MKT REPS S.A. DE C.V. v. Standard Chartered Bank International (Americas) Limited
Filing
160
ORDER granting in part and denying in part 153 Motion for Attorney Fees. Signed by Magistrate Judge John J. O'Sullivan on 3/28/2013. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-22963-CIV-O’SULLIVAN
[CONSENT]
MKT REPS S.A. DE C.V.,
Plaintiff,
v.
STANDARD CHARTERED BANK
INTERNATIONAL (AMERICAS) LIMITED,
Defendant.
_____________________________/
ORDER
THIS MATTER is before the Court on the defendant Standard Chartered Bank
International (Americas) Limited’s Motion for Attorneys’ Fees and Costs (DE# 153,
11/15/2012). This matter was referred to the undersigned United States Magistrate
Judge John O’Sullivan for final disposition by the Honorable Joan A. Lenard, United
States District Court Judge for the Southern District of Florida pursuant to 28 U.S.C. §
636(b). Having carefully considered the motion, the response and the reply thereto, the
court file and the applicable law, the undersigned orders that the motion is GRANTED
IN PART and DENIED IN PART as more fully described below.
BACKGROUND1
On August 17, 2010, the plaintiff filed this action against the defendant for
breach of contract, tortious interference with a business or contractual relationship, and
conversion (DE# 1-2 at 5, 8/17/2012). The plaintiff claims that this matter emerged
1
To maintain consistency, citations to the docket entries in this order will refer to
the page numbers automatically assigned by the Court’s CM/ECF system not the page
numbers on the original documents.
from a dispute involving the freezing of plaintiff’s bank account maintained by the
defendant. Id. at 9. On May 7, 2012, and May 21, 2012, this Court dismissed with
prejudice the plaintiff’s claims for breach of contract and conversion, respectively. See
Order (DE# 105, 5/07/2012); Order (DE# 109, 5/21/2012). On May 30, 2012, and May
31, 2012, this Court held a two-day bench trial on the plaintiff’s remaining claim for
tortious interference with a business or contractual relationship. Following trial, on July
20, 2012, this Court entered an Order and Judgment in the defendant’s favor for
tortious interference with a business or contractual relationship. See Order (DE# 135,
7/20/2012); Final Judgment (DE# 136, 7/20/2012).
As recognized by this Court, the account relationship between the parties was
established and is governed by certain account documents that were admitted into
evidence in this case: the Account Application and Agreement for Corporations or Other
Organizations, and addendums thereto, (“Account Application”), the Rules and
Regulations Governing Accounts (“Account Rules and Regulations”), and the
Nondiscretionary Investment Services Agreement (“NISA”) (collectively, the “Account
Agreements”). Specifically, sections 43, 45, and 46 of Account Rules and Regulations
entitle the defendant to an award of “all resulting costs and expenses . . . including
without limitation any attorneys’ fees (and attorneys’ expenses) incurred at trial, on
appeal or without litigation, [and] shall be reimbursed by Customer to SCBI upon its
demand. . . .” (DE# 81-1 at 50, 3/30/2012); see Order (DE# 144, 10/01/2012). Pursuant
to this agreement, on August 20, 2012, the defendant filed a Motion to Determine
Entitlement to Attorneys’ Fees and Costs (DE# 139, 8/20/2012).
This Court ultimately granted the defendant’s Motion to Determine Entitlement to
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Attorneys’ Fees and Costs on October 1, 2012, (DE# 144 at 1, 10/01/2012). In its
holding, the undersigned found that “the subject attorney’s fees clause is broad and
covers all claims” and further directed the defendant to file its motion for costs within 20
days. Id. Following this Court’s granting of the defendant’s requested extensions, on
November 15, 2012, the defendant filed its Motion for Attorneys’ Fees and Costs (DE#
153, 11/15/2012). The plaintiff filed a response on December 17, 2012, (DE# 156,
12/17/2012). On January 10, 2013, the defendant filed a reply (DE# 156, 1/10/2013).
The undersigned has carefully considered the defendant’s Bill of Costs (DE# 138,
08/20/2012); the defendant’s Motion for Attorneys’ Fees and Costs (DE# 153,
11/15/2012); the response (DE# 145, 10/16/2012); and the reply (DE# 150,
11/02/2012).
ANALYSIS
I. Costs
The defendant is seeking costs pursuant to both the applicable statute and the
applicable contract as follows. That is, the defendant is seeking costs pursuant to Rule
54(d)(1) of the Federal Rules of Civil Procedure, 28 U.S.C. § 1920 and the
aforementioned agreement between the parties (Account Rules and Regulations).
Rule 54(d), Fed. R. Civ. P. provides that “costs other than attorneys’ fees shall be
allowed as of course to the prevailing party unless the court otherwise directs.” Fed. R.
Civ. P. 54(d). A “prevailing party,” for purposes of the rule, is a party in whose favor
judgment is rendered. See Util. Automation 2000, Inc. v. Choctawhatchee Elec. Coop.,
Inc., 298 F.3d 1238 (11th Cir. 2002); see also Santana v. Blue Ribbon Meats, Inc., No.
3
02-21089-CIV, 2003 U.S. Dist. LEXIS 25642, at *5 (S.D. Fla. July 3, 2003). This means
the party who won at the trial level, whether or not that party prevailed on all issues and
regardless of the amount of damages awarded. Choctawhatchee, 298 F.3d at 1248. In
the instant case, the defendant prevailed because the Court entered an Order and
Judgment in the defendant’s favor. See Order (DE# 135, 7/20/2012); Final Judgment
(DE# 136, 7/20/2012). Accordingly, the defendant is entitled to an award of all costs
recoverable under 28 U.S.C. § 1920 in addition to those costs recoverable pursuant to
the agreement between the parties. The defendant submitted a Bill of Costs in the total
amount of $9,020.22 (DE# 138 at 5, 8/20/2012).
In its response, the plaintiff argues that the defendant’s Bill of Costs should be
denied in its entirety or substantially reduced due to the plaintiff’s financial hardship
(DE# 145, 10/16/2012). The plaintiff claims that it experienced a significant degree of
financial hardship as a result of the alleged freeze of its bank account, suffering an
estimated $1,067,200.00 loss according to the plaintiff’s expert report and testimony
(DE# 145 at 2, 10/16/2012). As a preliminary matter, the undersigned finds that there is
no justification to reduce a cost award based solely on the plaintiff’s alleged inability to
satisfy a judgment. See Mathews v. Crosby, 480 F.3d 1265, 1276-77 (11th Cir. 2007)
(affirming an award of costs despite a claim of indigence because the district court had
no “sound basis to overcome the strong presumption that a prevailing party is entitled to
costs”) (citing Chapman v. Al Transp., 229 F.3d 1012, 1023-24 (11th Cir. 2000). In the
instant case, there is an insufficient showing of evidence for the undersigned to
conclude that the plaintiff is unable to pay the award. The undersigned finds that the
plaintiff has failed to identify all of their assets and liabilities in support of the plaintiff’s
4
contention of hardship in paying. In addition, the plaintiff challenges the adequacy of
the evidentiary support for costs claimed by the defendant, including the costs for
transcript fees, mediation, photocopy expenses, outside vendor copy charges (i.e.
charges for binders, tabs, notebooks and labeling), compensation of rush translation of
documents, in-house copy and printing charges, and computer research (DE# 145,
10/06/2012);(DE# 156, 12/17/2012).
In the defendant’s Motion for Attorneys’ Fees and Costs, the defendant seeks an
award in the total sum of $44,721.79 for costs incurred in the defense against the
plaintiff’s claims in the lawsuit (DE# 153 at 12, 11/15/2012). The defendant seeks both
costs taxable under 28 U.S.C. § 1920 and costs pursuant to the Account Rules and
Regulations for those costs not taxable under 28 U.S.C. § 1920 (DE# 139 at 4,
8/20/2012).
Specific costs which may be awarded are set forth in Rule 54, Fed. R. Civ. P.,
and 28 U.S.C. § 1920, which states:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
(5) Docket fees under Section 1923 of this title;
5
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under §1828 of this title.
28 U.S.C. § 1920. In the exercise of sound discretion, trial courts are accorded great
latitude ascertaining taxable costs. However, in exercising its discretion to tax costs,
absent explicit statutory authorization, federal courts are limited to those costs
specifically enumerated in 28 U.S.C. § 1920. See U.S. E.E.O.C. v. W&O, Inc., 213 F.
3d 600 620 (11th Cir. 2000). This Court is bound by the limits of 28 U.S.C. § 1920 in
awarding costs and fees to a prevailing party, absent contract or explicit statutory
authority to the contrary. Id. In this matter, the undersigned finds that the defendant is
entitled to costs under 28 U.S.C. § 1920 and under the Account Rules and Regulations,
the defendant is entitled to recover costs beyond the scope of 28 U.S.C. § 1920
incurred in defense of the instant case. The defendant is entitled to reasonable costs
under 28 U.S.C. § 1920 and the costs submitted pursuant to the applicable contract,
the Account Rules and Regulations.
In accordance with the foregoing, the defendant shall receive the costs outlined
below.
