Silva v. Pro Transport, Inc. et al

Filing 84

OPINION AND ORDER ADOPTING AND MODIFYING REPORT AND RECOMMENDATIONS ; adopting Report and Recommendations re 80 Report and Recommendations. Signed by Judge Robert N. Scola, Jr on 5/18/2017. (yha)

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United States District Court
for the
Southern District of Florida
Julio Antonio Silva, and others,
Plaintiffs
v.
Pro Transport, Inc., and others,
Defendants

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Civil Action No. 15-23028-Civ-Scola
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Order Adopting and Modifying Magistrate’s Report and Recommendation
The Court referred this matter to United States Magistrate Judge Alicia
M. Otazo-Reyes for a report and recommendation on the Defendants’ statement
of reasonable fees and costs (ECF No. 66) and the Plaintiff’s motion to strike
the Defendants’ statement (ECF No. 67). (Order, ECF No. 70.) After extensive
briefing, Judge Otazo-Reyes issued a report recommending that the Defendants
be awarded the sum of $45,984.80 as fees and $254.34 in costs, for a total
award of $46,239.14. (Report #2, ECF No. 80.) The Plaintiff, Julio Antonio
Silva, filed Objections to the Report. (Objections, ECF No. 81.) In addition, Silva
filed a motion to stay this Court’s ruling on the Report. (Mot., ECF No. 82.)
Silva’s objections––in other words, his newest attempt to re-litigate the
underlying summary judgment motion––fail to give rise to de novo review.
Kohser v. Protective Life Corp., No. 15-11704, 2016 WL 2587169, at *2 (11th
Cir. May 5, 2016). Nonetheless, the Court conducted a de novo review. See 28
U.S.C. § 636(b)(1)(C). Having considered Judge Otazo-Reyes’s report, the
record, the objections, and the relevant legal authorities, this Court denies
Silva’s motion to stay its ruling (ECF No. 82) and adopts and modifies Judge
Otazo-Reyes’s report and recommendation for the reasons explained below.
1. Motion to Stay
Silva seeks a stay of this Court’s ruling on Judge Otazo-Reyes’s report.
(Mot. to Stay, ECF No. 82.) Silva claims that this Court should refrain from
adopting Judge Otazo-Reyes’s report determining the amount of the sanctions
award already granted by this Court because the Eleventh Circuit has under
review on rehearing en banc Slater v. U.S. Steel Corp., 820 F.3d 1193, 1195
(11th Cir. 2016). In Slater, the Eleventh Circuit will consider the substantive
issue of whether the doctrine of judicial estoppel as applied in Burnes v. Pemco
Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), should be overruled. The Court
can only construe the motion to stay as a flagrant misunderstanding of the

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procedural posture of this case and of the actual substantive issue before the
Court.1
The motion to stay is merely the latest of Silva’s efforts to attack the
Court’s order granting summary judgment in favor of the Defendants. A brief
review of the history of this case highlights the impropriety of requesting a stay
at this juncture. On January 13, 2016, this Court granted the Defendants
motion for summary judgment, finding that Silva had deliberately concealed
his FLSA claim from the bankruptcy court and had attempted to remedy this
nondisclosure only once the Defendants challenged the omission. The Court
thus determined that judicial estoppel precluded Silva from pursuing his FLSA
claim. The Court relied on sound Eleventh Circuit binding precedent in
deciding the motion for summary judgment.2 See United States v. Schooner
Peggy, 5 U.S. 103, 110 (1801) (“[T]he court must decide according to existing
laws . . . .”). On the same day, the Court entered final judgment in favor of the
Defendants. Silva never appealed that Judgment, and the time to do so has
long since passed. See 28 U.S.C. §§ 1291, 2107; Fed. R. App. P. 4.
In its order granting summary judgment, the Court advised the
Defendants that if they so wished, they could still seek sanctions against Silva
by filing a separate motion. On January 27, 2016, the Defendants filed two
motions for sanctions against Silva and Silva’s counsel, J.H. Zidell, pursuant to
28 U.S.C. § 1927, the Court’s inherent power, and Rule 11 of the Federal Rules
of Civil Procedure. After numerous pleadings, on September 30, 2016, this
Court adopted Judge Otazo-Reyes’s report and recommendation, and
sanctioned Silva and Zidell in the entire amount of reasonable attorney’s fees
and costs incurred by Defendants since the inception of the case. The only
issue remaining for this Court’s determination was the exact dollar amount of
those fees and costs.
Again, after further extensive pleadings, on April 26, 2017, Judge OtazoReyes issued the present report and recommendation, in which she determined
the reasonable amount of fees and costs that would be assessed against Silva
and Zidell. This amount—and only this amount—constitutes the substantive
What is more, the motion to stay and Silva’s objections to the report and recommendation
make patently clear that Silva’s counsel, J.H. Zidell, remains undeterred in his quest to
“multipl[y] the proceedings in [this] case unreasonably and vexatiously.” See 28 U.S.C. § 1927.
2 The Court notes that at no point in the proceedings leading up to the summary judgment
order did Silva ever advance “a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law . . . .” See Fed. R. Civ. P. 11(b)(2). Instead, Silva argued
only that he “moved to amend the schedule[] and only a small amount of time ha[d] passed
under the Chapter 13 plan . . . .” (Resp. 6, ECF No. 28.)
1

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issue before the Court at this time. Therefore, Silva’s attempt to stay any ruling
on the amount of sanctions based on a pending appeal in an unrelated
proceeding concerning the substantive issue of law underlying a final judgment
that has been final for over one year strongly suggests an unreasonable and
vexatious multiplication of the current proceedings.
The appellate proceedings in Slater have absolutely zero impact on the
substantive disposition of this case and, if it were possible, even less of an
impact on the determination of amount of attorney’s fees and costs that will
comprise the sanctions award. Zidell continues, inexplicably, to miss the point
of the sanctions proceedings. This Court sanctioned Zidell on three different
bases: (1) under this Court’s inherent powers for bad faith and vexatious or
oppressive conduct; (2) under 28 U.S.C. § 1927 for vexatious and unreasonable
multiplication of proceedings; and (3) under Rule 11 of the Federal Rules of
Civil Procedure for misrepresentations to the Court and failure to conduct even
a de minimus inquiry into the facts or law informing this case.3 Nothing in
Slater changes Silva’s and Zidell’s underlying conduct.
Accordingly, the Court denies Silva’s motion to stay its ruling on the
Magistrate Judge’s report and recommendation (ECF No. 82).
2. Amount of Reasonable Attorney’s Fees and Costs
Silva’s objections to Judge Otazo-Reyes’s report copy verbatim his
arguments raised in previous filings. (Compare ECF No. 81 at 1 with ECF No.
62 at 4, 14; compare ECF No. 81 at 2 with ECF No. 62 at 5; compare ECF No.
81 at 4 with ECF No. 72 at 2–3; compare ECF No. 81 at 6 with ECF No. 62 at 8;
compare ECF No. 81 at 7 with ECF No. 62 at 16.) Without providing any legal
support, Silva’s only new argument asserts that the Court should apportion the
sanctions award “50/50” between Silva and Zidell, instead of jointly and
severally. (Mot. at 7.) Silva claims he “has no funds” to pay the sanctions
award, and Zidell believes he should “not [be] saddled paying 100% of the”
sanctions award. (Id.) Essentially, then, Zidell unabashedly requests a 50
percent reduction of an already reduced sanctions award.
Regardless, the Court will not consider Silva’s argument regarding
apportionment of the sanctions award between Silva and Zidell. Other than the
above unsupported factual assertions, Silva proffers no reasoning whatsoever
to support his argument. Generally, a “litigant who fails to press a point by
supporting it with pertinent authority, or by showing why it is sound despite a
lack of supporting authority or in the face of contrary authority, forfeits the
See Judge Otazo-Reyes’s report and recommendation on the motions for sanctions (ECF No.
61) and the Court’s order adopting the report (ECF No. 65) for a more detailed description of
Silva’s and Zidell’s underlying conduct.
3

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point. The court will not do his research for him.” Phillips v. Hillcrest Medical
Center, 244 F.3d 790, 800 n.10 (10th Cir. 2001) (internal quotation omitted);
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to put flesh on its
bones.”) (internal quotation omitted).
The Court did review, however, Judge Otazo-Reyes’s lodestar
calculations. Judge Otazo-Reyes determined that $224 per hour constituted a
reasonable hourly rate because the rate reflected the average of the Defendants’
counsel’s several billing rates and because Silva did not object to this rate.
(Report #2 at 3.) Judge Otazo-Reyes then found, based on her own expertise,
that the 307.8 hours of time claimed by the Defendants was excessive and
reduced that total by one-third. (Id.) Judge Otazo-Reyes also included costs in
the sanctions award. (Id. at 4.) Finally, Judge Otazo-Reyes denied the
Defendants’ request to recover fees for the time spent litigating the fee amount
because the “Defendants’ original fee request already included the hours spent
litigating the Sanctions Motions.” (Id.)
“Courts have broad discretion to determine what fees are reasonable
under the circumstances. Squire v. Geico Gen. Ins. Co., No. 12-23315-CIV, 2013
WL 474705, at *3 (S.D. Fla. Feb. 7, 2013) (Altonaga, J.). “The starting point in
fashioning an award of attorney’s fees is to multiply the number of hours
reasonably expended by a reasonable hourly rate.” Loranger v. Stierheim, 10
F.3d 776, 781 (11th Cir. 1994). The party receiving attorneys’ fees must
provide the court “with specific and detailed evidence.” Norman v. Hous. Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). And the opposing
party “must supply specific and reasonably precise proof concerning hours that
should be excluded.” Squire, 2013 WL 474705, at *5 (quoting Am. Civil Liberties
Union of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)) (internal quotation
marks and ellipses omitted). If the court determines the total hours expended
is unreasonable, it may “conduct an hour-by-hour analysis or it may reduce
the requested hours with an across-the-board cut.” Bivins v. Wrap It Up, Inc.,
548 F.3d 1348, 1350 (11th Cir. 2008).
The Court agrees that $224 per hour constitutes a reasonable hourly
rate. With respect to reasonable hours expended, the Court notes the
Defendants provided an affidavit of an expert finding the hours reasonable,
while Silva offered only unfounded and unspecified objections of “excessive
billing,” “block billing,” and “vague description” for over 60 percent of the
Defendants’ time entries. (Statement of Fees Ex. B, ECF No. 66-2; Resp. at 5–
15, ECF No. 72.) Silva’s unsubstantiated objections to the hours expended fell

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far short of the required specificity and precision. See Squire, 2013 WL 474705,
at *5. Faced with 252 time entries and 144 non-specific objections, however,
this Court finds that an across-the-board reduction by one-third is a
reasonable approach.4 See Bujanowski v. Kocontes, No. 808-CV-0390-T-33EAJ,
2009 WL 1564263, at *2 (M.D. Fla. Feb. 2, 2009), report and recommendation
adopted in part, No. 808CV390T33EAJ, 2009 WL 1564244 (M.D. Fla. May 1,
2009), aff’d, 359 F. App’x 112 (11th Cir. 2009) (“An across-the-board reduction
is appropriate where billing records are so voluminous that an hour-by-hour
analysis would require the court to engage in the pick and shovel work
necessary to make a more precise determination.”) (internal quotations
omitted).
However, the Court finds that the Defendants should recover fees and
costs incurred in litigating the fee entitlement and amount. Norelus v. Denny's,
Inc., 628 F.3d 1270, 1301 (11th Cir. 2010) (“Like other courts, we have allowed
parties to recover the cost of establishing their right to, and the amount of
attorney’s fees—the right to fees-on-fees. . . . [N]ot allowing fees-on-fees would
undermine the congressional policies behind awarding attorney’s fees.”); see
also Fed. R. Civ. P. 11(c)(2) (“If warranted, the court may award to the
prevailing party the reasonable expenses, including attorney’s fees, incurred for
the motion.”). As to fee entitlement, the Court granted the Defendants’ motions
for sanctions pursuant to 28 U.S.C. § 1927, the Court’s inherent power, and
Rule 11 of the Federal Rules of Civil Procedure, and awarded sanctions “in the
entire amount of reasonable attorney’s fees and costs incurred by Defendants
since the inception of the case . . . .” (Order at 2, ECF No. 65) (emphasis
added).
As to the fee amount, the Defendants were required “to submit their
statement of reasonable fees and costs within thirty days of entry of the Court’s
Order.” (Report #1 at 17, ECF No. 61.) When the Defendants complied with the
Court’s order, Silva initiated a string of unnecessary pleadings: a motion to
strike (ECF No, 67) and its corresponding reply (ECF No. 69); a lengthy,
unsupported response in opposition to the Defendants’ statement of fees (ECF
No. 72); a motion to strike the Defendants’ response to that opposition (ECF
No. 74) and corresponding reply (ECF No. 77); and a motion to stay this Court’s
ruling on the Magistrate Judge’s report and recommendation (ECF No. 82). The
majority of these pleadings merely regurgitate Silva’s opposition to the Court’s
Upon cursory review, the Court does not believe that the Defendants’ billing records reflect
excessive or block billing. However, in Bujanowski, the Middle District imposed an across-theboard reduction of 30 percent where it did find that the party’s time entries contained block
billing, unacceptably vague descriptions, and redundant billing. 2009 WL 1564263, at *4.
4

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order granting summary judgment in favor of the Defendants, entered far more
than a year ago. Awarding as sanctions amounts incurred as a result of further
vexatious pleadings honors the reasoning and the spirit of the order granting
the Defendants’ motions for sanctions.
The Defendants submitted a supplemental statement of fees and costs
delineating $7,241.21 in fees and $191.43 in costs. (ECF No. 73-1.) Silva
responded in opposition, again offering unfounded and unspecified objections
of “excessive billing,” and “block billing,” for over half of the Defendants’ time
entries. (ECF No. 79.) The statement includes a total of 32 hours billed from
October 19, 2016, until December 27, 2016. The Court notes that although
these hours do not include any work conducted in this case from January 1,
2017, until the present day, the Court will not entertain yet another
supplemental statement of fees. The Court will apply the same one-third
reduction for a total of 21.3 additional hours of attorney’s fees at the $224 per
hour blended rate. Thus, the Court adds $4,771.20 to the fee determination in
Judge Otazo-Reyes’s report. In addition, the Court awards the additional
$191.43 in costs incurred.
Accordingly, the Court adopts and modifies Judge Otazo-Reyes’s Report
and Recommendation (ECF No. 80). The Court awards to the Defendants the
sum of $50,756.00 as fees and $445.43 in costs, for a total award of
$51,201.77, to be paid by Silva and Silva’s counsel jointly and severally.
Done and ordered at Miami, Florida on May 18, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge