/6/10). The Court has reviewed the pro hac vice motion filed on
behalf of Ms. Owen and finds that the amount billed is excessive and the billing entry
should be substantially reduced. As an example of clerical work, Ms. Estama
17
consistently billed for electronically filing documents on the Court’s CM/ECF system.
See, e.g., June 2, 2009 Berger Billing Statement (DE#300-7 at 4, 10/6/10). This task
should be disallowed in its entirety. Similarly, Ms. Estama billed for other clerical work
such as obtaining transcripts and making arrangements for depositions. See, e.g.,
March 2, 2010 Berger Billing Statement (DE#300-7 at 32 and 34, 10/6/10); April 1, 2010
Berger Billing Statement (DE#300-7 at 38, 10/6/10). The Court’s review of the billing
entries for the Berger firm revealed a few duplicative entries. An example of a duplicative
entry occurred on July 30, 2009 and July 31, 2009 when attorney Rene Harrod billed for
drafting the notice of selection of mediator. Id. at 10-11. Lastly, an example of
unnecessary work occurred on August 17, 2010 when Ms. Estama billed 10 hours for
attending the mock trial. See September 3, 2010 Berger Billing Statement (DE#300-7 at
63, 10/6/10). The Court finds that it would be unreasonable to require the plaintiff to pay
for a paralegal’s attendance at a mock trial. Similarly, attorney Monica F. Rossbach
billed 3.00 hours on September 10, 2010 for attending a pretrial conference and for
having lunch with lead counsel Mr. Woodruff and Ms. Owen. See September 30, 2010
Berger Billing Statement (DE#300-7 at 71, 10/6/10). The Court finds that it would be
unreasonable to charge the plaintiff for Ms. Rossbach’s time spent at lunch. Additionally,
the Court has reviewed the transcript of the pretrial conference and notes that Ms.
Rossbach did not participate at this hearing. Similarly, attorney Etan Mark billed 8.20
hours on September 17, 2010 for preparing and attending the pretrial conference. Id. at
74. The transcript reveals that Mr. Mark did not participate in the pretrial conference,
although he may have been in attendance. Mr. Mark also billed 4.00 hours on
September 22, 2010 for preparing and attending the hearing on the motion to withdraw
18
and motion for default judgment. Id. at 75. Again, the transcript shows that while Mr.
Mark was in attendance, he did not participate at this hearing. The Court finds these
billing entries represent unnecessary time and will be disallowed as a whole. In sum, the
Court finds that a 30 percent reduction to the billing entries of the Berger law firm are
warranted to account for excessive, duplicative, clerical or otherwise unnecessary billing
entries.
Applying the 30 percent reduction to the fees submitted from the Berger firm, the
Court finds that it was reasonable for the defendant to incur $197,706.95 ($282,438.50
minus 30 percent) in legal fees defending against the plaintiff’s claims. The defendant is
awarded a total of $197,706.95 in attorneys’ fees for the work performed by the Berger
firm.
II.
Costs and Expenses
The defendant also seeks $135,461.01 in costs incurred by both the Waller and
Berger law firms. See Exhibit 3 to Defendant’s Motion for Award of Attorney’s Fees,
Costs and Expenses (DE# 298-3, 10/6/10). In addition to costs, the defendant seeks to
recover $263,817.85 expended on experts and trial consultants. See Invoices, (DE#
300-8 at 2-37). Costs are generally recoverable pursuant to contract or by statutory
authority, 28 U.S.C. § 1920. Here, the PSA entitles the defendant to recover
costs and expenses. See PSA (DE# 1 at 21, 3/6/09). Although the defendant is not
limited to those costs taxable under § 1920, the defendant still bears the burden of
submitting a costs request that will allow the Court to determine which costs were
actually incurred and whether they are reasonable. See Lee v. American Eagle Airlines,
Inc., 93 F. Supp. 2d 1332, 1335 (S.D. Fla. 2000) (citing Loranger v. Stierheim, 10 F.3d
19
776, 782 (11th Cir. 1994).
A.