A. Mediation
The defendant seeks mediation fees in this matter in the amount of $425.00.
The mediation expense is enumerated under the section titled “[o]ther costs” in the
defendant’s Bill of Costs (DE# 138, 8/20/2012). The plaintiff contends that such costs
are not recoverable (DE# 145, 10/16/2012). While costs for mediation are not
recoverable under 28 U.S.C. § 1920, the defendant is entitled to recover the costs
6
associated with mediation in the amount of $425.00 pursuant to the Account Rules and
Regulations.
B. Depositions
The defendant requests $4,431.122 for deposition transcript fees. The plaintiff
objects generally to the expenses requested by the defendant including “transcript
fees,” but fails to object to the use of a specific transcript fee submitted by the
defendant (DE# 156, 12/17/2012). Moreover, these costs are permitted under 28
U.S.C. § 1920(2) if the deposition transcripts were necessarily obtained for use in the
case. See EEOC v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. 2001) (“deposition costs
[are] allowable where there is no evidence that the depositions were not related to an
issue in the case when the depositions were taken”). The depositions were necessarily
obtained for use in the case. The defendant is entitled to receive $4,431.12 for these
costs under both 28 U.S.C. § 1920 and the applicable contract.
C. Compensation of Interpreters and Translation of Documents
The defendant seeks reimbursement in the amount of $2,765.00 for
2
The defendant’s Bill of Costs reflects a sum of $4,431.12 for “[f]ees for printed
or electronically recorded transcripts necessarily obtained for use in the case.” The
defendant’s itemized internal billing record reflects the following for such costs: (1) the
deposition transcript of Cynthia Stephens, Ph.D taken on 2/24/2012 for $1,099.10; (2)
court reporter fee for $308.55 from J.M. Court Reporting, Inc. billed on 5/22/2012; (3)
cost for the trial transcript for $358.20 billed on 5/30/2012); (4) court reporter fee for the
trial in the amount of $1,740.12 billed on 6/8/2012; and (5) cost for the original and one
certified copy of Mr. Oliveros’ deposition for $1,233.70 (DE# 153-1 at 12-14,
11/15/2012). Pursuant to the Court’s independent calculation of such costs listed in the
defendant’s itemized billing record, the sum of these deposition and transcript costs
together with the court reporter fees equals $4,739.67. Because the defendant asks for
$4,431.12, an amount lower than the undersigned’s calculations, $4,431.12 is the
amount the Court will award.
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compensation of interpreters. This amount is comprised of three separate costs:
$1,000.00 for translation and certification services from Spanish to English of the trial
held on March 30 and 31, 2012; $1,270.00 for the rush translation and certification
services from Spanish to English on March 31, 2012; and $495.00 for the translation of
the deposition of Carlos Collado Oliveros from March 18, 2012. 28 U.S.C. § 1920(6)
provides for the “[c]ompensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation services
under Section 1828 of this title.” The plaintiff argues that §1920(6) allows the award of
costs for live interpreters, but not translation services (DE# 145 at 6-7, 10/16/2012).
This interpretation is in accord with the text of the statute, as the list of fees under
§1920(6) includes translation by live individuals (experts and interpreters), and not
services performed by a private company to translate documents.
Both parties acknowledge that the Eleventh Circuit has not addressed the issue
of whether the costs for the translation of documents is taxable under 28 U.S.C. §
1920(6) and that a split in the authority exists amongst the circuits that have ruled on
the matter. In addition, the Florida district courts that have ruled on the matter are split
as well, although the plaintiffs cite only to cases in which translation fees were
disallowed. In the instant matter, the undersigned notes that even if the defendant is
not entitled to recover these costs under 28 U.S.C. § 1920, the defendant is entitled to
these costs under the applicable contract.
In its response, the plaintiff cites to the recent United States Supreme Court case
Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct. 1997, 2000 (2012), which states that
the “‘compensation of interpreters’ is limited to the cost of oral translation and does not
8
include the cost of document translation.’” The plaintiff also challenges the rush and
expedited fees of $1,700.00 incurred by the defendant for the translation of
documents. In support of its argument, the plaintiff cites to case law in the Southern
District which supports the contention that rush expenses are beyond the scope of 28
U.S.C. § 1920. The plaintiff again fails to properly object to the defendant’s entitlement
to these expenses under the applicable contract, which entitles the defendant to “all
resulting costs and expenses of SCBI....” (DE# 81-1 at 50, 3/30/2012). While these
costs are not permitted under 28 U.S.C. §1920(6), the undersigned finds that the costs
for translation of documents and their rush delivery are reasonable and recoverable
under the applicable contract. The undersigned finds that the defendant is entitled to
recover the full amount requested in the sum of $2,765.00.
D. Document Reproduction and Photocopies
The defendant requests photocopy expenses in the amount of $1,399.10.3
Pursuant to 28 U.S.C. § 1920(4), these costs are permitted if the copies were
necessarily obtained for use in the case. In its response, the plaintiff challenges the
defendant’s entitlement to this award because the defendant failed to provide details as
3
Pursuant to an independent review of the defendant’s itemized internal billing
record, the Court calculated the amount of photocopy costs to be $1,802.85. In
calculating photocopy costs, the Court included all expenses the defendant listed for
copying, expenses incurred by GT Imaging, and Iris Data Services. The defendant
included appropriate billing records for both GT Imaging and Iris Data Services in order
to demonstrate the purpose and use of these costs over the course of litigation. For
example, the invoice from Iris Data Services - Finance Department lists the items
purchased by the defendant, including labels, tabs, and master CD (DE# 138-2 at 8,
8/20/2012). While these expenses are disallowed under 28 U.S.C. § 1920, the
undersigned finds the defendant is entitled to recover for such costs under the
applicable contract.
9
to the nature, purpose or intent of the reproductions (DE# 145, 10/16/2012). The
plaintiff also contends that the defendant should not recover costs for binding, tabs,
notebooks and labeling because such costs are not taxable under 28 U.S.C. § 1920
(DE# 145, 10/16/2012).
The plaintiff argues that the defendant “completely failed” to provide any case
law that demonstrates it is entitled to these non-taxable expenses. However, the
defendant need not explicitly support its entitlement to these non-taxable expenses
under 28 U.S.C. § 1920 because the defendant is entitled to these costs pursuant to
the applicable contract. The defendant responded to the plaintiff’s objection and states
that the photocopies were made on either May 25 or May 29, 2012 at $0.15 per copy
(DE# 150 at 3, 11/02/2012). The defendant further explains that the photocopies were
made and used at trial as either exhibits or copies furnished for the Court and opposing
counsel.
The undersigned agrees with the defendant that the defendant need not
specifically explain the use of each copy in order to recover this expense. Although the
defendant lists $1,399.10 in the Bill of Costs as “costs of making copies of any
materials where the copies are necessarily obtained for use in the case,” the copy costs
listed in the motion itemized records submitted by the defendant total $1,802.85.
Because the defendant seeks an award of $1,399.10 in the Bill of Costs, an amount
lower than the Court’s calculations, the undersigned finds that the defendant is entitled
to recover photocopy expenses in the sum of $1,399.10.
E. Expert Witness Fees
The defendant requests $13,805.00 for costs associated with experts. The
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defendant’s internal billing report in the defendant’s Motion for Attorneys’ Fees and
Costs submitted in support of its costs reflects three separate items for “[v]endor”
“Morrison, Brown, Argiz & Farra, LLP” (DE# 153-1 at 12-13, 11/15/2012). For the first
listing of this cost, the defendant provides a description of the vendor as “expert retainer
fee,” the second and third listings describe the vendor as “[l]itigation Support Services.”
It is presumed that these listed items for Morrison, Argiz & Farra, LLP also relate to
expert witness fees. While the plaintiff objects generally to the defendant’s recovery for
“costs such as...expert fees” under 28 U.S.C. § 1920 (DE# 156 at 7, 12/17/2012), these
fees are recoverable under the applicable contract. The undersigned awards the
defendant $13,805.00 for these costs.
F. Travel Expense for Defense Counsel
The defendant seeks travel expense reimbursement for parking and tolls in the
amount of $58.00. Although there is no mention of such expenses under 28 U.S.C. §
1920 and are generally not permissible, the undersigned finds that these costs are
permissible under the applicable contract. The defendant further seeks reimbursement
for business meals in the amount of $117.31 for meeting with experts. These are also
permitted under the applicable contract. Accordingly, the undersigned awards the
defendant reimbursement for all travel expenses and business meals pursuant to the
contract in the total amount of $175.31.
G. Subpoena Fees
The defendant requests $575.85 for subpoenas and private courier services.
Private process server fees may be taxed. U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600,
623 (11th Cir. 2000). The plaintiff does not object to any fees submitted by the
11
defendant for the service of summons and subpoenas. These costs are permitted
under 28 U.S.C. § 1920 and are recoverable under the applicable contract between the
parties. The undersigned awards the defendant these costs in the amount $575.85.
