Kapila v. Davis, Graham & Stubbs LLP et al

Filing 69

ORDER ADOPTING DE 59 REPORT AND RECOMMENDATIONS; Granting 50 Motion for Attorney Fees $1,862,203.24 and $274,741.73 in non-taxable expert witness costs to the Defendants. Certificate of Appealability: No Ruling. Signed by Judge Robert N. Scola, Jr on 8/3/2018. See attached document for full details. (lk)

United States District Court
for the
Southern District of Florida
Soneet R. Kapila, Plaintiff,
v.
Davis, Graham & Stubbs LLP and
S. Lee Terry, Defendants.

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) Civil Action No. 15-61016-Civ-Scola
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Order Adopting Magistrate’s Report And Recommendation
This matter was referred to United States Magistrate Judge Lurana S.
Snow for a report and recommendation on the Defendants’ verified motion for
attorneys’ fees and non-taxable costs (Mot., ECF No. 50). (See Order, ECF No.
53.) On June 5, 2018, Judge Snow issued a report (“R&R”), recommending that
the Court grant the motion and award the Defendants attorneys’ fees in the
amount of $1,862,203.24 and $274,741.73 in non-taxable expert witness
costs. (R. & R., ECF No. 59.) The Plaintiff filed objections to the R&R (ECF No.
61), to which the Defendants responded (ECF No. 64), and the Plaintiff replied
(ECF No. 67). The Court has reviewed de novo those portions of Judge Snow’s
report to which the Plaintiff objects, and the remaining parts for clear error.
See 28 U.S.C. § 636(b); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir.
2006).
In his objections and reply, the Plaintiff restates and expands upon the
arguments he made in his original opposition to the Motion and in oral
argument to Judge Snow. “It is improper for an objecting party to . . . submit [ ]
papers to a district court which are nothing more than a rehashing of the same
arguments and positions taken in the original papers submitted to the
Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the
apple’ when they file objections to a R & R.” Marlite, Inc. v. Eckenrod, 2012 WL
3614212, at *2 (S.D. Fla. Aug. 21, 2012) (Moreno, J.) (quoting Camardo v. Gen.
Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992)). Thus, the Plaintiff’s objections are due to be overruled on this basis
alone. Moreover, the Plaintiff does not point to errors in Judge Snow’s findings,
reasoning, or conclusions; he contends instead that because she did not
directly address in her R&R the factors applicable to determining whether the
first two offers of judgment were made in good faith, she failed to adequately
consider them. A review of the record belies this contention. And, in any event,
his contention is largely based upon the position that the Court’s good faith

inquiry should focus upon whether the offers were made in good faith from the
Plaintiff’s perspective. That is not an accurate view of the law. See McGregor v.
Molnar, 79 So. 3d 908, 911 (Fla. 2d DCA 2012) (“The question of whether a
proposal was served in good faith turns entirely on whether the offeror had a
reasonable foundation upon which to make his offer . . . .”) (internal citation
omitted); see also Segundo v. Reid, 20 So. 3d 933, 937 (Fla. 3d DCA 2009)
(“[T]he trial court must determine whether the offeror had a reasonable
foundation upon which to make the offer.”) (internal quotations and citation
omitted).
Therefore, having considered Judge Snow’s R&R, the objections,
response and reply, the record and the relevant legal authorities, this Court
finds Judge Snow’s R&R cogent and compelling. The Court affirms and adopts
Judge Snow’s R&R (ECF No. 59). The Court grants the Defendants’ motion for
attorneys’ fees and non-taxable costs (ECF No. 50). Consistent with the report,
the Court awards $1,862,203.24 in attorneys’ fees and $274,741.73 in nontaxable expert witness costs to the Defendants to be paid by the Plaintiff.
Done and ordered at Miami, Florida, on August 3, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge