Rodriguez v. GeoVera Specialty Insurance Company

Filing 178

ORDER granting in part and denying in part (161) Motion for Attorney Fees in case 1:18-cv-23585-JJO; granting in part and denying in part (138) Motion for Attorney Fees in case 1:19-cv-21173-JJO. Signed by Ch. Magistrate Judge John J. O'Sullivan on 11/19/2020. See attached document for full details. (mkr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 19-21173-CIV-O=SULLIVAN
Case No. 18-23585-CIV-O’SULLIVAN
[CONSENT]
JOSE RODRIGUEZ and
MARCEE K. RODRIGUEZ,
Plaintiffs,
v.
GEOVERA SPECIALTY
INSURANCE COMPANY,
Defendant.
________________________________/
ORDER
THIS MATTER is before the Court on the Plaintiffs Jose Rodriguez’s and Marcee
K. Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for
Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.
18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20).
BACKGROUND
This matter stems from two breach of contract actions brought by Jose
Rodriguez and Marcee K. Rodriguez (collectively, “plaintiffs”) against their homeowner’s
insurance carrier, GeoVera Specialty Insurance Company (hereinafter “defendant”). The
cases were consolidated and on February 26, 2020, the jury returned a verdict in favor
of the plaintiffs in both cases in the total amount of $111,087.63. See Verdict Form (DE#
119 in Case No. 19-cv-21173-JJO; DE# 142 in Case No. 18-cv-23585-JJO, 2/27/20).
Consistent with the jury’s verdict, the Court entered a final judgment in favor of the

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plaintiffs and against the defendant on the same day. See Final Judgment (DE# 113 in
Case No. 19-cv-21173-JJO; DE# 136 in Case No. 18-cv-23585-JJO, 2/26/20).
On March 24, 2020, the plaintiffs filed a motion to tax costs in the amount of
$59,788.87. See Plaintiffs Jose Rodriguez's and Marcee K. Rodriguez's Motion to Tax
Costs and Supporting Memorandum of Law, Sworn Bill of Costs and Supporting
Documentation (DE# 129 in Case No. 19-cv-21173-JJO; DE# 152 in Case No. 18-cv23585-JJO, 3/24/20). “In the reply, the plaintiff[s] agreed to reduce the amounts
requested for mediation, travel, research, courier/shipping charges, and parking” by
$6,739.56, thereby reducing their costs to $53,049.31. See Order (DE# 145 in Case No.
19-cv-21173-JJO; DE# 168 in Case No. 18-cv-23585-JJO at 2 n. 1, 5/26/20). Of this
amount, the Court awarded the plaintiffs $9,175.97 in taxable costs pursuant to 28
U.S.C. § 1920. Id. at 23.
On May 13, 2020, the plaintiffs filed the instant motion for attorney’s fees and
costs. See Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to
Determine Amount of Attorneys’ Fees and Costs, for Lodestar Multiplier, and for
Entitlement to Prejudgment Interest (DE# 138 in Case No. 19-cv-21173-JJO; DE# 161
in Case No. 18-cv-23585-JJO, 5/21/20) (hereinafter “Motion”). The defendant filed its
response in opposition on June 8, 2020. See Response in Opposition to Plaintiffs Jose
Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to Determine Amount of
Attorneys’ Fees And Costs, for Lodestar Multiplier, and for Entitlement to Prejudgment
Interest (DE# 148 in Case No. 19-cv-21173-JJO; DE# 171 in Case No. 18-cv-23585JJO, 5/21/20) (hereinafter “Response”). The plaintiffs filed their reply on June 18, 2020.
See Plaintiffs Jose Rodriguez and Marcee K. Rodriguez’s Reply to Defendant’s

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Response in Opposition to Plaintiffs[’] Verified Motion to Determine Amount of
Attorneys’ Fees and Costs, for Lodestar Multiplier, and for Entitlement to Prejudgment
Interest and Objection to Defendant’s Request for Hearing (DE# 155 in Case No. 19-cv21173-JJO; DE# 176 in Case No. 18-cv-23585-JJO, 6/18/20) (hereinafter “Reply”).
This matter is ripe for adjudication.
REQUEST FOR HEARING
The defendant requests a hearing on the instant Motion. Response at 1-2. The
plaintiffs object to the defendant’s request for a hearing stating that “it is not necessary
and would not serve any constructive purpose in light of the extensive expert
reports on both sides including sworn testimony by counsel and their experts and
detailed costs documentation.” Reply at 2.
The Court has carefully reviewed the parties’ filings, including their supporting
documents, and finds that a hearing on the instant motion is not necessary. “A hearing
on [a] fee issue is required ‘where an evidentiary hearing was requested, where there
were disputes of fact, and where the written record was not sufficiently clear to allow the
trial court to resolve the disputes of fact . . . . An evidentiary hearing is unnecessary for
issues about which the district court possesses sufficient expertise: ‘Such matters might
include the reasonableness of the fee, the reasonableness of the hours and the
significance of [the] outcome.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242,
1245 (11th Cir. 2003) (quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d
1292, 1303-04 (11th Cir. 1988)). Accordingly, the defendant’s request for a hearing is
DENIED.

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ANALYSIS
A.

Attorney’s Fees
The plaintiffs seek $1,337,264.42 in attorney’s fees. Motion at 1. The defendant

argues that significant reductions to the amount of fees sought by the plaintiffs are
warranted. See Response at 8-20.
1.

Entitlement

The plaintiffs obtained a judgment in their favor in the total amount of
$111,087.63. See Final Judgment (DE# 113 in Case No. 19-cv-21173; DE# 136 in Case
No. 18-cv-23585, 2/26/20). Accordingly, the plaintiffs are the prevailing party and are
entitled to an award of reasonable attorney’s fees.
2.

Amount

Having determined that the plaintiffs are entitled to an award of attorney’s fees,
the Court must next address the appropriate amount of that fee award.
In calculating a reasonable fee award, the Court must consider the number of
hours reasonably expended on this litigation, together with the customary fee charged in
this community for similar legal services. See Norman, 836 F.2d at 1299. These two
figures are then multiplied together, resulting in a sum commonly referred to as the
“lodestar.” The lodestar “embodies a presumptively reasonable fee.” Yellow Pages
Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1164 (11th Cir. 2017). Nonetheless, the
lodestar may be adjusted in order to reach a more appropriate fee award under certain
circumstances. Blum v. Stenson, 465 U.S. 886, 888 (1984).
a.

Hourly Rate

The Court must first evaluate plaintiffs’ fee request in terms of the appropriate

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hourly rate. The Supreme Court has held that a reasonable hourly rate is to be
measured by “prevailing market rates in the relevant community.” Blum, 465 U.S. at
895. In determining the prevailing market rates, the Court should consider several
factors including: “the attorneys’ customary fee, the skill required to perform the legal
services, the attorneys’ experience, reputation and ability, the time constraints involved,
preclusion from other employment, contingency, the undesirability of the case, the
attorneys’ relationship to the client, and awards in similar cases.” Mallory v. Harkness,
923 F. Supp. 1546, 1555 (S.D. Fla. 1996), aff'd, 109 F.3d 771 (11th Cir. 1997) (citing
Dillard v. City of Elba, 863 F. Supp. 1550, 1552 (M.D. Ala. 1993)).
Generally, acceptable proof of the market rate may be comprised of testimony
and direct evidence from other legal practitioners in the relevant legal community who
are familiar with the type of 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 are inadequate or the
fees claimed seem expanded. Id. at 1303 (citing Davis v. Bd. of Sch. Comm’rs of Mobile
Cty., 526 F.2d 865, 868 (5th Cir. 1976)).
The hourly rates requested for each timekeeper are outlined in the chart towards
the end of this section. See infra. The plaintiffs argue that “[t]he rates charged by the
respective Plaintiffs’ counsels are well within the range of hourly rates charged by
attorneys of similar experience in the local market.” Motion at 6-7. The plaintiffs support
the requested hourly rates with the declaration of their expert, Ramon A. Abadin, and
the affidavits of its attorneys, Anthony Accetta, Lazaro Vazquez and Eduardo Gomez.
Reply at 2; Declaration of Reasonable Attorney’s Fees in Support of Plaintiffs' Motion for

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Attorneys' Fees and Costs (DE# 138-5, 5/13/20) (hereinafter “Decl. of Pls.’ Expert”);
Certification, Verification, and Affidavit of Lazaro Vazquez (DE# 138-1, 5/13/20)
(hereinafter “Aff. of Lazaro Vazquez”); Certification, Verification, and Affidavit of Anthony
Accetta, Esquire (DE# 138-2, 5/13/20) (hereinafter “Aff. of Anthony Accetta”);
Certification, Verification, and Affidavit of Eduardo Gomez (DE# 138-4, 5/13/20)
(hereinafter “Aff. of Eduardo Gomez”). The plaintiffs have also filed state court orders
awarding fees to Mr. Accetta, Mr. Vazquez and Mr. Gomez. See State Court Fee
Orders (DE# 138-1 at 31-41;138-2 at 21-55; 138-4 at 17, 5/13/20).
The defendant’s expert opines that “the rates . . . claimed by Attorney Lazaro
Vazquez, Attorney Anthony Accetta, and Attorney Eduardo Gomez are not in keeping
with the prevailing and customary rates and hours incurred in cases of this nature in
Miami-Dade County” and proposes the following hourly rate ranges as reasonable:
“Anthony Accetta ($475 - $525); Lazaro Vazquez ($400 - $450); Eduardo Gomez ($400
- $450); Paralegal ($150); and Law Clerk ($75).” Response at 10; Declaration of
Thomas Scott (DE# 148-1 at ¶ 11, 6/8/20) (hereinafter “Decl. of Def’s Expert”). 1
The plaintiffs state that their lead counsel, 2 Anthony Accetta, “is a Board Certified

1

The defendant has also filed the affidavit of their counsel, Robert C. Groelle. See
Affidavit of Robert C. Groelle (DE# 148-4, 6/8/20). Mr. Groelle attests that his law firm
billed at hourly rates of $165.00 for partners, $145.00 for associates and $95.00 for
paralegals. Id. at ¶ 3. Mr. Groelle does not disclose the background and experiences of
these timekeepers, the number of hours his firm expended or the total amount billed for
this case. It is not uncommon for law firms to negotiate a lower hourly rate in exchange
for a higher volume of cases from an insurance carrier. Without more information, the
hourly rates charged by timekeepers at Mr. Groelle’s law firm is of limited assistance to
the Court.
2

Mr. Vazquez served as lead counsel until Mr. Accetta joined the case in August 2019
and took over as lead counsel. Declaration of Lazaro Vazquez (DE# 138-1 at ¶ 27,
5/13/20).

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Civil Trial Lawyer as recognized by the Florida Bar” and “has a very busy law practice
. . . [that] handles mostly commercial cases that compensate him by his hourly rate and
not on a contingency basis.” Reply at 2-3. The plaintiffs argue that if the Court were to
reduce Mr. Accetta’s $650 hourly rate (and not apply the requested 2.0 multiplier), it
would discourage Mr. Accetta from representing other insureds in the future. Id. at 3
(stating that “[i]f this Court were to consider the Defendant’s request to reduce [Anthony
Accetta’s] hourly rate and deny his request for a multiplier, this would deter Mr. Accetta
from ever assisting other insureds who have been wronged by insurance companies but
cannot afford his representation.”). At the same time, the plaintiffs maintain that “Mr.
Accetta has extensive experience litigating in insurance coverage and commercial
litigation matters” and, along with his co-counsel in the instant case, “are clearly known
as a threat to the insurance industry.” Response at 3-4.
The plaintiffs submitted eight state court fee orders in support of the hourly rates
requested for Mr. Vazquez, Mr. Accetta and Mr. Gomez. The Court notes that none of
these cases awarded a multiplier to these attorneys. 3 See State Court Fee Orders (DE#
138-1 at 31-41;138-2 at 21-55; DE# 138-4 at 17; 5/13/20). In fact, only one case even

3

In total, the plaintiffs filed eight state court orders. However, two of those orders
concerned fees for sanctions under 57.105 and for violating a procedural rule. See
State Court Order (DE# 138-2 at 24-30; DE# 138-4 at 17). Thus, a multiplier would not
have been at issue in those proceeding.

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discussed the imposition of a multiplier and the state court judge declined to award it. Id.
at 138-2 at 22.
Given that insurance coverage litigation already represents a significant part of
Mr. Accetta’s law practice, to the extent that he, along with his co-counsel, assert that
they are considered “a threat to the insurance industry,” the Court is confident that a
reasonable hourly rate consistent with the prevailing market rates in this community
would not deter Mr. Accetta and his co-counsel from continuing to litigate insurance
coverage cases.
The plaintiffs also note that the defendant’s expert advocated for an hourly rate of
$625.00 for certain law partners in a different case, Graves v. Plaza Med. Centers,
Corp., Case No. 10-cv-23382-FAM. See Reply at 3 (stating that “[i]t’s noteworthy that
[the defendant’s expert] testified in Graves, that a rate of $625/hr. is reasonable for
select partners in a claim brought under the Fair Claims Act, which settled without a
jury trial.”) (emphasis in original).
Graves was a qui tam civil action which included allegations of Medicare Part C
fraud. Graves v. Plaza Med. Centers, Corp., No. 1:10-23382-CV, 2018 WL 3699325, at
*4 (S.D. Fla. May 23, 2018), report and recommendation adopted, No. 10-23382-CIV,
2018 WL 3697475 (S.D. Fla. July 13, 2018). The plaintiffs emphasize that Graves
“settled without a jury trial.” Reply at 3. Although the parties in Graves did not go to trial,
the case was litigated extensively. At the time of the fee award, the parties in Graves
had litigated the case for approximately nine years and nine months and there were 960
docket entries.

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The Court in Graves awarded a $625.00 hourly rate to only two attorneys. 4 One
of those attorneys was “the former Deputy Chief of the Criminal Fraud Division and
head of the Health Care Fraud Unit of the United States Department of Justice [and
was] widely recognized to be among the most sophisticated health care attorneys in the
United States.” Graves, 2018 WL 3697475 at *7. The other attorney had been practicing
for 48 years and “ha[d] extensive experience in medical malpractice cases, including
more than 200 jury trials, 100 bench trials, and 25 verdicts in excess of seven figures.”
Id. at *4. Given the impressive backgrounds and qualifications of these attorneys, it is
not surprising that the defendant’s expert would opine that an hourly rate of $625.00
was reasonable.
Having considered the parties’ submissions, counsels’ reputation and experience
in the applicable legal areas and the Court’s familiarity with fees in general, the Court
finds that the following hourly rates are reasonable and appropriate for this case:
Timekeeper

Position

Hourly Rate
Sought 5

Hourly Rate
Awarded

Anthony Accetta

Attorney

$650.00

$525.00

Lazaro Vazquez

Attorney

$500.00

$450.00

Eduardo Gomez

Attorney

$525.00

$450.00

Charles A. Luke, Jr.

Law Clerk

$125.00; $200.00

$125.00

Leslie M. Canales

Paralegal

$150.00

$150.00

4

The $625.00 hourly rate awarded was a substantial reduction from the hourly rates of
$1,090.00-$1,110.00 and $900.00 sought by the movant. Graves, 2018 WL 3699325, at
*4.
5

See Motion at 3; id. at 7 n.5.

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Yanely RodriguezAccetta

Paralegal

$150.00

$150.00

Brandon F.
Rodriguez

Paralegal

$75.00

$75.00

Barbie Delgado

Paralegal

$95.00

$95.00

Rosa Fernandez

Paralegal

$125.00

$125.00

The Court recognizes that Mr. Accetta, Mr. Vazquez and Mr. Gomez are skilled
attorneys, but finds the requested hourly rates to be excessive. Based on the Court’s
own knowledge and expertise in the award of attorney’s fees, the Court will award
hourly rates of $525.00 for Mr. Accetta and $450.00 for Mr. Vazquez and Mr. Gomez.
The Court finds that $150.00 is an appropriate hourly rate for paralegals in the instant
case. However, where the paralegal billed at a lower hourly rate, the Court will award
the rate requested. Law clerk Charles A. Luke, Jr. billed at two different rates, $125.00
and $200.00. The most likely explanation is that Mr. Luke became an attorney.
However, because the plaintiffs provided no explanation for the rate change, the Court
will award Mr. Luke the lower of the two hourly rates.
b.

Hours Expended

The Court must next evaluate the plaintiffs’ requested fee for reasonableness in
terms of the total hours expended by the plaintiffs’ counsel. The Court must exercise
independent judgment when reviewing a claim for hours reasonably expended. Norman,
836 F.2d at 1301-02. Hours deemed to be “excessive, redundant, or otherwise
unnecessary” should be excluded. Id. at 1301.
It is important to keep accurate and current records of work done and time spent
on a case, especially when a third party — someone other than the client — may pay

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the bills. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “Attorneys who anticipate
making a fee application must maintain contemporaneous, complete and standardized
time records which accurately reflect the work done by each attorney.” Nat’l Ass’n of
Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). It is
necessary for attorneys to identify the subject matter of their time expenditures.
Hensley, 461 U.S. at 437. 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. See 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 the full amount requested”).
The plaintiffs’ Motion requests reimbursement for 1,711.65 hours for work
performed by attorneys, paralegals and a law clerk. The plaintiffs support their fee
request by submitting itemized billing records, the affidavits of attorneys Anthony
Accetta, Lazaro Vazquez, Eduardo Gomez and the declaration of the plaintiffs’ fee
expert. The total number of hours requested for each timekeeper is outlined in the chart
below.
Timekeeper

Position

Hours Sought

Anthony Accetta

Attorney

374.85

Lazaro Vazquez

Attorney

606.10

Eduardo Gomez

Attorney

258.05

Charles A. Luke, Jr.

Law Clerk

12.63

Yanely Rodriguez-Accetta

Paralegal

116.35

Leslie M. Canales

Paralegal

187.07

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Brandon F. Rodriguez

Paralegal

124.40

Barbie Delgado

Paralegal

16.50

Rosa Fernandez

Paralegal

15.70

Motion at 3; id. at 7 n.5.
The plaintiffs argue that because there was a contingency fee agreement,
“counsel was motivated to be as economical and efficient with their time as possible in
fully prosecuting these cases.” Motion at 5. They further argue that “many of the hours
expended by the [plaintiffs’ counsel were] largely the product of defense counsel’s
aggressive defense of these cases on the basis of insurance fraud and failure to
cooperate with deadlines involving preparing the pretrial stipulation, and conferring on
joint jury instructions and verdict forms.” Id. The plaintiffs also cite the defendant’s
numerous document requests. Id. (stating that “Geo[V]era chose to request a large
number of documents through various document requests which the [plaintiffs’ counsel]
had to carefully review and analyze.”) Id. Lastly, the plaintiffs cite their favorable
outcome. Id. at 6 (noting that prior to the litigation, the defendant had offered the
plaintiffs no money, during the litigation the defendant offered the plaintiffs $5,000.00
each per claim and at the conclusion of the litigation, the jury awarded the plaintiffs
$111,087.63).
The defendant seeks to substantially reduce the amount of attorney’s fees
requested by the plaintiffs. The defendant notes that its expert found “several instances
of duplicative work, overstaffing, internal conferences between lawyers, and other
problematic billing practices.” Response at 11 (internal quotation marks omitted). The
defendant also challenges the plaintiffs’ characterization of the defendant’s litigation

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strategy as an “aggressive defense.” Id. at 12. The defendant notes that the plaintiffs
only questioned one witness regarding the defendant’s affirmative defense of
fraud/misrepresentation and that only approximately five pages of the trial transcript
addressed the topic. Id. The defendant also notes that its counsel “routinely prepared
the first drafts of the Joint Stipulations, Jury Instructions, Witness Lists, Exhibits Lists,
and other similar joint submissions.” Id. Lastly, with respect to the plaintiffs’ complaints
about voluminous document production, the defendant asserts that in both cases, the
plaintiffs produced approximately 385 pages of documents. Id.
i.

Plaintiffs’ Attempt to Cure Block Billing Entries

The defendant argues that “numerous billing entries could not be properly
evaluated because they were either vague or ‘block billing.’” Response at 14. “‘Block
billing’ occurs when an attorney lists all the day’s tasks on a case in a single entry,
without separately identifying the time spent on each task.” Ceres Envtl. Servs., Inc. v.
Colonel McCrary Trucking, LLC, 476 F. App’x 198, 203 (11th Cir. 2012).
The plaintiffs attempt to cure their attorneys’ use of block billing by submitting
amended time entries with their Reply. See Response to Defense Expert’s [Lazaro
Vazquez] Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 1-8;
6/18/20); Response to Defense Expert’s [Anthony Accetta] Affidavit Time Analysis re.
Block Billing Objections DE# 155-2 at 9-16; 6/18/20); Response to Defense Expert’s
[Eduardo Gomez] Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 1720; 6/18/20).
The Court will not accept the plaintiffs’ belated attempts at curing their block
billing entries. “Attorneys who anticipate making a fee application must maintain

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contemporaneous . . . time records which accurately reflect the work done by each
attorney.” Nat’l Ass’n. of Concerned Veterans, 675 F.2d at 1327 (emphasis added).
Here, the plaintiffs’ attorneys’ belated revisions, some which date back to 2017, 2018
and 2019, represent mere guesswork by counsel as to the amount of time actually
spent on each task. Block billing “mak[es] it difficult to ascertain how much time was
spent on each task.” Office of the Attorney Gen. v. Moving & Storage Accounting Inc.,
No. 18-CV-63144, 2020 WL 5217183, at *4 (S.D. Fla. Aug. 14, 2020), report and
recommendation adopted, No. 18-CIV-63144-RAR, 2020 WL 5215151 (S.D. Fla. Aug.
31, 2020). Block billing also “results in imprecision in an attorney’s records.” Prince v.
Marson, No. 8:19-CV-549-T-35AAS, 2020 WL 1891191, at *2 (M.D. Fla. Apr. 16, 2020)
(citation and internal quotation marks omitted). Counsels’ belated guestimates do not
render the plaintiffs’ billing records any more precise. Therefore, the Court will not
accept these revised time entries. An across-the-board reduction to account for
impermissible block billing is warranted and will be applied below. See Ceres Envtl.
Servs., Inc., 476 F. App’x at 203 (noting that “Courts have . . . approved across-theboard reductions in block-billed hours to offset the effects of block billing.”).
ii.

Expert Declarations

The parties’ experts disagree on the complexity of the instant case. The plaintiff’s
expert describes the instant case as one that was vigorously and aggressively defended
by the defendant. Decl. of Pls.’ Expert at ¶ 12. He notes that this matter involved two
separate claims which “were litigated over the course of [two] years and ultimately

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consolidated for trial.” Id. at ¶ 17. The plaintiffs’ expert notes that there were 79
motions 6 filed, including cross-motions for summary judgment and ten motions in limine,
nine depositions taken and that the jury trial lasted three days. Id.
By contrast, the defendants’ expert characterizes the case as “a simple breach of
contract claim by an insured against its homeowner[’s insurance] carrier for water
damage arising from two incidents in December of 2015 and as a result of Hurricane
Irma on September 10, 2017.” Decl. of Def’s Expert at ¶ 12. The defendant’s expert
notes that the total amount recovered for both claims was $111,087.61. Id. The
defendant’s expert further notes that the trial only lasted three days, that seven
witnesses were called and that there were approximately 30 trial exhibits introduced by
each party. Id. The defendant’s expert further states that while cross-motions for
summary judgment were filed, they were “largely denied” and that the motions in limine
were “[n]oncomplex.” Id.
Although the parties’ experts disagree on the complexity of the case and the
manner in which it was litigated, both experts propose reductions to the plaintiffs’ billing
records. The plaintiffs’ expert proposes an across-the-board ten percent reduction to the
billing records of Mr. Accetta, Mr. Vazquez and Mr. Gomez to account for “[t]he reality
[that] . . . multiple lawyers working on the same case necessarily results in duplication of

6

It is unclear how the plaintiffs’ expert arrives at 79 motions. According to CM/ECF, to
date, 31 motions (12 motions by the plaintiffs and 19 motions by the defendant) have
been filed in Case No. 18-cv-23585-JJO and 40 motions (12 motions by the plaintiffs
and 28 motions by the defendant) have been filed in Case No. 19-cv-21173-JJO, for a
total of 71 motions. The Court notes that many of the same motions were filed in both
cases and were nearly identical. See, e.g., Motions in Limine. Thus, the total number of
unique motions between the two cases is less than the 79 motions suggested by the
plaintiffs’ expert.

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work among the law firms involved.” Decl. of Pls.’ Expert at ¶ 18.
The defendant’s expert proposes “a thirty five percent reduction for A. Accetta
. . ., [a] twenty five percent reduction for L. Vazquez and [a] twenty five percent
[reduction] for E. Gomez.” Decl. of Def’s Expert at ¶ 19. The defendant’s expert
proposes these reductions to account for “multiple problems in the billing records” for
the reasons discussed below. Id.
The defendant’s expert identified in Mr. Accetta’s billing records 63 entries with
an even number of hours which the defendant’s expert believes is one of several “red
flags.” Decl. of Def’s Expert at 15(h). 7 The defendant’s expert lists several instances
where Mr. Accetta’s time entries appear excessive for the work performed. According to
the defendant’s expert, Mr. Accetta billed a total of 123 hours for reviewing the file, 22
hours for preparing for and attending the deposition of Brad LaBonde (a deposition
which lasted only 1.55 hours) and 92.5 hours for trial preparation and trial attendance
(including three consecutive days where Mr. Accetta billed 20 hours each day). Id. The
defendant’s expert further notes that some time entries included block billing. Id.
With respect to the billing records for Mr. Vazquez’ law firm, the defendant’s
expert notes numerous instances of excessive time entries. Decl. of Def’s Expert at
¶ 15(i). According to the defendant’s expert, Mr. Vazquez had 20 entries for client
conferences totaling 61 hours. Id. The defendant’s expert opined that 61 hours for a
case involving “two claims for property damage . . . seem[ed] disproportionately high.”

7

The Court disagrees with the defendant’s expert that having 63 time entries with an
even number of hours, in and of itself, is a red flag. Nonetheless, the Court has carefully
reviewed the billing records for Mr. Accetta’s law firm and concludes that significant
reductions to the time entries submitted are warranted as discussed in more detail
below.

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Id. The defendant’s expert also found 41 time entries for reviewing the file for a total of
83 hours. Id.
Finally, with respect to Mr. Gomez’ billing records, the defendant’s expert
calculates that Mr. Gomez spent 36 hours in lawyer conferences, 84 hours on legal
research and used block billing on some entries. Decl. of Def’s Expert at ¶ 15(j).
iii.

Reductions to the Billing Records

“When a district court finds the number of hours claimed is unreasonably high,
the court has two choices: 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). “[T]he district court is to apply either method, not both.” Id.
at 1351.
“[I]n cases ‘[w]here fee documentation is voluminous,’ it [would] not be feasible to
require a court to 'engage in such a precise review.’” Villano v. City of Boynton Beach,
254 F.3d 1302, 1311 (11th Cir. 2001) (quoting Loranger v. Stierheim, 10 F.3d 776, 783
(11th Cir. 1994)). In the instant case, the billing records submitted by the plaintiffs total
1,711.65 hours. Therefore, an across-the-board cut rather than an hour-by-hour
analysis is appropriate. See Villano, 254 F.3d at 1311 (finding that “569.30 hours for
compensation” were “extensive enough that [the Eleventh Circuit] [did] not expect the
district court or the magistrate judge to conduct an hour-by-hour analysis”).
Upon careful review of the plaintiffs’ billing records, the Court finds that the time
entries were, for the most part, contemporaneous, complete, standardized and
accurately reflect the work done by each attorney. Some time entries, however, are
excessive, are duplicative, lack adequate detail, use block billing or constitute non-

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compensable clerical work. Accordingly, a reduction to the hours requested by the
plaintiffs’ counsel is warranted.
(a.)

Mr. Accetta’s Billing Records

The Court has carefully reviewed the billing records for Mr. Accetta’s law firm and
concludes that significant reductions to the time entries submitted are warranted. Mr.
Accetta’s law firm blocked billed some time entries which make it impossible for the
Court to ascertain the reasonableness of the time expended. See Response to Defense
Expert’s [Anthony Accetta] Affidavit Time Analysis re. Block Billing Objections DE# 1552 at 9-16; 6/18/20) (attempting to cure 41 time entries which were block billed).
Additionally, Mr. Accetta spent an excessive amount of time on certain tasks. As
noted by the defendant’s expert, Mr. Accetta spent 22 hours for preparing for and
attending the deposition of Brad LaBonde (a deposition which lasted only 1.55 hours)
and 92.5 hours for trial preparation and trial attendance (including three consecutive
days where Mr. Accetta billed 20 hours each day). Decl. of Def’s Expert at 15(h).
Other time entries are non-descript and make it difficult, if not impossible, to
determine if the task was necessary or duplicative of other time entries. For example, on
August 15, 2019, August 16, 2019, August 21, 2019, August 28, 2019 and August 29,
2019, Mr. Accetta billed one hour each day for reviewing the file. See AA Billing
Records (DE# 138-2 at 72-73). Without any additional information concerning which
portions of the file Mr. Accetta reviewed and for what purpose he was reviewing the file,
the Court cannot ascertain whether these time entries were reasonable or necessary.
The Court also finds that the participation of three law firms in this case, resulted
in overlap between the work performed by the three firms. According to the defendant’s

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expert, Mr. Accetta’s law firm billed 123 hours for reviewing the file and Mr. Vazquez’
law firm billed 83 hours for reviewing the file. See Decl. of Def’s Expert at ¶ 15(h) and
(i). 8 The billing records for Mr. Gomez’ law firm also include time entries for reviewing
the file (see EG Billing Records # 40, 61, 96, 102 (DE# 138-4 at 35, 37, 40-41)).
However, because of block billing, it is impossible to precisely ascertain how much time
each attorney spent reviewing the file. In any event, the Court finds that an excessive
and duplicative amount of time was spent by the plaintiff’s three attorneys in reviewing
the file.
The Court will also apply a reduction to the time entries submitted by Mr.
Accetta’s firm to account for non-compensable clerical work. For instance, on February
11, 2020, paralegal Yanely Rodriguez-Accetta billed 2.00 hours for preparing labels and
folders and assembling boxes for use at trial. See AA Billing Records (DE# 138-2 at 89).
Again, on February 12, 2020, paralegals Yanely Rodriguez-Accetta and Brandon F.
Rodriguez billed 4.00 hours and 2.00 hours, respectively, for preparing labels and
folders or assisting with preparing labels and folders. Id. On February 20, 2020, Mr.
Rodriguez spent an additional hour assembling boxes. Id. at 95. The failure to remove
clearly non-compensable billing entries such as time spent on assembling boxes and
creating labels before submitting billing records to the Court does not demonstrate good
billing judgment. “Counsel for the prevailing party should make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise

8

It appears that the defendant’s expert may have calculated these totals by including
some block billed entries which contained other tasks. Even accounting for this
overinclusion of time, the Court still concludes that an excessive amount of time was
expended by the three law firms in reviewing the file.

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unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.” Hensley, 461 U.S. at 434.
Paralegal Brandon F. Rodriguez billed a total of 8 hours (2.00 hours each time)
for transporting documents to and from the courthouse. See AA Billing Records (DE#
138-2 at 90, 99, 100, 101). This activity is not compensable. Other non-compensable
time entries include calling the Court to inquire about the delivery of binders and
discussing a retainer fee with the trial technical support personnel. See AA Billing
Records (DE# 138-2 at 89-90, 99-101).
The Court also found an excessive amount of time entries for organizing or
assembling binders. See AA Billing Records (DE# 138-2 at 65, 80, 85, 88-90, 92-93, 9697, 99, 101). In total, Mr. Accetta’s three paralegals spent approximately 39.80 hours
(almost a full workweek) assembling binders for the three-day jury trial: 18.50 hours
spent by Brandon F. Rodriguez, 12.30 hours spent by Leslie M. Canales and 9.00 hours
spent by Yanelis Rodriguez-Accetta. Id. at 85, 88-90, 92-93, 96-97, 99, 101. Paralegal
Leslie M. Canales spent an additional 7.20 hours assembling binders for other non-trial
related purposes. Id. at 65, 80, 85. These totals do not include an additional 8.00 hours
spent by paralegal Yanelis Rodriguez-Accetta organizing photocopies for trial. Id. at 88,
95. The Court finds that the amount of time expended for these activities is
unreasonable.
The Court finds many examples of excess billing, duplicative billing, block billing
and non-compensable clerical work which warrant a 35 percent reduction to the billing
records submitted by Mr. Accetta’s firm.

20

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(b.)

Mr. Vazquez’ Billing Records

The Court has carefully reviewed the billing records for Mr. Vazquez’ law firm and
concludes that some reductions to the time entries submitted are warranted. As already
noted by the defendant’s expert, Mr. Vazquez spent an excessive amount of time (61
hours) meeting with his clients and reviewing the file (83 hours). See Decl. of Def’s
Expert at ¶ 15(i). Even accounting for the likelihood that the defendant’s expert’s
calculations include some block billed entries which contain other tasks, the Court finds
that there was an excessive amount of time spent by Mr. Vazquez for these tasks which
require a reduction.
Further reductions are merited for block billing. Mr. Vazquez acknowledges at
least 28 instances of block billed entries which he belatedly attempted to cure in an
exhibit attached to the Reply. See Response to Defense Expert’s [Lazaro Vazquez]
Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 1-8; 6/18/20).
The Court also found instances of unnecessary and/or duplicative work in Mr.
Vazquez’ billing records. The Court notes that on August 16, 2020, Mr. Vazquez billed
2.00 hours for conferencing with co-counsel regarding the deposition of defendant’s
expert Ryon Plancer, 3.25 hours for attending the deposition of Mr. Plancer and 1.00
hour of travel time related to the deposition of Mr. Plancer. See LV Billing Records (DE#
138-1 at 77). These time entries are duplicative of the work performed by Mr. Accetta
who took the deposition of Mr. Plancer and billed 9.00 hours preparing for and attending
Mr. Plancer’s deposition. See AA Billing Records (DE# 138-2 at 72). This amount is in
addition to the 5.00 hours billed by Mr. Accetta’s paralegal, Leslie M. Canales, for
accessing and reviewing the file to assist Mr. Accetta with organizing the file in

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preparation for Mr. Plancer’s deposition, which itself is excessive and likely noncompensable clerical work. Id.
The Eleventh Circuit recognizes that “[t]here is nothing inherently unreasonable
about a client having multiple attorneys, and they may all be compensated if they are
not unreasonably doing the same work and are being compensated for the distinct
contribution of each lawyer.” Norman, 836 F.2d at 1302 (citing Johnson v. Univ. Coll. of
Univ. of Alabama in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)). 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 practice of multiple-lawyer litigation. ACLU v. Barnes, 168 F.3d 423 (11th
Cir. 1999). The plaintiffs have not shown that the tasks performed by Mr. Vazquez and
Mr. Accetta relating to the deposition of Mr. Plancer reflect distinctive contributions to
the case. As such, a reduction is necessary to account for duplicative or unnecessary
time entries.
Mr. Vazquez was the only timekeeper listed on his billing records. The Court
found instances of secretarial or paralegal work which do not merit Mr. Vazquez’ high
hourly rate. See, e.g., LV Billing Records (DE# 138-1 at 47) (drafting summons); Id. at
67-68, 75-76) (drafting notices, re-notices and cross-notices of deposition); id. at 56, 73
(drafting notice of selection of mediator); id. at 63 (cancelling deposition of plaintiffs and
confirming deposition of witness).
The Court also found instances where Mr. Vazquez’ billing entries are excessive
for the task described or are insufficiently detained to support the time billed. For
example, on August 31, 2018, Mr. Vazquez’ billed a total of 4.00 hours for legal

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research concerning the procedure for removal of a case to federal court, the timeliness
of the notice of removal and the waiver of removal. See LV Billing Records (DE# 138-1
at 47-48). The Court finds 4.00 hours to be excessive for the descriptions provided. On
the same day, Mr. Vazquez billed 2.00 hours for “review[ing] all information exchanged
before the removal re[garding] damages sought in state court action.” Id. at 48. Without
a more detailed description, it is impossible for the Court to evaluate the
reasonableness of the time spent on this task.
The Court found many examples of excessive time entries, duplicative billing,
block billing and secretarial or paralegal work performed by an attorney which warrant a
25 percent reduction to the billing records submitted by Mr. Vazquez’ firm
(c.)

Mr. Gomez’ Billing Records

The Court has carefully reviewed the billing records for Mr. Gomez’ law firm and
concludes that some reductions to the time entries submitted for Mr. Gomez’ law firm
are warranted.
The Court will reduce Mr. Gomez’ time entries to account for block billing. Mr.
Gomez acknowledges nine instances of block billing which he attempts to cure in an
exhibit attached to the Reply. See Response to Defense Expert’s [Eduardo Gomez]
Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 17-20; 6/18/20).
As previously noted, the defendant’s expert calculates that Mr. Gomez spent 36
hours in lawyer conferences, 84 hours on legal research and used some block billed
entries. Decl. of Def’s Expert at ¶ 15(j). Even accounting for an overestimation due to
some block billed entries which include other tasks, the Court finds that Mr. Gomez’
billing records should be reduced to account for excessive time spent on these tasks.

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The Court found other instances of excessive time. For instance, Mr. Gomez
billed 4.00 hours for conferring with co-counsel in preparation for a “case management
conference” and 3.00 hours for “attend[ing the] case management conference with
Judge O’Sullivan.” See EG Billing Records (DE# 138-4 at 24). The undersigned holds
status conferences in lieu of the case management conference. The docket reflects that
the status conference before the undersigned lasted approximately 25 minutes. See
Minute Entry (DE# 92 in Case No. Case No. 18-cv-23585-JJO, 12/13/19). Billing 7.00
hours (almost a full day) for preparing for and attending a 25-minute status conference
is grossly excessive.
The Court also notes that Mr. Gomez’ paralegal, Barbie Delgado, billed 0.20
hours (12 minutes) for reviewing the paperless minute entry for that status conference
and updating the file. See EG Billing Records (DE# 138-4 at 24). It is unclear what
update Ms. Delgado could have made to the file based on the information in the
paperless minute entry or how Ms. Delgado could have spent 12 minutes reviewing a
total of 40 words.
The Court also found multiple instances of duplicative and/or unnecessary work.
For example, Mr. Gomez billed 2.00 hours for attending the deposition of Christopher
Thompson, the plaintiff’s expert. See EG Billing Records (DE# 138-4 at 19). Mr.
Vazquez also billed for preparing for the deposition of Christopher Thompson (3.15
hours), travel time associated with Mr. Thompson’s deposition (1.00 hour) and
attendance at Mr. Thompson’s deposition (2.00 hours). See LV Billing Records (DE#
138-1 at 59-60). No explanation has been provided for having two attorneys attend the
deposition of this witness.

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Mr. Gomez also billed for 1.30 hours for research in preparation for the
deposition of Bradley LaBonde and 2.80 hours for preparing for and attending Mr.
LaBonde’s deposition. See EG Billing Records (DE# 138-4 at 20). Mr. Gomez’ cocounsel also billed for work related to Mr. LaBonde’s deposition. As noted by the
defendant’s expert, Mr. Accetta spent 22 hours for preparing for and attending the
deposition of Mr. LaBonde, a deposition which lasted only 1.55 hours. Decl. of Def’s
Expert at 15(h). Mr. Vazquez billed 3.00 hours for attending the deposition of Mr.
LaBonde (2.00 hours) and travel time (1.00 hour). See LV Billing Records (DE# 138-1 at
64). Aside from Mr. Accetta’s excessive billing, the Court finds no explanation in the
record for having three attorneys attend the deposition of this witness.
The Court finds many examples of block billing, excess time entries and
duplicative billing which warrant a 25 percent reduction to the billing records submitted
by Mr. Gomez’ law firm.
In sum, the Court will apply a 35 percent reduction to the time entries submitted
for Mr. Accetta’s law firm and a 25 percent reduction to the time entries submitted by the
law firms of Mr. Vazquez and Mr. Gomez to account for the billing issues identified in
this Order, including block billing, excessive and duplicative time entries, non-descript
time entries and non-compensable clerical work. The Court finds that the reductions
listed in the chart below are reasonable and appropriate to account for the billing issues
discussed in this Order.

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Mr. Accetta’s Law Firm
Timekeeper

Position

Hours
Sought

Percentage Hours
Hourly
Lodestar
Reduction After
Rate
Reduction Awarded

Anthony
Attorney
374.85 35%
Accetta
Yanely
Paralegal 116.35 35%
RodriguezAccetta
Leslie M.
Paralegal 187.07 35%
Canales
Charles A.
Law
12.63
35%
Luke, Jr.
Clerk
Brandon F.
Paralegal 124.40 35%
Rodriguez
Total Amount for Mr. Accetta’s Law Firm:

Mr. Vazquez’ Law Firm
Timekeeper Position

Hours
Sought

Hours
Sought

$525.00

$127,917.56

75.6275

$150.00

$11,344.13

121.5955

$150.00

$18,239.33

8.2095

$125.00

$1,026.19

80.86

$75.00

$6,064.50
$164,591.71

Percentage Hours
Hourly
Lodestar
Reduction After
Rate
Reduction Awarded

Lazaro
Attorney
606.10 25%
Vazquez
Total Amount for Mr. Vazquez’ Law Firm:

Mr. Gomez’ Law Firm
Timekeeper Position

243.6525

454.575

$450.00

$204,558.75
$204,558.75

Percentage Hours
Hourly
Lodestar
Reduction After
Rate
Reduction Awarded

Eduardo
Attorney
258.05 25%
Gomez
Barbie
Paralegal 16.50
25%
Delgado
Rosa
Paralegal 15.70
25%
Fernandez
Total Amount for Mr. Gomez’ Law Firm:

193.5375

$450.00

$87,091.88

12.375

$95.00

$1,175.63

11.775

$125.00

$1,471.88

Total Amount for All Law Firms:

26

$89,739.39
$458,889.85

Case 1:18-cv-23585-JJO Document 178 Entered on FLSD Docket 11/19/2020 Page 27 of 39

c.

Multiplier

“In contingency fee cases that apply Florida law, once the lodestar is established,
the [C]ourt must consider whether a multiplier is appropriate.” Defronzo v. Liberty Mut.
Ins. Co., No. 6:19-CV-244-ORL-78-LRH, 2020 WL 5881702, at *13 (M.D. Fla. July 28,
2020), report and recommendation adopted, 2020 WL 5881595 (M.D. Fla. Aug. 14,
2020) (citing Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990);
Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985)). “The decision
to award a multiplier is discretionary.” Crossman v. USAA Cas. Ins. Co., No. 6:18-CV1301-ORL-31-GJK, 2020 WL 1172048, at *4 (M.D. Fla. Feb. 7, 2020), report and
recommendation adopted, 2020 WL 1170757 (M.D. Fla. Mar. 11, 2020).
In determining whether to apply a multiplier, the Court should consider the
following factors:
(1) whether the relevant market requires a contingency fee multiplier to
obtain competent counsel; (2) whether the attorney was able to mitigate
the risk of nonpayment in any way; and (3) whether any of the factors set
forth in Rowe 9 are applicable, especially, the amount involved, the results
obtained, and the type of fee arrangement between the attorney and his
client.

9 The Rowe factors are the following:
(1) the time and labor required, the novelty and difficulty of the question
involved, and the skill requisite to perform the legal service properly; (2)
the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal services; (4) the
amount involved and the results obtained; (5) the time limitations imposed
by the client or by the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the experience, reputation, and
ability of the lawyer or lawyers performing the services; and (8) whether
the fee is fixed or contingent.
Rowe, 472 So. 2d at 1150.

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Quanstrom, 555 So. 2d at 834 (footnote added).
The plaintiffs seek the application of a risk multiplier:
The instant matter is suitable for the imposition of a 2.0 contingency
multiplier, as the clients could only hire an attorney on a contingency
basis. The clients’ financial situation meant they could not afford
representation absent a contingency fee with the possibility of the
application of a contingency fee multiplier. Additionally, the jury’s verdict
amount was over five (5) times the amount of Geo[V]era’s proposal for
settlement. And in light of [its] fraud defenses, Geo[V]era believed the
Plaintiffs were not entitled to any monies whatsoever for either claim.
Based on the foregoing, and the fact that success was minimal from the
outset, and that the [plaintiffs’ counsel] would not have taken on the
representation but-for the expectation of a multiplier, the Plaintiffs[ ]
request that a fee multiplier of 2.0 be applied to the lodestar.
Motion at 10.
The plaintiffs’ expert notes that the case was “heavily litigated,” that [v]arious
dispositive motions were filed and that the defendant served offers of judgment which
are “indicative of Defendant’s position that it had a high likelihood of prevailing against
the Plaintiffs in these cases.” Decl. of Pls.’ Expert at ¶ 44. The plaintiffs’ expert further
notes, that because of those offers of judgment, there was significant financial risk to
the plaintiffs if they failed to prevail on their claims. Id. The plaintiffs’ expert opines that
“very few competent and qualified attorneys in South Florida would have taken these
matters on a contingency basis but for the availability of a fee multiplier.” Id. at ¶ 46. The
plaintiffs’ expert discussed the instant case with two first party insurance attorneys who
stated that they would not have taken the instant case without the expectation of a
multiplier, particularly in light of the fraud/misrepresentation affirmative defense. Id. at
¶ 48.
The defendant opposes the application of a multiplier. Response at 15-20. The
defendant argues that the first factor in Quanstrom is not met because the “[p]laintiffs

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have not provided any evidence to suggest that they had interviewed or otherwise
discussed these matters with other legal counsel and were denied legal representation.”
Id. at 17; id. at 19 (noting that “Plaintiffs have not provided any testimony that they had
difficulty in obtaining legal counsel, or that they had been rejected by any other
attorneys for these matters”). The defendant further argues that the second factor is not
satisfied merely because counsel represented the plaintiffs on a contingency basis and
“federal courts in Florida have found that the existence of the attorney fee statute for
first party cases is a sufficient mitigation of nonpayment.” Id. at 17-18. Lastly, the
defendant argues that the “Plaintiffs cannot meet the third factor because Plaintiffs’
emphasis on the purported complexity of their case is not supported by the record
before the Court” and the plaintiffs have offered no evidence to support their “claim that
they could not afford representation absent a contingency fee with the possibility of the
application of a contingency fee multiplier.” Id. at 18.
The plaintiffs assert in their Reply that the defendant incorrectly applies a
subjective standard to the first factor. Reply at 8 (stating that “the
enhancement/multiplier issue ha[s] to be viewed from the objective basis of its need in
the marketplace, rather than from the subjective basis of whether the individual fees
claimant had encountered actual difficulty in obtaining counsel”). The plaintiffs further
argue that in determining whether to apply a multiplier, the Court should consider the
purpose of the multiplier which “is to equal the playing field.” Id.
The instant case does not warrant the application of a multiplier under the
Quanstrom factors. The first factor – whether the relevant market requires a
contingency fee multiplier to obtain competent counsel – has not been met. There is no

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record evidence that the plaintiffs were turned away by other law firms or had any
difficulty obtaining legal representation in this case. See David L. Goldstein DMD PA v.
Phoenix Ins. Co., No. 6:17-CV-1963-ORL-31-TBS, 2018 WL 5084750, at *6 (M.D. Fla.
Aug. 21, 2018) (declining to apply multiplier, in part, because there was “no showing
that other firms refused to take the case under a standard contingency arrangement so
as to satisfy the Court that the possibility of recovering a contingency fee multiplier was
necessary for [p]laintiff to obtain competent counsel”).
Although the plaintiffs three attorneys assert that they would not have accepted
this case without the possibility of a multiplier, the Court notes that none of the state
court fee cases submitted in support of the instant Motion awarded a multiplier to these
attorneys. See State Court Fee Orders (DE# 138-1 at 31-41;138-2 at 21-55; 138-4 at
17, 5/13/20). In fact, Mr. Vazquez represents the plaintiffs in four separate claims
against GeoVera, including the two claims which comprise the instant case. See Aff. of
Lazaro Vazquez at ¶ 6.
Even applying an objective standard, the Court notes that property damage
cases such as the instant case are not uncommon in South Florida, particularly claims
involving hurricane damage, and attorneys who practice in this area are not in short
supply. See St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., No. 18-21365-CIV, 2019
WL 7905013, at *7 (S.D. Fla. Oct. 10, 2019) (“as the number of cases filed in this Court
illustrates, a plethora of experienced practitioners routinely pursue insurance cases
following hurricanes or other significant causes of loss”). Mr. Vazquez acknowledges in
his affidavit that Geo[V]era “defends many cases in South Florida through jury trial and
appeal.” See Aff. of Lazaro Vazquez at ¶ 9.

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The Florida Supreme Court has noted that “[a] primary rationale for the
contingency risk multiplier is to provide access to competent counsel for those who
could not otherwise afford it.” Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 411 (Fla.
1999). Here, the record does not reflect that a multiplier is necessary to entice
competent attorneys to litigate cases such as this one. “This alone is fatal to . . . [the]
request for a fee multiplier because ‘[i]f there is no evidence that the relevant market
required a contingency fee multiplier to obtain competent counsel, then a multiplier
should not be awarded.’” St. Louis Condo. Ass’n, Inc., 2019 WL 7905013, at *7 (quoting
USAA Cas. Ins. Co. v. Prime Care Chiropractic Enters, P.A., 93 So. 3d 345, 347 (Fla.
2d DCA 2012)).
The second factor asks whether the attorneys were able to mitigate the risk of
nonpayment in any way. Mr. Accetta, Mr. Vazquez and Mr. Gomez represented the
plaintiffs on a contingency fee basis. However, “the existence of a contingent fee
agreement alone does not mandate the application of a multiplier.” St. Louis Condo.
Ass’n, Inc., 2019 WL 7905013, at *8. Here, the plaintiffs offer only conclusory
statements concerning their inability to pay their attorneys. See, e.g., Aff. of Lazaro
Vazquez at ¶ 20 (attesting that “Mr. Rodriguez and Mrs. Rodriguez are not financially
able to hire an attorney to handle these cases on an hourly fee basis.”); Decl. of Pls.’
Expert at ¶ 11 (attesting that “[b]ased on [his] discussion with Mr. Vazquez, Mr. and Mrs.
Rodriguez are not financially able to hire an attorney to handle these cases on an hourly
fee basis”). Additionally, the fee shifting provision itself provides mitigation against the
risk of non-payment. See Hegel v. First Liberty Ins. Corp., No. 8:12-CV-1161-T-17MAP,
2014 WL 5473185, at *5 (M.D. Fla. Oct. 23, 2014) (stating “the Court is unconvinced

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that counsel’s acceptance of this case on a contingency basis alone justifies
enhancement. Fla. Stat. § 627.428 guarantees attorneys[’] fees if [p]laintiffs prevailed,
and [p]laintiffs did prevail”).
Lastly, the third factor – whether any of the Rowe factors are applicable,
especially, the amount involved, the results obtained, and the type of fee arrangement
between the attorney and his client – has not been met. The plaintiffs were successful
at trial and, as a result of that success, the plaintiffs were awarded a money judgment
and are receiving a substantial attorney’s fee award. The Court remains unconvinced
that the instant case involved complex litigation. At bottom, the instant case was an
insurance coverage case which included an affirmative defense for
fraud/misrepresentation. To the extent the plaintiffs are relying on the defendant’s
alleged vigorous defense of the case, the lodestar adequately accounts for it. See Pa. v.
Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 730 (1987) (stating that “[t]he
matter may have been difficult, wearing, and time consuming, but that kind of effort has
been recognized in the lodestar award.”).
Accordingly, no multiplier will be awarded in this case.
B.

Costs
In order to address the plaintiffs’ costs request, a review of some of the

procedural history of this case is helpful.
On March 24, 2020, the plaintiffs filed a motion to tax costs and a bill of costs
totaling $59,788.87. See Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Motion
to Tax Costs and Supporting Memorandum of Law, Sworn Bill of Costs and Supporting
Documentation (DE# 152 in Case No. 18-cv-23585-JJO; DE# 129 in Case 19-cv-21173-

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JJO, 3/24/20) (hereinafter “Motion to Tax Costs”); Bill of Costs (DE# 152-1 in Case No.
18-cv-23585-JJO; DE# 129-1 in Case 19-cv-21173-JJO at 2-3 in Case No. 19-cv21173-JJO, 3/24/20). The Motion to Tax Costs was accompanied by approximately 215
pages of invoices, checks, credit card authorization forms, pay-by-phone parking
screenshots, order summaries, charts and shipment receipts. The Motion to Tax Costs
was separate from the instant Motion for Attorney’s Fees which also includes the same
bill of costs and the same approximately 215 pages of supporting documents.
The defendant filed a response in opposition and the plaintiffs filed a reply in
support of the Motion to Tax Costs. See GeoVera’s Response to Plaintiffs Jose
Rodriguez and Marcee K. Rodriguez’s Motion to Tax Costs (DE# 153 in Case No. 18cv-23585-JJO; DE# 130 in Case 19-cv-21173-JJO, 4/7/20) (hereinafter “Response to
Motion to Tax Costs”); Plaintiffs’ Reply to Geo[V]era’s Response to Plaintiffs Jose
Rodriguez and Marcee K. Rodriguez’s Motion to Tax Costs (DE# 158 in Case No. 19cv-21173; DE# 135 in Case No. 19-cv-21173-JJO, 4/14/20) (hereinafter “Reply in
Support of Motion to Tax Costs”).
After the Motion to Tax Costs was fully briefed, the Court issued a 23-page Order
awarding the plaintiffs $9,175.97 in taxable costs under 28 U.S.C. § 1920. See Order
(DE# 145 in Case No. 19-cv-21173-JJO; DE# 168 in Case No. 18-cv-23585-JJO,
5/26/20).
Given that the plaintiffs’ Motion to Tax Costs was separately filed, was fully
briefed and the Court issued an Order awarding costs under section 1920, the Court is
not convinced that the plaintiffs’ costs remain pending (or that they are part of the
instant Motion for Attorney’s Fees). Nonetheless for the sake of completeness, the

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Court will address the plaintiffs’ assertion in their Reply that they are now seeking costs
under Fla. Stat. § 57.041. See Reply at 9-10.
The Court notes that nowhere in the body of the Motion for Attorney’s Fees
currently pending before the Court — Plaintiffs Jose Rodriguez’s and Marcee K.
Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for
Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.
18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20) — is there any
specific discussion of a request for costs under section 57.041. There are scattered
references to the plaintiffs’ entitlement to costs throughout the Motion for Attorney’s
Fees. See Motion for Attorney’s Fees at 1-2, 4, 6, 9, 11. But the only reference to
section 57.041 is in an introductory sentence on the first page which also includes a
reference to section 1920. Motion for Attorney’s Fees at 1.
In their Reply, the plaintiffs state that they are seeking $50,612.90 in costs under
section 57.041 because the Court has already awarded the plaintiffs $9,175.97 in
taxable costs pursuant to 28 U.S.C. § 1920. See Reply at 9; Order (DE# 168 in Case
No. 18-cv-23585-JJO; DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20). In other words,
the plaintiffs took the $59,788.87 they originally sought for costs and subtracted the
$9,175.97 awarded by the Court pursuant to 28 U.S.C. § 1920 to come up with the new
costs amount of $50,612.90.
In reaching this new costs calculation, the plaintiffs ignore the fact that they
unequivocally withdrew $6,739.56 from their original costs. See Reply in Support of
Motion to Tax Costs at 8-9 (withdrawing costs for mediation, PACER, travel, research,
courier/shipping charges and parking). Having withdrawn these charges, the plaintiffs

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cannot simply tack them back on again for the Court’s reconsideration in a reply to the
fees motion.
Prior to issuing its Order awarding costs to the plaintiffs, the Court painstakingly
reviewed the plaintiffs’ Motion for Costs (including the approximately 215 pages in
supporting documents), the Response to Motion to Tax Costs and the Reply in Support
of Motion to Tax Costs. After careful consideration, the Court determined that a
significant portion of the costs sought by the plaintiffs were not taxable under 28 U.S.C.
§ 1920 in a detailed 23-page Order. See Order (DE# 168 in Case No. 18-cv-23585-JJO;
DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20). The plaintiffs cannot simply undo all
of the Court’s labor by asserting (after the issuance of the Court’s Order awarding costs
and in the reply brief to the fees motion) 10 that they are actually seeking costs pursuant
to section 57.041 of the Florida Statutes. Reply at 9.
Nowhere in the body of the Motion for Attorney’s Fees that the Court is presently
ruling on — Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to
Determine Amount of Attorneys’ Fees and Costs, for Lodestar Multiplier, and for
Entitlement to Prejudgment Interest (DE# 161 in Case No. 18-cv-23585-JJO; DE# 138
in Case No. 19-cv-21173-JJO, 5/13/20) — is there any specific discussion of a request
for costs pursuant to section 57.041. A party cannot raise a new argument for the first

10

The only reference to section 57.041 in the instant Motion for Attorney’s Fees is the
following statement: “Plaintiffs, JOSE RODRIGUEZ and MARCEE K. RODRIGUEZ, by
and through undersigned counsel and pursuant to 28 U.S.C. § 1920, Fed. R. Civ. P.
54(d), Local Rule 7.3, the Court’s Final Judgment, and sections 626.9373, 626.911,
627.428, 57.041, Florida Statutes, and other applicable Florida law, respectfully request
this Court for [sic] an award of attorneys’ fees in the amount of $1,337,264.42, and an
award of costs in the amount of $59,788.87.” Motion at 1 (emphasis added). There is no
other reference or discussion of section 57.041 in the instant Motion.

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time in a reply brief. See Herring v. Secretary, Dep’t of Corrs., 397 F.3d 1338, 1342
(11th Cir. 2005) (“As we repeatedly have admonished, arguments raised for the first
time in a reply brief are not properly before a reviewing court.”) (internal quotations
omitted); Willis v. DHL Global Customer Sols. (USA), Inc., No. 10-62464-CIV, 2011 WL
4737909, at *3 (S.D. Fla. Oct. 07, 2011) (noting that “[j]udges in this district . . . have
repeatedly rejected attempts by parties to raise new arguments in reply
memoranda”).The plaintiffs are not entitled to a “do over” costs determination under
section 57.041, simply because they are dissatisfied with the costs awarded under
section 1920.
The plaintiffs correctly note that “[t]he category of costs that are to be awarded
per 57.041, Florida Statutes, encompasses a broader category of costs that are
compensable . . . . .” Reply at 9. The problem for the plaintiffs, however, is that the basis
for their Motion to Tax Costs was section 1920.
The Motion to Tax Costs contains one lone reference to section 57.041:
Plaintiffs JOSE RODRIGUEZ and MARCEE K. RODRIGUEZ (hereinafter
“Plaintiffs”), by and through their undersigned counsel, and pursuant to
this Court’s Final Judgment entered on February 26, 2020, Rule 54(d),
Federal Rules of Civil Procedure, Local Rule 7.3 of the Southern District of
Florida, and in accordance with Fla. Stat. §§ 626.9373, 626.911, 627.428,
57.041 and other applicable Florida law, hereby moves this Court for an
Order taxing costs against Defendant, GEOVERA SPECIALTY
INSURANCE COMPANY, in the amount set forth below.
Motion to Tax Costs at 1 (emphasis added). Notwithstanding this introductory
statement, the Motion to Tax Costs contains no legal analysis of section 57.041.
By contrast, the Motion to Tax Costs quotes the text of 28 U.S.C. § 1920 almost
entirely. Motion to Tax Costs at 10. The plaintiffs specifically cite to section 1920 as the
basis for their requests for costs incurred in relation to fees of the clerk, summonses

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and subpoenas, transcripts, photocopies, exemplifications, materials/supplies and
PACER fees. Id. at 10-12. The plaintiffs also include cases which apply section 1920.
Id. at 11.
The plaintiffs’ reliance on section 1920 as the sole basis for their costs motion is
even more evident in their Reply in Support of Motion to Tax Costs. In that document,
the plaintiffs make eight references to section 1920 and cite approximately 16 cases
discussing costs under section 1920. Reply in Support of Motion to Tax Costs at 3-8.
The Reply in Support of Motion to Tax Costs also includes the following statement:
“Defendant has not specified exactly what costs it is requesting be ‘denied’ therefore,
the Plaintiffs request that any costs not specifically addressed by this Reply be
awarded under 28 U.S.C. [§]1920 against the Defendant in these actions.” Id. at 9
(emphasis added). There is no discussion of section 57.041 in the Reply in Support of
Motion to Tax Costs.
Given the plaintiffs’ heavy reliance on section 1920 and the lone reference to
section 57.041 in an introductory paragraph, the lack of any legal analysis concerning
section 57.041 and the extensive discussion by the plaintiffs of costs under section
1920, it was reasonable for the Court to conclude that the plaintiffs were only seeking
costs under section 1920. The Court analyzed the plaintiffs’ Motion to Tax Costs under
section 1920 and awarded the plaintiffs $9,175.97 in taxable costs. See Order (DE# 168
in Case No. 18-cv-23585-JJO; DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20).
The Court will award no additional costs to the plaintiffs.
C.

Prejudgment Interest
The plaintiffs also seek prejudgment interest beginning on March 19, 2020, the

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date the defendant stipulated to the plaintiffs’ entitlement to fees and costs. Motion at 2.
The defendant does not address the plaintiffs’ request for prejudgment interest other
than stating it did not agree to the amount of prejudgment interest. See Response at 2
(stating that “[e]ven though Plaintiffs’ Motion is titled ‘Unopposed,’ GeoVera had not
agreed to individual line items for fees, the amount of fees and costs, hourly rate,
whether a multiplier is applicable, the amount of pre-judgment interest, and other
items included with Plaintiffs’ request for fees.”) (emphasis added).
“Pre-judgment interest is recognized as merely another element of pecuniary
damages such that when a verdict liquidates damages on a plaintiff's out-of-pocket
pecuniary losses, plaintiff is entitled, as a matter of law, to pre-judgment interest at the
statutory rate from the date of that loss.” Fid. & Guar. Ins. Underwriters, Inc. v.
Federated Dep't Stores, Inc., 845 So. 2d 896, 903 (Fla. 3d DCA 2003). Because the
defendant did not oppose the plaintiff’s entitlement to pre-judgment interest, but rather
contested the amount, the plaintiffs’ request for pre-judgment interest will be
GRANTED.
CONCLUSION
For the reasons stated herein, the Court will award the plaintiffs attorney’s fees in
the amount of $458,889.85 ($164,591.71 for the work performed by Mr. Accetta’s law
firm plus $204,558.75 for the work performed by Mr. Vazquez’ law firm plus $89,739.39
for the work performed by Mr. Gomez’ law firm). Accordingly, it is
ORDERED AND ADJUDGED that the Plaintiffs Jose Rodriguez’s and Marcee K.
Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for
Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.

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18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20) is GRANTED in
part and DENIED in part as follows:
1.

The parties shall confer and attempt to agree on the amount of pre-

judgment interest. Within one (1) week from the date of this Order, the parties shall file
a joint notice of calculation of pre-judgment interest. If the defendant does not agree to
the plaintiffs’ calculation of pre-judgment interest, the defendant shall state with
specificity and with supporting authority its objection to the manner in which the prejudgment interests was calculated in the joint notice.
2.

Upon the filing of the joint notice of calculation of pre-judgment interest,

the Court will enter a separate fees judgment in the amount of $458,889.85 plus prejudgment interest.
DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of
November, 2020.
_______________________________________
JOHN J. O'SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE

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