H. Postage, Computerized Research, Long Distance Phone Calls, and Federal
Express Charges
The defendant requests a total of $9,180.01 for postage, computerized research,
long distance phone calls and Federal Express. This Court has held that a party may
not recover costs for express mail, facsimile transmissions, travel expenses and expert
witness fees under 28 U.S.C. § 1920. See Tang How v. Edward J. Gerrits, Inc., 756
F.Supp. 1540, 1545-46 (S.D. Fla. 1991). The Eleventh Circuit has held that “general
copying, computerized legal research, postage [and] courthouse parking fees . . . are
clearly not recoverable” under 28 U.S.C. § 1920. Duckworth v. Whisenant, 97 F.3d
1393, 1399 (11th Cir. 1996). Reimbursement for costs associated with postage,
computerized research, long distance phone calls, and federal express, are not
expressly permitted under 28 U.S.C. § 1920, and generally should not be awarded for a
request for costs under 28 U.S.C. 1920. However, pursuant to the applicable contract,
in this case, the undersigned finds that the defendant is entitled to recover the costs
associated with postage, computerized research (Westlaw, Lexis, and Pacer research),
long distance phone calls, and Federal Express.
The undersigned finds that the defendant is entitled to an award in the sum of
$5.02 for postage costs incurred by the defendant. The defendant also submits an
expense in the amount of $7.22 for “[vendor]” Carl A. Fornaris from April 25, 2011; the
defendant’s billing records indicate this expense was incurred by Mr. Fornaris for a
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telephone call (DE# 138-4 at 3, 8/20/2012). With respect to computerized research, the
defendant seeks $9,167.77 for its costs associated with computerized Westlaw, Lexis
and Pacer research ($9,008.02 for Westaw and $159.75 for Lexis and Pacer
Research). In the response, the plaintiff argues that the defendant is not entitled to
those “costs [that the defendant] routinely and ordinarily billed to clients like SCBI, such
as transcript fees, court filing fees, Westlaw, photocopying, printing and binding,
shipping and couriers, and travel expenses” (DE# 156, 12/17/2012). Although the
plaintiff objects to the inclusion of this cost in an award of costs, the plaintiff does not
cite to any relevant case law that suggests the defendant is not entitled to such costs
pursuant to the applicable contract. The plaintiff relies solely upon 28 U.S.C. § 1920 in
support its argument that these expenses are not permitted. The undersigned
disagrees and finds that the defendant is entitled to these expense pursuant to the
applicable contract. The undersigned awards the defendant costs of $9,180.01 for the
costs of postage, computerized research, long distance phone calls and Federal
Express.
I. Other Expenses
The undersigned finds that the defendant may not recover costs associated with
items for which the defendant did not provide adequate documentation. The defendant
is entitled to recover all reasonable costs pursuant to the applicable contract, but this
Court may disallow costs for which no supporting documentation is provided. The
defendant’s internal billing record lists the following costs without providing adequate
documentation: (1) an expense in the amount of $350.00 from “[vendor]” “CitiBusiness
Card” charged by David E. Hirsch on 8/17/2010; (2) an expense in the amount of
13
$2,780.60 for Deiter Stephens & Durham for “[p]rofessional services Through February
2012" on 2/19/2012; (3) an expense in the amount of $7,950.00 for “Whitecap
Consulting Group, LLC” on 5/29/2012; and (4) an expense in the amount of $172.50 for
American Express relating to a transaction made through “AICPA Betty Davis” (DE#
153-1 at 12-14 (11/15/2012). While the undersigned does find that the defendant is
entitled to all reasonable costs recoverable under the statute and the applicable
contract, the defendant is not entitled to receive reimbursement for costs inadequately
documented in the Bill of Costs and the Motion for Attorneys’ Fees and Costs.
Because the defendant failed to provide adequate documentation for the costs listed in
this section, the amount of costs should be reduced by $11,253.10.
In sum, the defendant’s costs request should be reduced by $11,965.40. In
accordance with the forgoing, the undersigned awards the defendant costs in the
amount of $32,756.39.
II. Attorney’s Fees
A. Entitlement to Attorney’s Fees
On October 1, 2012, this Court granted the Defendant’s Motion to Determine
Entitlement to Attorneys’ Fees and Costs (DE# 144, 10/1/12) and directed the
defendant to file its motion for fees and costs within 20 days. The defendant is entitled
to receive reasonable attorneys’ fees in this matter.
B. Amount of Fee Award
Having determined that the defendant is entitled to an award of attorney’s fees
incurred in connection with the defense of this lawsuit, the undersigned next addresses
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the appropriate amount of that fee award. The lodestar method governs the process
for determining attorneys’ fees. See Norman v. Housing Authority of City of
Montgomery, 836 F.2d 1292 (11th Cir. 1988). In calculating the loadstar, the court
must first consider the number of hours reasonably expended on this litigation, together
with the customary fee charged in this community for similar legal services. See
Henesley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983); Loranger v. Steirheim, 10
F.3d 766 (11th Cir. 1994). These two figures are then multiplied together, resulting in a
sum that is the lodestar figure. Furthermore, a lodestar figure that is “based upon a
reasonable number of hours spent on a case multiplied by a reasonable hourly rate is
itself strongly presumed to be reasonable.” RTC v. Hallmark Builders, Inc., 996 F.2d
1144, 1150 (11th Cir. 1993). Under certain circumstances, the lodestar may be
adjusted in order to reach a more appropriate attorney’s fee. See Blum v. Stenson, 465
U.S. 886, 888, 104 S.Ct. 1541, 1544 (1984).
1. Reasonable Hourly Rate
The Court must first evaluate 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 to similar services. See Norman, 836
F.2d 1292, 1299. The Supreme Court has held that a reasonable hourly rate is to be
measured by “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience and reputation.”
Loranger, 10 F.3d 776, 781. In determining the prevailing market rates, the Court
should consider several factors including “the attorney’s customary fee, the skill
15
required to perform the legal services, the attorney’s experience, reputation and ability,
the time constraints involved, preclusion from 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, Dillary v.
City of Elba, 863 F.Supp. 1550, 1552 (M.D. Ala. 1993). The defendant seeks an award
of attorneys’ fees for the services provided by their attorneys from Greenberg Traurig,
P.A. (“Greenberg”). In the motion, the defendant requests reimbursement in the
amount of $348,022.75 for attorneys’ fees for the work performed by Greenberg’s
litigation team. The plaintiff objects to the hourly rates requested by the following:
Greenberg’s partners Ricardo A. Gonzalez, and Carl Fornaris; Greenberg’s associates
Jonathan J. Rodriguez, Vanessa P. Kuljis, Eva M. Spahn and Jason P. Sternberg; and
Greenberg’s paralegals Robert Rivera, Adria Harrison, King T. Lo, Dania Vasquez, and
Farah Marne.
The defendant requests an hourly rate of $475.00 for attorney Ricardo A
Gonzalez, $610.00 for attorney Carl Fornaris,4 $285.00 for attorneys Jonathon J.
Rodriguez and Vanessa P. Kulhis, $290.00 for attorney Eva M. Spahn, $305.00 for
attorney Jason P. Sternberg, $215.00 for “senior” paralegal Robert Rivera, $230.00 for
“senior” paralegal Adria Harrison, $125.00 for “junior” paralegal King T. Lo, $155.00 for
paralegal “juinor” Dania Vasquez, and $215.00 for “senior” paralegal Farah Marne. In
support of these requests, the defendant submitted (1) the affidavit of Greenberg’s
4
Based on the documentation provided by Greenberg, the only hourly rates that
increased over the course of the lawsuit were those of Mr. Fornaris ($550.00 in 2010,
then $610.00 in 2011-2012) and Mr. Gonzalez ($380.00 in 2010, then $475.00 in 20122012). (DE 153 - 1 at 6, 11/15/2012).
16
partner Ricardo A. Gonzalez; (2) an article published in the Daily Business Review,
titled “Special Report, Lawyer Compensation Survey, The $925.00 Man,” dated October
8, 2012; and (3) recent caselaw from the Southern and Middle Districts of Florida.
In its response, the plaintiff contends that the defendant failed to provide
sufficient evidence in support of the hourly rates for Greenberg’s partners and associate
attorneys in relation to those rates in the community for similar services by lawyers of
comparable experience, skill, and reputation (DE# 156 at 3, 12/17/2012). Specifically,
the plaintiff claims that as an attorney with 12 years of experience, Ricardo A. Gonzalez
requests a rate that is awarded to attorneys with twice his experience. Id. Additionally,
the plaintiff requests that the Court decrease the hourly rate requested for Greenberg’s
“senior” and “junior” paralegals to $100.00 per hour. Id. at 4.
Generally, acceptable proof of the market rate may be comprised of testimony
and direct evidence from other legal service provided and the prevailing market rate for
such work. Norman, 836, F.2d at 1299. Furthermore, the court may make a fee award
based on its own experience where documentation and testimony is inadequate or the
fees claimed seem expanded. Norman, 836 F.2d at 1303 citing Davis v. Board of
School Commissioners of Mobile County, 526 F.2d 865, 868 (5th Cir. 1976).
Having considered and weighed the evidence, counsels’ reputation and
experience in the areas of the applicable law and the Court’s familiarly with attorneys
and related fees in the Southern District of Florida, the undersigned finds that the
current hourly rates requested by the defendant are excessive, with the exception of the
$100.00 hourly rate for litigation support analyst Charles M. Gantz.
The Court must consider the customary hourly fees charged in this community
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for similar services. See Norman, 836 F.2d at 1299. Accordingly, for Greenberg’s
partners, the undersigned finds that an hourly rate of $500.00 per hour is appropriate
for Mr. Fornaris and an hourly rate of $350.00 per hour is appropriate for Mr. Gonzalez,
both of which are reasonable rates of compensation for attorneys with similar
credentials to Mr. Fornaris and Mr. Gonzalez practicing in the Southern District of
Florida. The undersigned further finds that an hourly rate of $250.00 per hour is
appropriate for Greenberg’s associates: Mr. Rodriguez, Ms. Kuljis, Ms. Spahn, and Mr.
Sternberg. The undersigned finds that an hourly rate of $125.00 per hour is appropriate
for Greenberg’s senior paralegals: Mr. Rivera, Ms. Harrison, and Ms. Marne. The
undersigned finds that an hourly rate of $100.00 per hour is appropriate for Greenberg’s
junior paralegals: Mr. Lo and Ms. Vasquez. The undersigned finds that $100.00 is a
reasonable rate to award for the time incurred by Ms. Agno, and finds that $100.00 is a
reasonable rate to award for the time incurred by Mr. Gantz.
Based on the hourly rate reductions, the undersigned finds the following fees are
the maximum fees that could be awarded:
Timekeeper
Hourly Rate
Total Fee Award
Mr. Fornaris
10.60 hours at $500/hour
$
Mr. Gonzalez
461.20 hours at $350/hour
$161,420.00
Mr. Rodriguez
458.50 hours at $250/hour
$114,625.00
Ms. Kuljis
59.90 hours at $250/hour
$ 14,975.00
Ms. Spahn
2.40 hours at $250/hour
$
600.00
Mr. Sternberg
9.30 hours at $250/hour
$
2,325.00
Mr. Rivera
30.40 hours at $125/hour
$
3,800.00
18
5,300.00
Ms. Harrison
11.50 hours at $125/hour
$
1,437.50
Ms. Marne
6.60 hours at $125/hour
$
825.00
Mr. Lo
12.50 hours at $100/hour
$
1,250.00
Ms. Vasquez
1.70 hours at $100/hour
$
170.00
Mr. Gantz
0.20 hours at $100/hour
$
20.00
Ms. Ango
1.20 hours at $100/hour
$
120.00
1,066 hours
$ 306,867.50
Totals:
These new hourly rates equal a reduction of $41,155.25 from the requested fee
amount. Before any of the other reductions outlined below, based on the hourly rate
reductions for the partners, associates, paralegals and other members of defense
counsel’s litigation team outlined above, the “requested” fee amount in this matter is
reduced from $348,022.75 to $306,867.50.
2. Hours Reasonably Expended
The Court must next evaluate the reasonableness of the hours expended by the
defendant’s counsel in terms of the total hours expended. A fee applicant must provide
specific and detailed evidence to establish that the time for which compensation is
sought was reasonably expended on the litigation. ACLU of Ga. v. Barnes, 168 F.3d
423, 428 (11th Cir. 1999). In the instant case, the defendant’s motion requests
reimbursement for a total of 1,066 hours. The defendant supports its fee request by
submitting itemized bills, fee spreadsheets and various affidavits. The plaintiff seeks to
reduce the amount of requested attorneys fees. Based on the hourly rates of each
member of the litigation team and number of hours expended, the defendant’s bill for
attorneys’ fees reflects an amount of $386, 226.00 (DE# 153-1 at 11, 11/15/2012). It is
19
clear that the defendant applied an internal reduction process for this bill because the
defendant is only seeking attorneys’ fees in the amount of $348,022.755.
The plaintiff argues the number of hours expended by the defendant’s six
attorneys (1,001.9 hours) is excessive and should be reduced given the claims asserted
and Greenberg’s expansive litigation team (DE# 156 at 5, 12/17/2012). The plaintiff,
however, fails to request an appropriate reduction for the number of hours submitted by
the defendant. The defendant seeks a total of 1,066 hours, of which 1,001.9 hours of
work were performed by six attorneys. The defendant also seeks 64.1 hours for work
performed by paralegals and other members of the defendant’s litigation team. After
the hourly rate reduction discussed above, the requested amount is reduced to
$306,867.50 and as described below, is further subject to a 20% reduction.
This Court must exercise independent judgment when reviewing a claim for
hours reasonably expended. See Norman, 836 F.2d 1292, 1301-02 (11th Cir. 1988). It
is important to keep accurate and current records of work done and time spent on a
case, especially when a third party, i.e., someone other than the client, may pay the
bills. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). 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); see also
Loper v. New York City Police Dep’t, 853 F.Supp. 716, 721 (S.D.N.Y 1994) (“where
adequate contemporaneous records have not been kept, the court should not award
5
The spreadsheet for attorneys’ fees provided by the defendant reflects the sum
of $348,022.75 as the “[a]mount inclusive of discount.”
20
the full amount requested”). Furthermore, the Eleventh Circuit recognizes that:
[r]edundant hours generally occur where more than one attorney
represents a client. There is nothing inherently unreasonable about a client
having multiple attorneys, and they may be compensated if they are not
unreasonably doing the same work and are being compensated for the distinct
contribution of each lawyer.
Norman v. Housing Authority, 836 F.2d 1292, 1301-1302 (11th Cir. 1988) (citing
Johnson v. University College of University of Alabama in Birmingham, 706 F.2d 1205,
1208 (11th Cir.), cert. denied, 464 U.S. 994 (1983)). Thus, to recover time for multiple
attorneys, the fee applicant bears the burden of showing that the time spent by those
attorneys reflects the distinct contribution of each lawyer to the case and the customary
multiple-lawyer litigation. ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999).
Because the fees requested are voluminous in the case at bar, this Court is not
required to engage in an hour-by-hour analysis. Loranger v. Stierheim, 10 F.3d 776,
783 (11th Cir. 1994); Trujillo v. Banco Central del Ecuador, 229 F. Supp. 1369, 1375
(S.D. Fla. 2002); cf. Norman, 836 F.2d at 1301. “[i]t is sufficient for the court to provide
a concise but clear explanation of its reasons for the reduction.” Loranger, 10 F.3d at
783. The rule in Loranger differs rom the rule articulated in Norman. Trujillo, 229 F.
Supp. at 1375. “The easier decision in Norman requires the district court to specifically
identify any disallowed, non-compensable hours, and to further explain why the hours
are being disallowed.” Id. (citing Norman, 836 F.2d at 1304).
In the instant matter, after reviewing the defendant’s submitted hours, the
undersigned finds that some of the hours of the various partner attorneys, associate
attorneys, and paralegals are periodically duplicative. Accordingly, reductions in the
amount of requested fees are warranted because there are tasks performed by more
21
than one attorney. There is excessive billing by timekeepers and excessive time spent
on tasks such as preparation for motions and research, and there is block billing. With
respect to the work performed by the defendant’s paralegals, the undersigned finds that
the 64.1 hours requested by the defendant include some duplicative work performed by
reviewing attorneys as well. By way of example to demonstrate block billing, one entry
for junior paralegal King T. Lo on 6/12/2012 states “[t]rial preparation. Continuation of
preparing binders of documents relating to Jennifer Sierra and Claudia Espriella.
Creating indices of all documents binders and documents” (DE# 153-1 at 9,
11/15/2012). Furthermore, some of the hours are clerical in nature and are therefore
not subject to reimbursement in their entirety. See For Play Limited v. Bow to Stern
Maintenance, Inc., 2006 WL 36623339, *7 (S.D.Fla. Nov. 6, 2006) (King, J.) (it is within
the court’s discretion to deny compensation for “paralegals performing clerical functions
such as organizing files, copying documents, checking the docket, updating files,
checking court dates and delivering papers”). In addition, there are several instances
where Mr. Gonzalez, along with other members of the litigation team, bill for the same
tasks performed on the same day (DE #153-1 at 6-14, 11/15/2012). The undersigned
finds that an overall reduction for the number of attorneys’ fees is warranted.
For the reasons outlined above, the undersigned finds that a reduction of 20%
for the amount of attorney fees requested by the defendant is appropriate. As
discussed above, based on the reduction of hourly rates for the defendant’s partners
and associates in this matter, the undersigned finds that the requested amount of fees
for the total 1,066 hours spent should be reduced from $348,022.75 to $306,867.50.
The $306,867.50 should be reduced by $61,373.50 (20%) to $245,494.00.
22
The undersigned finds an award of $245,494.00. for the fees requested in the
defendant’s motion is the appropriate amount of fees to be awarded in this matter.
CONCLUSION
In accordance with the forgoing order, the Defendant’s Motion for Attorneys’
Fees and Costs Pursuant to Court’s October 1,2012 Order (DE# 153, 11/15/2012) is
GRANTED in part and DENIED in part and the defendant is awarded $32,756.39 in
costs and $245,494.00 in fees, for a total fee and cost award of $278,250.39.
DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of March,
2013.
_________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
All counsel of record
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