Carreras v. Collins, LLC et al
Filing
128
ORDER striking without prejudice 121 Defendant's Motion for Attorney's Fees. Signed by Magistrate Judge Jonathan Goodman on 3/29/2013. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12‐23150‐CIV‐GRAHAM/GOODMAN
LUIS A. CARRERAS, et al.,
Plaintiffs,
v.
PMG COLLINS, LLC, et al.,
Defendants.
___________________________________/
ORDER STRIKING WITHOUT PREJUDICE DEFENDANT’S MOTION FOR
DETERMINATION OF ENTITLEMENT TO ATTORNEY’S FEES AND COSTS
This Cause is before the Undersigned on Defendant PMG Collins, LLC’s
(“PMG”) Motion for Determination of Entitlement to Prevailing Party Attorney’s Fees
and Costs. [ECF No. 121]. The District Court referred the motion to the Undersigned.
[ECF No. 122]. Plaintiffs did not respond to the motion and the time to do so has now
expired.
I.
BACKGROUND
On January 15, 2013, the District Court dismissed Plaintiffs’ amended complaint
which sought, among other things, the recession of two condominium purchase
contracts signed with PMG. [See generally ECF No. 118]. On January 30, 2013, the District
Court entered an Order of Dismissal formally dismissing and closing this case. [ECF
No. 120].
On February 19, 2013, PMG filed the instant motion. [ECF No. 121]. In its motion,
PMG seeks attorney’s fees and costs as the prevailing party in disputes arising under
the condominium purchase contracts. [Id. at p. 1]. PMG states that in order to comply
with Local Rule 7.3, it sent an email to Plaintiffs’ counsel requesting that Plaintiffs first
agree that PMG is entitled to attorney’s fees and costs under the condominium
purchase contracts. [Id. at p. 2]. According to the procedure explained in PMG’s motion,
PMG would produce information regarding the amount of fees it is seeking only if
Plaintiffs agreed that PMG is entitled to attorney’s fees and costs. [Id.]. But Plaintiffs’
counsel failed to respond or confer with PMG’s counsel, as required by Local Rule 7.3,
and there is no agreement on entitlement. [Id.].
When Plaintiffs did not respond, PMG filed the motion requesting that the
District Court first determine that PMG is entitled to attorney’s fees and costs. [Id.]. The
motion did not address the amount of fees nor did it provide supporting
documentation to corroborate the amount. According to PMG, after the District Court
determines the issue of entitlement, then (assuming the District Court were to rule its
way on the entitlement issue) PMG will file a motion setting out the amount it seeks. In
short, PMG seeks to bifurcate the issues of entitlement and amount of attorney’s fees
and costs.
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In addition to not conferring with PMG, Plaintiffs did not respond to the motion1
and the time to do so has now expired. The District Court referred the motion to the
Undersigned on February 20, 2013. [ECF No. 122].
II.
DISCUSSION
PMG seeks to bifurcate the issues of entitlement and amount of attorney’s fees
and costs, but Local Rule 7.3 does not provide a mechanism for the bifurcation of these
issues. Rather, the Rule explicitly requires that a motion for attorney’s fees address both
entitlement and amount. See Local Rule 7.3; Murray v. Playmaker Servs., LLC, No. 05‐
CIV‐80885, 2007 WL 4563483, at *1 (S.D. Fla. Dec. 19, 2007) (denying motion to bifurcate
issues of entitlement and amount of attorney’s fees because Local Rule 7.3 requires
motion to address both issues); Dyett v. N. Broward Hosp. Dist., No. 03‐CIV‐60804, 2004
WL 5320628, at *1 (S.D. Fla. Apr. 26, 2004) (striking without prejudice motion for
entitlement of attorney’s fees because it violates Local Rule 7.3).
Indeed, as Magistrate Judge Brown explained in a case raising the identical issue
here, strong policy considerations favor Local Rule 7.3’s approach:
As unilaterally bifurcated by defendant, this motion would
allow for a response and a reply. Then this Court would
issue a Report and Recommendation on the issue of
entitlement to fees, which would then lead to the allowable
filing of objections thereto, and ultimately the issuance of an
order from the District Judge. If the result was a finding of
On February 26, 2013, Plaintiffs filed a notice of appeal of the District Court’s
Order. [ECF No. 123]. The pendency of an appeal does not stay a motion for attorney’s
fees and costs. Local Rule 7.3(a)(1).
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entitlement in favor of defendant, this would presumably
lead to the filing of another motion detailing hours spent
and hourly rates sought, followed by another response and
reply, followed by another Report and Recommendation,
followed by additional objections, followed, finally, by yet
another order from the District Judge ... making, at least in
this scenario, a virtual mockery of the Supreme Court
mandate in the case of Hensley v. Eckerhart, 461 U.S. 424, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Dyett, 2004 WL 5320628, at *2.
Accordingly, because the Local Rule does not authorize PMG’s attempted
bifurcation (but actually requires a complete submission addressing entitlement and
amount) and because PMG has not obtained an order from the District Court allowing
the suggested bifurcation, the Undersigned strikes PMG’s motion without prejudice.
PMG may file a renewed fees and costs motion that complies with the conditions and
timetable set out below.2
III.
CONCLUSION
For the reasons set out above, the Undersigned ORDERS as follows:
1.
PMG’s Motion is stricken without prejudice.
To the extent that this Order extends Local Rule 7.3’s 60 day time limit to file
such motions, the Undersigned grants PMG an extension of time to file its motion. See
Comments to Local Rule 7.3 (“The authority of Judges to regulate the mechanics of fee
applications is clear.”); Luken v. Intʹl Yacht Council Ltd., No. 02‐60772‐CIV, 2009 WL
1706534, at *15 n. 12 (S.D. Fla. June 11, 2009) (Former Magistrate Judge Rosenbaum
[now District Court Judge] granted three extensions of time for a party to file its
attorney’s fees motion).
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2.
PMG may file a renewed motion for attorney’s fees and costs that
complies with Local Rule 7.3 on April 15, 2013. If PMG chooses to file such a motion,
then the following timetable and conditions apply:
a. PMG will send a copy of the motion and all supporting documents to
Plaintiffs no later than April 5, 2013.
b. After sending its motion and supporting documents to Plaintiffs, PMG
will attempt to confer with Plaintiffs to resolve any disputes regarding
PMG’s motion.
c. In its motion, PMG will set out the steps it took to confer with Plaintiffs.
DONE AND ORDERED in Miami, Florida, this 29th day of March, 2013.
Copies furnished to:
The Honorable Donald L. Graham
All counsel of record
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