Flava Works, Inc. v. A4A Reseau, Inc. et al
Filing
228
ORDER Denying Without Prejudice 221 Defendants' Motion to Compel. Signed by Magistrate Judge Jonathan Goodman on 12/7/2022. See attached document for full details. (dw00)
Case 1:14-cv-23208-JAL Document 228 Entered on FLSD Docket 12/07/2022 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-23208-CIV-LENARD/GOODMAN
FLAVA WORKS, INC.,
Plaintiff,
v.
A4A RESEAU, INC. et al.,
Defendants.
__________________________/
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’
MOTION TO COMPEL SEIZURE AND SALE
The Court entered a judgment for $81,958.72 in attorney’s fees, costs, and postjudgment interest against Plaintiff Flava Works, Inc. (“Flava”). [ECF No. 167]. On
December 7, 2018, the Clerk issued a Writ of Execution in the amount of $81,958.72. [ECF
No. 173]. Defendants filed a Motion for Proceedings Supplementary and to Implead
Phillip Bleicher pursuant to Florida Statute § 56.29. [ECF No. 174]. United States District
Judge Joan A. Lenard granted the motion by default and on the merits, finding that the
jurisdictional prerequisites were met to initiate proceedings supplementary under
Florida Statute § 56.29 and to implead third-party Phillip Bleicher. [ECF No. 190, pp. 56].
Case 1:14-cv-23208-JAL Document 228 Entered on FLSD Docket 12/07/2022 Page 2 of 6
Defendants then filed a motion for seizure and sale of Flava and Bleicher’s
intellectual property. [ECF No. 191]. The District Court granted Defendants’ motion,
directed the U.S. Marshal to seize Flava and Bleicher’s intellectual property for sale at
judicial auction, and awarded Defendants attorneys’ fees and costs (with interest) in an
amount to be determined. [ECF No. 218]. The Order required the parties to meet and
confer over the fee and cost amount and permitted Defendants to file a motion with the
Court if the parties were unable to agree. Id.
After this Order was entered, Bleicher submitted a notice to the court, attaching a
voluntary petition for bankruptcy which was filed in the Northern District of Illinois.
[ECF No. 220]. The bankruptcy case was dismissed on August 2, 2022. [ECF No. 221-1].
Defendants’ current motion makes two requests: (1) “an order exercising the
previous Order seizing the referenced property and scheduling sale of the same”; and (2)
an attorneys’ fee award of $124,686.43. [ECF No. 221]. Flava filed a response [ECF No.
226] and Defendants filed an optional reply [ECF No. 227]. For the reasons discussed
below, the Undersigned denies without prejudice Defendants’ motion.
Although Defendants’ motion provides an in-depth summary of the case’s
procedural history, the legal grounds for either of their requests are threadbare. The
specific relief sought, as well as the grounds for the requested relief, does not become any
clearer when reviewing either Flava’s response or Defendants’ reply.
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Defendants’ first requested relief is that the Court enter “an order exercising the
previous Order seizing the referenced property and scheduling sale of the same.” [ECF
No. 221]. However, Defendants have not explained why an additional Order is necessary.
No stay was ever formally entered in this case, no appeal of the original Order was ever
taken, there has been no subsequent Order which has vacated the Court’s prior Order,
nor has there been any indication that the Marshal or a party is refusing to comply.
Although Defendants included a “memorandum of law” section in their motion, there is
no law actually included in the section. Instead, it is pure attorney rhetoric and citations
to the docket.
The confusion over this request is compounded by the fact that Flava argues that
if this Court grants Defendants’ attorney fee request, then Flava is entitled to a “jury trial
[to] determin[e] which of [Flava’s] assets will be auctioned, in what order, and how much
of [Flava’s] monetary obligations to [Defendants] . . . will be defrayed by such sales.”
[ECF No. 226]. Defendants have not made the issue any clearer, simply saying in their
reply that Flava has failed to preserve any right to a jury trial. [ECF No. 227].
There is also uncertainty over whom Defendants are seeking a judgment against.
Defendants argue in their reply that the response was filed by only Flava, which means
that Bleicher has defaulted. Defendants claim that “[t]he Motion seeks relief against
Bleicher with regard to a small number of copyrights and Internet domain names” and
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because Bleicher has failed to respond “A4A is entitled to the relief sought from Bleicher,
by default.”
Defendants admit in their motion that Bleicher had submitted to them a check for
$81,958.72, which was the initial judgment entered by the Court [ECF No. 167]. [ECF No.
221]. Because the Court has already ruled that Bleicher (the impleaded third party) cannot
be liable for attorneys’ fees in proceedings supplementary [ECF No. 218], the
Undersigned does not know what additional relief Defendants are seeking from Bleicher.
Moreover, based on Defendants’ comments that “A4A is entitled to relief . . .,” the
Undersigned is also uncertain whether both Defendants are seeking relief against
Bleicher or just A4A.
In summary, on the issue of the requested order to compel, Defendants have failed
to explain the nature of the relief they are seeking, the grounds for the relief they are
seeking, against whom they are seeking relief, and on whose behalf they are seeking
relief.
Defendants’ second request concerns the amount of attorneys’ fees which should
be awarded following the Court’s determination that Defendants were entitled to
attorneys’ fees pursuant to Sections 57.115 and 56.29(8), Florida Statutes.
Motions for attorneys’ fees are governed by Southern District of Florida Local Rule
7.3, which, among other things, requires the fee-seeking party’s motion to “disclose the
terms of any applicable fee agreement,” “provide the identity, experience, and
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qualifications for each timekeeper for whom fees are sought,” and “be verified.”
Defendants’ motion fails to fully meet those requirements.1
In addition, despite including a memorandum of law section in their motion,
Defendants offer no authority which would support this Court awarding attorneys’ fees
for fees incurred in an ancillary bankruptcy proceeding in another jurisdiction. Flava
contends in its response that this is impermissible (without citing any pertinent
supporting legal authority). In Defendants’ reply, without offering their own supporting
authority, they say only that Defendants’ cases do not apply. Thus, neither side has
offered any applicable legal authority which would support or prohibit such an award.
Moreover, Defendants have failed to meaningfully explain why their requested
fees are reasonable and failed to offer any insight into the attached billing records. Indeed,
some of the billing entries appear to possibly be redundant. For example, Defendants
seek to recover attorneys’ fees for work done by Bruce Menkes [ECF No. 221-3], but in
the billing records from Mr. Bradley’s firm, there is also a $19,334.25 fee for
“Reimbursable expenses: Bruce Menkes Invoice” [ECF No. 221-2]. Without any
The only information Defendants offer on the “identity, experience, and
qualifications” of their timekeepers is that John F. Bradley and Daniel S. Polley both have
more than 32 years of intellectual property litigation experience and Bruce Menkes has
more than 38 years of bankruptcy litigation experience. Defendants did not substantiate
either of these claims with an affidavit, explain the nature of their experience or position
within their firms, nor did Defendants identify any of the other timekeepers other than
to say that law clerks and paralegals are billed at $150.00 an hour.
1
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meaningful analysis from Defendants on the specifics of their fee request, the
Undersigned cannot be certain for which billing entries recovery is being sought.
Because of the deficiencies surrounding both of Defendants’ requests, the
Undersigned denies Defendants’ motion without prejudice.
If Defendants choose to again seek the requested relief, then they shall file two
separate motions. The request for an additional Order concerning the seizure and sale of
Flava and Bleicher’s intellectual property shall contain a memorandum of law and shall
also cure the other deficiencies identified in this Order. Defendants’ attorneys’ fees
motion shall comply with the Local Rules and shall contain a memorandum of law
supporting all requested attorneys’ fees. Additionally, the submitted billing records shall
include only fees for which Defendants are seeking to recover. Defendants shall remove
any fees which are redundant or for which an award has previously been entered.
DONE AND ORDERED in Chambers, in Miami, Florida, on December 7, 2022
Copies furnished to:
The Honorable Joan A. Lenard
All counsel of record
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