Costs
Here, the defendant has submitted monthly itemized costs13 and supporting
documentation (DE# 300-5-8, 10/6/10) for the costs it seeks to recover in the instant
case. The Court has calculated the costs reflected in the defendant’s billing statements
and finds that the costs contained in the defendant’s billing statements exceed the total
cost reflected in Exhibit 3 to Defendant’s Motion for Award of Attorney’s Fees, Costs and
Expenses (DE# 298-3, 10/6/10) by $2,750.02. The Court will use the lower number
reflected in Exhibit 3 as a starting point in determining the reasonable amount of costs to
award.
i.
Depositions
The defendant seeks $35,618.08 in connection with the depositions taken in the
instant case. These costs include the appearance fees of the court reporter and costs
associated with transcription and video services. These costs have been adequately
documented and the Court finds that, for the most part, they were reasonably incurred.
Nonetheless, the Court finds that some of the deposition fees are not recoverable by the
defendant. Specifically, depositions that were taken at the defendant’s expense as part
of a Court ordered sanction will not be recovered by the defendant. At the May 12, 2010
hearing, the undersigned allowed the plaintiff to reopen the depositions of Steve Wylie,
Michael Miller and Larry Reaves at the defendant’s expense. See Transcript May 12,
13
The monthly billing statements prepared by the defendant’s counsel included
itemized costs.
20
2010 Hearing (DE# 150 at 37, 6/4/10).14 Thus, the second depositions of Steve Wylie,
Michael Miller and Larry Reaves shall be excluded from the costs recovered by the
defendants. To that end, the Court will disallow $4,256.70 ($3,020.65 plus $1,236.05) for
the second depositions of Steve Wylie, Michael Miller and Larry Reaves. See Invoices
(DE# 300-8 at 53-54, 10/6/10). In total, the defendant is permitted to recover $31,361.38
($35,618.08 minus $4,256.70) for the depositions taken in the instant case.
ii.
Litigation Support
The defendant seeks reimbursement for “litigation support” in the amount of
$26,286.90. This amount is for services provided by two vendors, Document Solutions
and Net Evidence. The services provided by Document Solutions included “data factory,”
password cracking and organizing encrypted files, optical character recognition, file
conversion and providing CDs and DVDs of documents for use in the case. Net
Evidence provided data collection and review for use in the case. The Court finds that in
light of the voluminous document discovery in the instant case, it was necessary and
reasonable to incur these expenses. The defendant will be awarded the full amount for
“litigation support” services.
14
The Court also ordered the reopening of a 30(b)(6) deposition and permitted
the plaintiff to depose the signatories of certain third party vendor contracts at the
defendant’s expense. See Transcript April 29, 2010 Hearing (DE# 139 at 31-32,
5/11/10); Transcript May 12, 2010 Hearing (DE# 150 at 37, 6/4/10). However, the Court
cannot determine the names of these deponents from the documents submitted by the
defendant or whether these depositions took place. Additionally, the plaintiff has failed
to adequately defend against the defendant’s costs motion. Thus, the only deposition
costs that will be removed from the costs sought by the defendant are the second
depositions of Steve Wylie, Michael Miller and Larry Reaves.
21
iii.
Travel Expenses
The defendant seeks reimbursement for travel expenses for its lead and local
counsel. The travel expenses of lead counsel include traveling to Florida and other
states to attend Court hearings and conferences, depositions, the mediation and the
mock trial. For the most part, this travel appears reasonable. However, attorney Carol
Owen billed $186.94 in travel expenses for attending a hearing on a motion to dismiss in
Birmingham, Alabama. See Waller November 9, 2009 Billing Statement (DE# 300-5 at
41, 10/6/10). This expense entry appears to be from another case since Ms. Owen
already billed $881.90 for her travel expenses in attending the motion to dismiss in the
instant case. See Waller August 18, 2009 Billing Statement (DE# 300-5 at 24, 10/6/10).
The Court will disallow the $186.94 expense. Additionally, there are two $35.00
cancellation fees15 charged for the travel of attorneys Claire G. Sawyer and Frances
Fenelon. Ms. Sawyer was scheduled to travel on March 3, 2010 and March 7, 2010. See
Waller April 7, 2010 Billing Statement (DE# 300-6 at 6, 10/6/10). Ms. Sawyer’s trip was
cancelled and her travel expenses were credited back to the client with the exception of
$35.00. See Waller May 10, 2010 Billing Statement (DE# 300-6 at 25, 10/6/10).
Similarly, Ms. Fenelon cancelled a trip to Florence, South Carolina and the client was
credited for the cost of the trip with the exception of $35.00. Id.16 There is no indication
15
The billing records show two charges, $621.40 and $335.70, in connection
with travel by Ms. Sawyer. See Waller April 7, 2010 Billing Statement (DE# 300-6 at 6,
10/6/10). On April 15, 2010, the defendant was credited the full $621.40 and $300.70
for Ms. Sawyer’s travel. Thus, $35.00 was not credited back to the defendant. See
Waller May 10, 2010 Billing Statement (DE# 300-6 at 25, 10/6/10).
16
The billing records show that the defendant incurred a charge of $438.30 for
Ms. Fenelon’s travel. See Waller May 10, 2010 Billing Statement (DE# 300-6 at 25,
22
that the plaintiff was responsible for the cancellation of these two trips. The plaintiff
should not have to pay for Ms. Sawyer’s and Ms. Fenelon’s cancellation fees. The
defendant’s travel expenses will be reduced by $70.00 ($35.00 times 2).
Local counsel billed for travel expenses consisting of tolls, mileage and parking
for attending hearings. These travel charges appear reasonable. However, there was
also a $240.00 charge for a limo services for two witnesses. See Invoice (DE# 300-9 at
75, 10/6/10). The records do not indicate who these witnesses are and the $240.00
charge for transportation is unreasonable. The Court will disallow the $240.00 charge in
its entirety.
In sum, the Court will disallow $496.94 ($186.94 plus $70.00 plus $240.00) in
travel expenses sought by the defendant. The remaining travel entries, totaling
$15,133.68 ($15,630.62 minus $496.94), appear reasonable.
iv.
Photocopies
The defendant requests $12,163.40 for photocopies. The defendant has offered
no explanation as to what these photocopies were for or how they were necessary to
this case. The defendant’s description of its photocopying expenses consists of each
firm's billing records which merely states “reproductions” or “photocopies.” Obviously,
accounting for each photocopy would be impracticable. However, a brief description of
the nature or purpose of the photocopies would assist the Court in determining its
reasonableness. It is clear that some photocopy expenses were reasonably incurred in
the instant action. Waller’s billing records indicate that the defendant charged $0.20 per
10/6/10). The trip was cancelled and the defendant received a credit of $403.30. Id.
Thus, $35.00 was not credited back to the defendant.
23
page for copies. See, e.g., Waller April 7, 2010 Billing Statement (DE# 300-6 at 10,
10/6/10). The Court cannot determine the per page copy rate charged by the Berger
firm. The Court will allow the defendant to recover photocopies at a rate of $0.10 per
page, $6,081.70 ($12,163.40 divided by half). The Court will further reduce this amount
by half to $3,040.85 ($6,081.70 divided by half) to account for the lack of explanation.
The defendant will be allowed to recover photocopying costs of $3,040.85 in the instant
case.
v.
Document and Data Duplication and Management
The defendant seeks to recover $10,830.00 for document and data duplication
and management. These fees include $5,992.30 for the services of Pitney Bowes.
Pitney Bowes provided bate stamping, optical character recognition and scanning
services. The undersigned finds that the defendant reasonably incurred these fees. In
the instant case over a million documents were produced. In order to make document
production possible, the defendant reasonably retained the services of outside vendors.
The Court cannot readily determine which vendors provided services for the remaining
Document and Data Duplication and Management charges. Thus, the Court will allow
the defendant to recover $5,992.30 for data duplication and management.
vi.
Postage
The defendant seeks to recover $10,387.15 in postage. A nominal amount was
incurred for correspondence sent through the United States mail. The majority of these
charges were incurred by using commercial shipping company such as Federal Express
and UPS. The dates of the shipments and the names of the senders and the recipients
were generally included in the defendant’s detailed billing records. Most of these
24
shipments were sent by lead counsel to the plaintiff’s counsel, Mr. Ingham and to the
defendant’s local counsel, Rene Harrod. Because this litigation was paper intensive, it
seems reasonable that lead counsel would routinely ship documents to Mr. Ingham and
Ms. Harrod using a commercial shipping company.
vii.
Online Research Charges
The defendant seeks to recover $8,618.33 for online legal research. The billing
statements submitted by the defendant are sufficiently detailed to allow the Court to
determine the nature of the legal research performed in this case. Moreover, the Waller
billing statements provide the Court with the date on which the research was conducted.
The Court has reviewed the billing statements for both the Waller and Berger firms and
finds that $8,618.33 is reasonable for the amount of legal research performed in the
instant case. The Court will allow the defendant to recover the full amount for legal
research.
viii.
Courier Services and Delivery Charges
The defendant seeks to recover $3,604.71 in courier services and $392.95 in
delivery charges. Some delivery charges appear in billing statements from the Waller
law firm but are not descriptive. See, e.g., Waller April 7, 2010 Billing Statement (DE#
300-6 at 10, 10/6/10). Since the Court cannot determine why or to whom the deliveries
were made, the Court will disallow the delivery charges in their entirety. With respect to
the courier charges, the invoices submitted by the defendant note, the defendant
employed courier services to hand-deliver documents to the Court. It is unclear whether
the documents were hand-delivered at the Court’s request. Because some use of
couriers was reasonable in the instant case, the Court will reduce the amount sought by
25
the defendant for courier services by half. The defendant shall recover $1,802.36
($3,604.71 times 50 percent).
ix.
Conference Calls and Phone Charges
The defendant seeks to recover $3,434.69 in conference calls and $1,967.07 in
telephone charges. The majority of the telephone calls for which the defendant seeks
reimbursement were long distance telephone calls between lead counsel and local
counsel and from lead or local counsel to the various facilities owned by the defendant.
Additionally, the use of conference calls was reasonable and cost efficient in that it
allowed the parties to confer and attend hearings without incurring unnecessary travel
expenses. The Court will allow both the conference calls and the phone charges sought
by the defendant.
x.
Hearing Transcripts
The defendant seeks to recover $1,927.15 for obtaining hearing transcripts in the
instant case. The Court finds that the defendant is entitled to recover the full amount for
these hearing transcripts. Obtaining hearing transcripts in the instant case was
reasonable and necessary particularly where the parties had difficulty agreeing on the
substance of the Court’s rulings from the bench. On more than one occasion, the Court
had to reconvene a discovery hearing because the parties could not agree to the
substance of the Court’s ruling at the previous discovery hearing. The documentation
submitted by the defendant adequately supports this expense. Because the hearing
transcripts were necessary in the instant case and the amount sought is reasonable, the
defendant will recover the full amount for obtaining hearing transcripts.
26
xi.
Outside Printing
The defendant seeks to recover $1,857.42 in outside printing services. The
defendant has offered no explanation concerning the use of an outside printing service.
The defendant paid the firm of Maynard, Cooper & Gale, P.C. (“Maynard”) $156.24 for
“copies.” See Waller July 13, 2010 Billing Statement (DE# 300-6 at 56, 10/6/10). A
review of the defendant’s billing records indicates that Maynard responded to a
subpoena issued by the defendant. See Waller July 21, 2010 Billing Statement (DE#
300-6 at 30, 10/6/10). The Court will allow the defendant to recover $156.24 for
obtaining documents from Maynard. The records submitted by the defendant do not
allow the Court to readily ascertain why the remaining outside printing charges were
incurred. The Court will limit the defendant’s recovery to $156.24.
xii.
Mediation Fee (½ amount)
The Court finds that the defendant is entitled to recover its share of the mediation
fee. Local Rule 16.2(b)(7), states that: “[a]bsent agreement of the parties to the contrary,
the cost of the mediator’s services shall be borne equally by the parties to the mediation
conference.” The PSA constitutes the parties’ “agreement to the contrary.” The
defendant will be awarded $1,750.00 for its share of the mediation fee.17
xiii.
Meals
The defendant seeks to recover $692.54 for meals in the instant case. The Court
will disallow the entire amount. Although these meals may have taken place during
17
The plaintiff has already paid its corresponding half of the mediation fee. See
Defendant’s Notice of Payment of Mediator Fees and of Gragil Associates, Inc.’s
Decision Not to Pursue Sanctions (DE# 313, 10/22/10).
27
depositions and other events related to the litigation, meals do appear to be a necessary
disbursement.
xiv.
Court Filing Fees
The defendant also seeks to recover $300.00 in court filing fees. This amount
represents the $75.00 filing fees for attorneys Joseph A. Woodruff, Lea Carol Owen,
Sara C. McBride and Frances C. Fenelon to appear pro hac vice on behalf of the
defendant. The Court finds that this amount is reasonable, necessary and recoverable.
The defendant is entitled to recover $300.00 in court filing fees.
For the reasons stated above, the costs recoverable by the defendant are as
follows:
Description
Amount Sought
Amount Allowed
Depositions
$35,618.08
$31,361.38
Litigation Support
$26,286.90
$26,286.90
Travel Expenses
$15,630.62
$15,133.68
Photocopies
$12,163.40
$3,040.85
Document and Date
Duplication and
Management
$10,830.00
$5,992.30
Postage
$10,387.15
$10,387.15
Online Research Charges
$8,618.33
$8,618.33
Courier Services
$3,604.71
$1,802.36
Conference Calls
$3,434.69
$3,434.69
Phone
$1,967.07
$1,967.07
Hearing Transcripts
$1,927.15
$1,927.15
Outside Printing
$1,857.42
$156.24
Mediation Fee (½ amount)
$1,750.00
$1,750.00
28
Meals
$692.54
$0.00
Delivery
$392.95
$0.00
Court Filing Fees
$300.00
$300.00
Total Expenses
$135,461.01
$112,158.10
B.
Expenses
The Court has also reviewed the invoices submitted by the defendant for its
experts and trial consultants totaling $263,817.85. These expense can be broken down
as follows: $4,246.70 for work performed by TrialGraphix, $177,389.16 for work
performed by Decosimo and $82,181.99 for work performed by Kelso Trial Consulting.
The work performed by TrialGraphix included “video synchronization” and “data
archive.” As explained in the invoices, “[t]he synchronization process enables the trial
team to display specific selections of video and audio with or without the corresponding
transcript.” See TrialGraphix Invoice (DE# 300-8 at 2, 10/6/10). Data archive refers to
the storage of this material for future use in other proceedings. TrialGraphix also
charged for project and design consultation. Id. at 4. In the instant case, video
synchronization would have assisted the defendant in presenting video deposition
testimony to the jury. Based on the Court’s own experience, to use of streamlined video
testimony at trial is helpful and conserves time. The Court finds that these expenses
were reasonable and recoverable. The defendant will be awarded the full amount paid to
TrialGraphix, $4,246.70.
The defendant also engaged the accounting firm of Decosimo. The use of an
accounting firm in the instant case was necessary because the plaintiff was claiming lost
profits. Additionally, healthcare accounting is a specialized field. The defendant
29
employed the Decosimo firm to assist them in preparing for depositions and defending
against the plaintiff’s claims. The Court finds that it is not unusual for a defendant to
retain an accounting firm in defending against the types of claims asserted in the instant
case. The Court has reviewed the bills submitted by the Decosimo firm and finds that
they are detailed and reasonable. The defendant shall recover the full amount,
$177,389.16, incurred in employing the Decosimo firm.
Lastly, the defendant used Kelso Trial Consulting to conduct a two-day focus
group and mock trial. It is not unusual for a defendant to conduct a mock trial and a
focus group in a case involving potential liability exposure in excess of a million dollars.
The Court will award the defendant the full amount paid to Kelso Trial Consulting,
$82,181.99. In sum, the defendant shall recover all expenses, $263,817.85, incurred in
the instant case.
CONCLUSION
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Defendant’s Motion for Award of Attorney’s
Fees, Costs and Expenses and Memorandum of Law in Support Thereof (DE# 298,
10/6/10) is GRANTED in part and DENIED in part. It is further
ORDERED AND ADJUDGED that the defendant is awarded attorney’s fees in the
amount of $1,166,927.93 ($969,220.98 plus $197,706.95), costs in the amount of
$112,158.10 and expenses in the amount $263,817.85. In total, the defendant shall
30
recover $1,542,903.88 in attorney’s fees, costs and expenses from the plaintiff.
DONE AND ORDERED in Chambers at Miami, Florida this 27th day of June,
2011.
________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Seitz
All counsel of record
31
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