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applying Florida's offer-of-judgment statute where the underlying claim for relief was a Florida tort
Summary of this case from Sanford v. Omni Hotels Mgmt.Opinion
Case No. 5:10–cv–329–Oc–10PRL.
02-26-2015
AMERICAN HOME ASSURANCE COMPANY, a New York corporation, Plaintiff, v. WEAVER AGGREGATE TRANSPORT, INC., a Florida corporation, Beacon Industrial Staffing, Inc., a Michigan corporation, Defendants. Weaver Aggregate Transport, Inc., a Florida corporation, Crossclaim Plaintiff, v. Beacon Industrial Staffing, Inc., a Michigan corporation, Crossclaim Defendant.
Aaron S. Weiss, Steven J. Brodie, Thomas Meeks, Carlton Fields Jorden Burt, PA, Miami, FL, Alexander David Del Russo, Carlton Fields Jorden Burt, PA, West Palm Beach, FL, for Plaintiff. John Wesley Frost, II, Frost, Van Den Boom & Smith, PA, Bartow, FL, Timothy Allen Andreu, Glenn Rasmussen, PA, Tampa, FL, for Defendants. Claude M. Harden, III, Appel Harden Law Group, Lakeland, FL, for Defendant/Crossclaim Defendant.
Aaron S. Weiss, Steven J. Brodie, Thomas Meeks, Carlton Fields Jorden Burt, PA, Miami, FL, Alexander David Del Russo, Carlton Fields Jorden Burt, PA, West Palm Beach, FL, for Plaintiff.
John Wesley Frost, II, Frost, Van Den Boom & Smith, PA, Bartow, FL, Timothy Allen Andreu, Glenn Rasmussen, PA, Tampa, FL, for Defendants.
Claude M. Harden, III, Appel Harden Law Group, Lakeland, FL, for Defendant/Crossclaim Defendant.
ORDER
WM. TERRELL HODGES, District Judge.
On November 10, 2014, the United States Magistrate Judge issued a detailed and well-reasoned Report and Recommendation (Doc. 298) recommending that Plaintiff American Home Assurance Company's Motion for Award of Attorney's Fees, Costs, and Pre–Judgment Interest against Defendant Weaver Aggregate Transport Inc. (Doc. 239) be granted in substantial part. Weaver Aggregate Transport Inc. (“Weaver”) has filed 50 pages of Objections with another 57 pages of exhibits (Doc. 306), American Home Assurance Company (“American Home”) has filed a response in opposition to the Objections (Doc. 319), and with leave of Court, (Doc. 322), Weaver has filed a reply (Doc. 323). The Court has therefore conducted a de novo review of American Home's motion for fees, costs, and interest. See 28 U.S.C. § 636, M.D. Fla. Local Rule 6.02.
Factual Background
American Home issued two workers' compensation and employer liability insurance policies to Weaver. The workers covered by the policies were provided to and performed work for Weaver pursuant to a Client Services Agreement between Weaver and Defendant Beacon Industrial Staffing, Inc. (“Beacon”). On July 22, 2010, American Home filed this action against Weaver and Beacon, contending that they both provided false information to American Home concerning the number of covered employees, the types of work the employees performed, and the geographical location of the employees; and, as a result, American Home claimed that Weaver and Beacon underpaid the premiums on the policies by over $400,000.
American Home asserted claims against Weaver and Beacon seeking recovery on theories of breach of contract, unjust enrichment, open account, account stated, and fraudulent inducement. At the conclusion of a five-day trial, the jury found in favor of American Home and against Weaver and Beacon on all but one claim, and that Weaver and Beacon were jointly and severally liable to American Home in the amount of $404,013 (Doc. 232). Judgment was entered to that effect on February 3, 2014 (Doc. 236).
The jury found for Beacon on the unjust enrichment claim (Doc. 232).
American Home subsequently moved for $292,945.50 in attorney's fees, $6,663.01 in costs, and $73,893.03 in pre-judgment interest (Doc. 239). American Home asserted as authority for this request Florida's offer of judgment statute, Fla. Stat. § 768.79. In response, Weaver argued that the Florida statute should not apply because none of American Home's claims were based in Florida law, and that the fees requested were excessive.
As stated in the Report and Recommendation (Doc. 298, p. 1302), American Home served its offer of judgment on Weaver on December 23, 2010. The offer proposed settlement of $250,000 on all claims. American Home did not withdraw the offer, and Weaver failed to accept it within the statutorily permitted time period. Because the amount awarded at the conclusion of trial—$404,013—is greater than American Home's offer plus 25%, American Home contended that Fla. Stat. § 768.79 provided for an award of fees and costs.
The Magistrate Judge determined that Fla. Stat. § 768.79 applied to this case, and after conducting a lodestar analysis, see Loranger v. Stierheim, 10 F.3d 776 (11th Cir.1994), recommended an award of $289,737.50 in attorney's fees. The Magistrate Judge reached this calculation by reducing the hourly rate charged by Attorney Meeks from $416 to $400, to account for the prevailing market rates in the Ocala Division. The Magistrate Judge found all other hourly rates to be reasonably consistent with market rates in the Ocala Division. He also concluded that all of the hours American Home requested were reasonable, supported by billing records and affidavits, and were not properly contested by Weaver as required by applicable Eleventh Circuit precedent. See ACLU v. Barnes, 168 F.3d 423, 428 (11th Cir.1999). See also Scelta v. Delicatessen Support Servs., Inc., 203 F.Supp.2d 1328, 1333 (M.D.Fla.2002) ( “Accordingly, a fee opponent's failure to explain exactly which hours he views as unnecessary or duplicative is generally viewed as fatal.”). Lastly, the Magistrate Judge determined that American Home was entitled to almost all of the requested costs, and all of the requested pre-judgment interest.
Weaver's Objections
Weaver first objects to the Magistrate Judge's finding that Fla. Stat. § 768.79 applies to this case and mandates an award of attorney's fees to American Home. In particular, Weaver argues that American Home's claims were not governed by Florida law, but rather by New York, Michigan, and/or Illinois law, and therefore Florida's offer of judgment statute does not apply. The Magistrate Judge rejected this argument for two reasons. First, the Magistrate Judge found that there was no contractual choice of law provision in any of the insurance contracts mandating the application of any other state's law—rather the choice of law questions arose solely from the common law choice of law jurisprudence applied in diversity jurisdiction cases (i.e., lex loci contractus ). Second, the Magistrate Judge noted that “there is no indication that the district judge applied anything other than substantive Florida law” to American Home's claims. (Doc. 298, p. 1304).
The Magistrate Judge's first point rests on an interpretation of the Florida Supreme Court's decision in Southeast Floating Docks, Inc. v. Auto–Owners Ins. Co., 82 So.3d 73 (Fla.2012). In Southeast Floating Docks, the Florida Supreme Court determined that Florida's offer of judgment statute is substantive law for conflict of law purposes, and held that the statute does not apply in instances where parties have contractually agreed to be bound by the substantive laws of another forum. 82 So.3d at 80–82. Specifically, the Court held that “Florida's offer of judgment statute, set forth in section 768.79, creates a substantive right to costs and attorney's fees upon the satisfaction of certain conditions. Accordingly, under a conflict of law analysis, when parties have agreed to be bound by the substantive law of another jurisdiction, section 768.79 simply does not apply.” Id. at 82. Applying Southeast Floating Docks to thiscase, the Magistrate Judge found that because none of American Home's insurance policies contained a choice of law provision, American Home and Weaver did not contractually agree to be bound by the substantive law of another state, and therefore Southeast Floating Docks did not govern this case, and Fla. Stat. § 768.79 could apply.
The Court agrees with the Magistrate Judge. There are no contractually mandated choice of law provisions in existence in this case, and Southeast Floating Docks clearly is limited to situations where parties contractually agree to be bound by a specific state's law. The Court rejects Weaver's attempts to expand the application of Southeast Floating Docks to include cases where the parties have not contractually agreed to be bound by a choice of law provision. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 371–72 (Fla.2013) (noting that Southeast Floating Docks only addressed situations were a contract with a choice of law provision required the application of another state's law, and finding that Fla. Stat. § 768.79 governs where the trial court applied Florida law to some claims, and another state's law to a deceptive trade practices claim based on the facts and not a contractual choice of law provision). Moreover, with one exception, the decisions cited by Weaver are unpersuasive.
Higgins v. West Bend Mut. Ins. Co., 85 So.3d 1156 (Fla.Dist.Ct.App.2012) (holding, without discussion, that Fla. Stat. § 768.79 did not apply where conflict of law rules demanded that the law of Minnesota apply to a bad faith insurance action).
For example, Carlson v. FedEx Ground Package Sys., Inc., 2014 WL 272596 (M.D.Fla. Jan. 24, 2014) involved a contract with a choice of law provision. The other two decisions cited: De Varona v. Discount Auto Parts, LLC, 935 F.Supp.2d 1335 (S.D.Fla.2013) and Kearney v. Auto–Owners Ins. Co., 713 F.Supp.2d 1369 (M.D.Fla.2010) both merely repeat the proposition that Fla. Stat. § 768.79 is substantive, and applies to claims arising under Florida law.
Thus, as the Magistrate Judge correctly noted, Florida's offer of judgment statute should apply to this case. And, despite Weaver's arguments to the contrary, it is clear from the facts and evidence adduced at trial and this Court's jury instructions that Florida law applied at least to American Home's fraudulent inducement and unjust enrichment claims—claims that American Home prevailed on, and in which the jury awarded damages in the amount of $404,013.00 (Doc. 232)—thereby rendering Fla. Stat. § 768.79 applicable. Weaver's Objections to the application of Fla. Stat. § 768.79 will be overruled.
Weaver's argument in its reply (Doc. 323, p. 7, n. 1), that American Home should only receive attorney's fees for the specific claims litigated under Florida law is unavailing. It is clear in this case that the totality of the fees and costs incurred by American Home cannot be distributed amongst and between the various claims. They were all litigated together, and involved closely intertwined factual issues.
Weaver next objects to the Magistrate Judge's determination of the amount of fees and costs to be awarded American Home. Specifically, Weaver argues that the hourly rates are unreasonably high and do not reflect the prevailing market rates in Ocala, Florida. Weaver also contends that the hours requested are excessive, duplicative, and consist of hours spent prosecuting claims against Beacon. Lastly, Weaver argues that the Magistrate Judge failed to account for the factors set forth in Fla. Stat. § 768.79.
Weaver did not raise any of these arguments in its original response to American Home's motion. Instead, Weaver merely stated that “In this case, the total amount of fees incurred by American Home is excessive compared to the fees incurred by Weaver, who prosecuted two cross-claims and one third party complaint, and defended American Home's aggressive prosecution of this action. Furthermore, American Home seeks to obtain a second judgment in fees that is nearly three-fourths as much of its judgment.” (Doc. 251, p. 6).
It is the law of this Circuit that “a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.2009). “[T]o require a district court to consider evidence not previously presented to the magistrate judge would effectively ify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court.” Worley v. City of Lilburn, 408 Fed.Appx. 248, 253 (11th Cir.2011) (citations omitted). See also Medi–Weightloss Franchising USA, LLC, 2010 WL 1837764 at **2–3 (M.D.Fla. Apr. 29, 2010) (refusing to consider new arguments raised for first time in objections to magistrate judge's report and recommendation). Based on the procedural posture of this case, the Court is inclined to exercise its discretion and treat Weaver's newly raised arguments as waived. Weaver had ample time to address the reasonableness of hours and rates requested by American Home, but chose not to do so. Indeed, Weaver's response was a meager 8 pages, and the Magistrate Judge granted Weaver an extension of time to prepare and file its response.See Docs. 249, 251. Moreover, the reasons asserted by Weaver as to why it failed to raise these arguments in its response to the motion for attorney's fees (Doc. 323, p. 8)—namely that Weaver chose to focus solely on the applicability of Fla. Stat. § 768.79, and that the response was filed by prior counsel—are unpersuasive. If anything, they show a tactical decision made by counsel, and do not sufficiently show why this Court should ify the Magistrate Judge's consideration of the matter. The question of the reasonableness of American Home's requested fees and costs was squarely before the Magistrate Judge, and Weaver chose not to address the issue. Weaver is not entitled to a second, and much larger, bite at the apple.
Even if the Court were to consider Weaver's new arguments, they are due to be overruled. As the Magistrate Judge properly found, the rates requested by Weaver's counsel are reasonable, adequately supported by affidavits, and within the range awarded in the Middle District of Florida, and the Ocala Division. The Court also agrees that the hours assessed by the Magistrate Judge are reasonable. This was a lengthy case that spanned over 3.5 years, involved numerous claims, multiple rounds of motions practice, and a five day jury trial. American Home received the full amount of relief requested, and prevailed on all claims against Weaver. Moreover, the issues of law and fact for each claim asserted against both Weaver and Beacon were closely intertwined, making any attempt to separate fees between parties nearly impossible. It also bears repeating that American Home incurred these fees prosecuting a joint fraudulent scheme, and that Weaver and Beacon were found jointly and severally liable on all claims.
The Court also rejects Weaver's claim that the Magistrate Judge's report and recommendation should be overturned because he did not explicitly consider the factors listed in Fla. Stat. § 768.79. Weaver has not presented any binding or persuasive legal authority for the proposition that the Magistrate Judge had to explicitly consider those factors. Rather, the two unpublished district court decisions cited, Kowalski v. Jackson Nat. Life Ins. Co., 2014 WL 4101567 (S.D.Fla. Aug. 20, 2014), and Williams Farm Part. v. American Citrus Prods. Corp., 2009 WL 1952784 (M.D.Fla. July 6, 2009), merely state that the courts in those two particular cases will consider the factors listed in § 768.79 as guidance in reaching their decisions. Contrary to Weaver's argument, neither decision mandates that a court consider the § 768.79 factors, and even if they did, such a mandate would not be binding on this Court.
Fla. Stat. § 768.79(7)(b) provides that a court shall consider, along with other relevant criteria, six factors: (1) the then apparent merit or lack of merit in the claim; (2) the number and nature of the offers made by the parties; (3) the closeness of the questions of fact and law at issue; (4) whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer; (5) whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties; and (6) the amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.
The Court further notes that even if consideration of the § 768.79(7)(b) factors was mandated, they weigh in favor of the fees awarded to American Home. Each of the claims asserted had merit; the offer American Home made to Weaver was substantial and in good faith; there is no evidence that American Home refused to furnish any information to Weaver; the claims in this case were not overly complex and did not involve questions of far-reaching importance; and Weaver's refusal to accept the offer, first made on December 23, 2010, resulted in an additional 2.5 years of litigation, and nearly a year of post-trial motions practice.
Lastly, Weaver objects to the Magistrate Judge's proposed award of costs in the amount of $6,631.01. Specifically, Weaver seeks to have stricken $2,387.41 in costs related to transcript shipping and handling and the videotaped deposition of Patrick Green. Again, Weaver never raised these arguments in its original response to American Home's motion; therefore the Court will exercise its discretion and consider these arguments waived. In any event, these costs are permitted pursuant to 28 U.S.C. § 1920(2) and (4). Weaver's objections to the award of costs will be overruled.
Weaver has not objected to the amount of pre-judgment interest.
Conclusion
Accordingly, upon a de novo review, it is hereby ORDERED as follows:
(1) The Magistrate Judge's Report and Recommendation (Doc. 298) is ADOPTED, CONFIRMED, AND MADE A PART HEREOF.
(2) Plaintiff American Home Assurance Company's Motion for Award of Attorney's Fees, Costs, and Pre–Judgment Interest against Defendant Weaver Aggregate Transport Inc. (Doc. 239) is GRANTED IN PART AND DENIED IN PART.
(3) Defendant Weaver Aggregate Transport, Inc.'s Objections (Doc. 306) are OVERRULED. The Defendant's request for an evidentiary hearing is also DENIED.
(4) The Clerk is directed to enter judgment in favor of Plaintiff American Home Assurance Company and against Defendant Weaver Aggregate Transport, Inc., in the following amounts: $289,737.50 in attorney's fees, $6,069.26 in costs, and $73,893.93 in prejudgment interest, for a total award of $369,700.69IT IS SO ORDERED.
DONE and ORDERED.
Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, M.D. Fla., within fourteen (14) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
PHILIP R. LAMMENS, United States Magistrate Judge.
After prevailing on all claims at trial, Plaintiff, American Home, filed the instant motion for attorney's fees, costs, and prejudgment interest against Defendant Weaver (Doc. 239), to which Weaver has responded (Doc. 251). For the following reasons, I submit that American Home's motion is due to be GRANTED in substantial part.
I. BACKGROUND
On July 22, 2010, American Home filed this action against Weaver and co-defendant Beacon. American Home sought recovery against Weaver on theories of breach of contract, unjust enrichment, open account, account stated, and fraudulent inducement. Following a four-day trial, the jury found that Weaver and Beacon were jointly and severally liable to American Home for $404,013. (Docs. 232 & 236).
II. DISCUSSION
American Home now seeks $292,945.50 in attorney's fees; $6,663.01 in taxable costs; and $73,893.93 in prejudgment interest. (Doc. 239). Weaver argues both that American Home cannot obtain attorney's fees under Florida's offer of judgment statute, Fla. Stat. § 768.79, as none of America Home's claims were based in Florida law, and that the fees are, nevertheless, excessive. (Doc. 251).
Weaver's initial argument that the Court should stay American Home's request pending resolution of the post-trial motions is moot, as the Court denied Weaver's Motion to Compel Election of Remedies by American Home (Doc. 247) and Motion for Judgment as a Matter of Law, New Trial, or Remittitur (Doc. 248). (See Doc. 282).
A. Fla. Stat. § 768.79 applies to American Home's causes of action.
Florida's offer of judgment statute establishes a party's entitlement to attorney's fees upon certain conditions related to the filing an offer of judgment. On December 23, 2010, American Home served its offer of judgment on Weaver pursuant to § 768.79, Fla. Stat., proposing that Weaver pay $250,000 for full and final settlement of all of American Home's claims. (Doc. 2391). It did not withdraw its offer, and Weaver failed to accept it within the statutorily-permitted time period. Therefore, American Home contends that it is entitled to its attorney's fees from December 23, 2010 forward because the amount the jury awarded ($404,013) is greater than the amount of the offer plus 25 percent ($312,500). See Fla. Stat. § 768.79
As an initial matter, federal courts in Florida can, and do, apply Florida's offer of judgment statute to award attorney's fees to a prevailing party. See Menchise v. Akerman Senterfitt, 532 F.3d 1146, 1150 (11th Cir.2008) ; see also Kearney v. Auto–Owners Ins. Co., 713 F.Supp.2d 1369, 1373 (M.D.Fla.2010) ; De Varona v. Discount Auto Parts, LLC, 935 F.Supp.2d 1335, 1343 (S.D.Fla.2013). Weaver argues, however, that the statute is inapplicable here, as none of American Home's claims are governed by Florida law. Indeed, Weaver further argues that American Home should be estopped from relying on Florida law because it argued both before and at trial that New York, Michigan, and Illinois law applied to its breach of contract, unjust enrichment, and fraudulent inducement claims.
As this Court is exercising diversity jurisdiction under 28 U.S.C. § 1332, it must apply substantive Florida state law. Doudeau v. Target Corp., 572 Fed.Appx. 970, 971 (11th Cir.2014) ; SureTec Ins. Co. v. Nat'l Concrete Structures, Inc., 12–60051–CIV, 2013 WL 394873 (S.D.Fla. Jan. 31, 2013). Florida's offer of judgment statute is substantive law: “[i]t is clear that statutes allowing for recovery of attorney's fees are substantive for Erie purposes.” McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir.2001) amended on reh'g, 311 F.3d 1077 (11th Cir.2002) ; see also Southeast Floating Docks, Inc. v. Auto–Owners Ins. Co., 82 So.3d 73, 80 (Fla.2012) (“we hold that section 768.79 is substantive for both constitutional and conflict of law purposes”). Thus, it appears that § 768.79, which is the substantive law of Florida, should be applied here, as Plaintiff contends.
While the Florida Supreme Court recently held that § 768.79 does not apply when the parties have contractually agreed (through a choice of law provision) to be bound by the substantive law of another jurisdiction, the Court did not go so far as to say that the Florida statute could not apply where the substantive law of another jurisdiction was applied to a particular claim in the absence of a choice of law provision. See Southeast Floating Docks, 82 So.3d at 77–78, 81. Instead, its holding appears limited to contractual disputes involving a specific choice of law provision selecting non-Florida law as the substantive law to be applied in the case. Id. at 77–78. Indeed, the question before the Court was whether, if § 768.79 constitutes substantive law (which, again, it held it does), would it be “inapplicable in instances where parties to a contract have agreed to be bound by the substantive law of another forum,” which it held it would. Id.; see also Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 372 (Fla.2013) (noting that in Southeast Floating Docks “the cause of action arose from a contract with a choice of law provision that required the application of Michigan law, causing a conflict of law between Michigan and Florida law”). Further, in recognizing that BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366, 368 (Fla. 4th DCA 2001) and Bennett v. Morales, 845 So.2d 1002 (Fla. 5th DCA 2003), which both held more broadly that § 768.79 applied in “all civil cases brought in Florida,” were erroneous insofar as they conflict with Southeast Floating Docks, the Court specifically stated that the problem with those opinions was that their reading of the statute would “supercede the choice of law by the parties, ” which, according to the Court, the statute cannot be read to do. Southeast Floating Docks, 82 So.3d at 81–82 (emphasis added). Again then, because the Court's focus in disapproving BDO Seidman and Bennett was preserving the parties' express, contractual choice of law provision, I submit that Southeast Floating Docks should not (and cannot) be read to go so far as to say that Florida's substantive offer of judgment statute does not apply in a case (such as this one) where no such contractual choice of law provision exists.
Notably, while Horowitch was not asked to consider the question presented here, but rather the unrelated issue of whether the statute is applicable where a plaintiff seeks both damages and equitable relief (which it held it was not), it did appear to note that a federal district court could apply Florida's offer of judgment statute where it applied Florida law to several claims and Arizona law to one of the other claims. Horowitch, 107 So.3d at 371–72.
But see Higgins v. West Bend Mut. Ins. Co., 85 So.3d 1156 (Fla.Dist.Ct.App.2012), which is not binding on this Court, but did deny, without discussion, a motion for attorney's fees under § 768.79 where it applied Minnesota law to a contract, even where there was no choice of law provision.
Here, while there was apparent debate about which state's law might or should govern a particular claim, there was no choice of law provision in the contract that dictated the issue. (See Doc. 239; American Home's Trial Exhibits 14 & 29).
Now, if the district judge applied Florida law—which he appears to have done—the issue is clear: § 768.79 applies. If the district judge did not apply Florida law, it is arguably a more difficult question. But, given the limited nature of Southeast Floating Docks, where, as discussed, the contract's choice of law provision clearly rendered Florida's offer of judgment statute inapplicable, and because this case is not, and was not, contractually governed by the substantive law of any other jurisdiction, I would submit that Florida's offer of judgment statute should apply either way. (And, therefore, I need not make any other effort to determine, after the fact, what law—other than Florida law—governed the claims in this suit.) In any event, as stated, there is no indication here that the district judge applied anything other than substantive Florida law, so I will proceed accordingly.
B. Attorney's Fees
Because American Home prevailed on its claims, and for reasons noted above, it is entitled to fees under § 768.79.
While American Home has a right to attorney's fees incurred in the successful prosecution of its claims, the Court has a corresponding duty to ensure that such an award is reasonable. In determining a reasonable attorney's fee, the Court applies the federal lodestar approach, which is calculated by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate for the services provided by counsel for the prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994) (per curiam). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Once the court has determined the lodestar, it may adjust the amount upward or downward based upon a number of factors, including the results obtained. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988).
“Ultimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.’ ” Villano v. City of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir.2001) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933 ). Additionally, the Court is “an expert on the question [of attorney's fees] and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir.1940) ).
1. Reasonable Hourly Rates
“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with the prevailing market rates. Id. The trial court, itself, is an expert on the question of the reasonableness of fees and may consider its own knowledge and experience. Id. at 1303.
Here, American Home contends that its law firm, Carlton Fields Jorden Burt (“Carlton Fields”), reduced the hourly rates by 15 percent to reflect the Ocala market, rather than the rates in larger cities of the district, such as Tampa, Jacksonville, and Orlando. (Doc. 239, p. 12). Specifically, American Home requests that the Court accept the following rates for each attorney and paralegals in this matter: $416 per hour for Attorney Meeks, a shareholder; $248–306 per hour for Attorney Weiss, a shareholder; $171–229 per hour for Attorney Strader, an associate; $160229 per hour for Attorney Cheek, a former associate; and $114 per hour for Paralegal Murray.
All lawyers and paralegals were affiliated with Carlton Fields during the relevant time period.
In support of its hourly rates, American Home has filed the declaration of its fee expert, Mr. Jones. (Doc. 239–5). Mr. Jones, who has been an attorney for 31 years, is a partner in Holland & Knight LLP's Orlando office and practices in the area of complex commercial litigation at the trial and appellate levels. Mr. Jones opines that the time expended and the corresponding amount of fees charged for American Home's counsel's time were reasonable. Based on his experience in Central Florida during the relevant period, and his general experience with fees charged by other comparable law firms in the District, Mr. Jones opines that the proposed hourly rates are at or below the customary hourly charges for attorneys and paralegals of similar experience and skill, and are, therefore, reasonable. (Doc. 239–5, p. 5). He asserts that the hourly rate is further justified by the nature of the case and Carlton Fields's ultimate success in obtaining a jury verdict in favor of its client.
Weaver has not offered any evidence to refute the reasonableness of the requested hourly rate. It does not even explicitly argue that the requested rate is unreasonable. Weaver merely alleges that the total amount of fees incurred is excessive. Although Weaver does not contest American Home's claimed hourly rates, the Court will briefly discuss counsel's qualifications to determine the reasonableness of the claimed hourly rates in order to comply with its duty to avoid awarding excessive fees and expenses. See Access For Disabled, Inc. v. v. FFH, Inc., 06–80899–CIV, 2010 WL 1713247 (S.D.Fla. Apr. 7, 2010) report and recommendation adopted sub nom. Access for the Disabled, Inc. v. FFH, Inc., 06–80899–CIV, 2010 WL 1713242 (S.D.Fla. Apr. 28, 2010).
While American Home offers Mr. Jones's declaration and its timekeepers' biographies to support the requested hourly rates, it does not offer any other “direct evidence of rates charged under similar circumstances.” Chemische Fabrik Budenheim KG v. Bavaria Corp. Int'l, No. 6:08–cv–1182–Orl–22DAB, 2010 WL 98991, at *4 (M.D.Fla. Jan. 6, 2010). In the absence of additional evidence, the Court may use its own discretion and expertise to determine the appropriate hourly rate to be applied to an award of attorney's fees. Scelta v. Delicatessen Support Serv., Inc., 203 F.Supp.2d 1328, 1331 (M.D.Fla.2002).
Here, based upon the Court's own experience and familiarity with rates in the Ocala Division, the undersigned finds that the requested rate for Attorneys Meeks is slightly higher than the prevailing market rates. See, e.g., Delta RF Tech., Inc. v. RIIMIC, LLC, No. 5:09–cv–373–Oc–10PRL (M.D.Fla. Nov. 4, 2013) (awarding counsel a rate of $350 per hour); Raetano v. Burzynski, No. 8:08–cv–200–T–17–EAJ, 2009 WL 691921 (M.D.Fla. Mar. 13, 2009) (awarding counsel a rate of $350 per hour); Harty v. Bapuji, No. 8:10–cv–2720–T–27TBM, 2012 WL 2044970 (M.D.Fla. May 17, 2012) (awarding counsel a rate of $350 per hour). While Attorney Meeks's rate may be higher than rates awarded in this Division in the past, it is represented that he has 32 years of experience at a well-established firm that represents clients throughout Florida. Given the nature of the case and his experience, the Court will award a rate of $400. Otherwise, the undersigned finds that the requested rates should be approved by the Court because they are reasonable and consistent with market rates in the Ocala Division for this litigation.
2. Reasonableness of Hours Expended
The next step in the lodestar analysis is to determine what hours were reasonably expended on the litigation. The attorney fee applicant should present records detailing the amount of work performed and “[i]nadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary.”Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985). Then, the fee opponent “has the burden of pointing out with specificity which hours should be deducted.” Rynd v. Nationwide Mut. Fire Ins. Co., No. 8:09–cv–1556–T–27TGW, 2012 WL 939387, at *3 (M.D.Fla. January 25, 2012) (quoting Centex–Rooney Const. Co., Inc. v. Martin Cnty., 725 So.2d 1255, 1259 (Fla.App.Ct.1999) ). Attorneys “must exercise their own billing judgment to exclude any hours that are excessive, redundant, or otherwise unnecessary.” Galdames v. N & D Inv. Corp., 432 Fed.Appx. 801, 806 (11th Cir.2011). A court may reduce excessive, redundant, or otherwise unnecessary hours, or may engage in “an across-the-board cut,” as long as the court adequately explains its reasons for doing so. Id.
American Home seeks $292,945.50 of compensation for 1,156.8 hours of legal work, comprising: (1) 200.5 hours for Attorney Meeks; (2) 317.8 hours for Attorney Weiss; (3) 194.2 hours for Attorney Strader; (4) 390.1 hours for Attorney Cheek; and (5) 54.2 hours for Paralegal Murray. (Doc. 239, p. 13). To substantiate these hours, American Home has filed nearly 100 pages of billing records from Carlton Fields. (Doc. 239–4). American Home notes that this was a lengthy case, filed in early 2010. The case involved a full week of depositions in at least three states, multiple rounds of summary judgment motions, and a protracted discovery period. American Home claims it was “careful throughout this litigation to control expenses,” spending only minimal amounts of time on the case until trial preparations commenced. (Doc. 239, p. 14). Of note is American Home's minimal activity for a two-year period, during which it only billed time related to a hearing, Mr. Green's deposition, and a response to Weaver's summary judgment motion.
American Home offers two declarations in support of the reasonableness of the number of hours expended. First, American Home offers the Declaration of Attorney Weiss to provide a general description of the work done by the respective Carlton Fields timekeepers and to explain and attach timekeeping records. (Doc. 239–4). Attorney Weiss notes that American Home reduced all rates by 15 percent in order to align them with rates typical of the Ocala legal market. In addition, he states that American Home does not seek reimbursement for $39,250 in attorneys' fees for which it has been or will be billed.
That amount was for time incurred by certain attorneys, paralegals, and litigation support staff at Carlton Fields who had a relatively limited role in the prosecution of this case. (Doc. 239–4, p. 6).
Second, as noted above, American Home submits the Declaration of David Jones, its fee expert, in support of its motion for attorney's fees. (Doc. 239–5). Upon his review of Carlton Fields's rates and billing records, Mr. Jones opined that the fees claimed were “fair and reasonable—both on an overall basis and as to the hourly rates....” (Doc. 239–5, p. 7).
Turning to Weaver's response to the instant motion, the Court notes that Weaver has not met its burden to point out with specificity and reasonable precision which hours should be deducted. Scelta, 203 F.Supp.2d at 1332 (“Objections and proof from fee opponents concerning hours that should be excluded must be specific and reasonably precise.”). In opposing American Home's request for attorney's fees, Weaver makes broad, unavailing statements, such as American Home's fees are excessive because the fees sought are nearly three-fourths as much as its judgment. (Doc. 251, p 6). Weaver offers no case law to demonstrate that this allegation is legally significant. Weaver also claims that American Home spent less time on the case than Weaver, but accrued more fees than Weaver. (Doc. 251, p. 6). In sum, Weaver fails to point to a single specific hour it would have the Court deduct or provide a declaration of a fee expert to support its claim.
In the Eleventh Circuit, generalized statements that the time spent was unreasonable or unnecessary are not particularly helpful and not entitled to much weight. Scelta, 203 F.Supp.2d at 1332. Accordingly, courts in this District generally view a fee opponent's failure to explain exactly which hours it views as unnecessary or duplicative as “fatal.” Lindsey v. Howell, 8:10–CV–01910–T–23, 2012 WL 6699593 (M.D.Fla. Nov. 26, 2012) report and recommendation adopted, 8:10–CV–1910–T–23, 2012 WL 6699584 (M.D.Fla. Dec. 26, 2012) ; see also Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389 (11th Cir.1997). Indeed, courts have gone so far as to accept all hours as to which the fee opponent has not made an objection. Scelta, 203 F.Supp.2d at 1332 ; Access For Disabled, Inc. v. FFH, Inc., 2010 WL 1713247, at *4–5 (compensating plaintiffs for all hours billed where defendant did not specifically object to any of counsel's other billing entries). Consequently, unless clearly non-compensable, all hours as to which Weaver has not made a sufficient objection will be accepted. See Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas Cnty., 278 F.Supp.2d 1301, 1315 (M.D.Fla.2003).
The Court reviewed in detail the billing records submitted by American Home. These records were only redacted in a few instances to preserve attorney-client privilege, making the entries easy to read. In addition, there were relatively few instances of block billing (at least until December 2012), which allowed the Court to examine the precise amount of time spent on each task. Given the nature of this case, which was litigated over a three year-period, and involved motions to dismiss, multiple motions for summary judgment, writs of garnishment, jury selection, and a jury trial, the Court finds the number of hours expended on this case reasonable. American Home prevailed on all of its claims in this heavily litigated case, and the Court concludes it is entitled to all 1,156.8 hours requested.
3. Lodestar Summary
In summary, the undersigned recommends that Attorney Meeks's rate be reduced from $416 to $400. The Court finds the other requested rates to be reasonable and recommends that they stand. The Court recommends granting the entire number of hours requested: 1,156.8. With the minor rate reduction, the total fee award equals $289,737.50.
C. Costs
As the prevailing party, American Home requests that the Court award its taxable costs of $6,663.01, pursuant to Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920. American Home provides a Bill of Costs (Doc. 239–2) and supporting documentation (Doc. 239–3), as required by statute and the Federal Rules of Civil Procedure. Weaver does not object to any of American Home's requested costs.
Fed.R.Civ.P. 54(d) provides that costs other than attorney's fees “should be allowed to the prevailing party” unless a federal statute, the federal rules, or court order provides otherwise. Fed.R.Civ.P. 54(d)(1). This rule creates a presumption in favor of awarding costs to the prevailing party. Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1296 (11th Cir.2001) (citing Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir.1991) ). In taxing costs under Rule 54, courts may tax only those costs explicitly authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).
Under 28 U.S.C. § 1920, the following costs may be taxed: (1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under § 1923; and (6) compensation of court appointed experts and interpreter services. 28 U.S.C. § 1920 ; Mathews v. Crosby, 480 F.3d 1265, 1276–77 (11th Cir.2007).
In the instant motion, American Home requests $350 for the filing fee incurred in connection with filing the complaint, and $6,313.01 in transcript costs. (Doc. 239, p. 15). Specifically, the transcript costs include $6,154.56 for the deposition transcripts of Russell Weaver, Salvatore Manzo, Donna Harwood, Stephen Fulton, and Patrick Green, and $158.45 for the hearing transcript of the pretrial conference.
The Court finds that American Home is entitled to recover $350 for its filing fee. Access for the Disabled, Inc. v. Missouri Mart, Inc., 8:05CV392 T23MSS, 2006 WL 5432711 (M.D.Fla. Dec. 7, 2006) (awarding filing fee).
The Court also finds that American Home is entitled to nearly all of the requested transcript costs. The Eleventh Circuit has determined that a party may recover the cost of a deposition transcript if it was “necessarily obtained” for use in the case. See EEOC v. W & O, Inc., 213 F.3d 600, 621 (11th Cir.2000). American Home notes that all of the witnesses mentioned above testified at trial, and, specifically, Mr. Fulton and Mr. Green's videotaped depositions were played at trial. (Doc. 239, p. 16).
The Eleventh Circuit has held that when a party notices a deposition to be recorded by nonstenographic means, or by both stenographic and nonstenographic means, and no objection is raised at that time by the other party to the method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate under § 1920 to award the cost of conducting the deposition in the manner noticed. Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 464–65 (11th Cir.1996). For such costs to be taxable, the prevailing party must explain why it was necessary to obtain both regular transcripts and videotaped copies. Id. at 465 (noting that the prevailing party failed to explain why it was necessary to obtain video copies for use in the case). Courts in the Eleventh Circuit routinely decline to award costs for videotaped depositions because the party requesting the cost failed to explain why such methods were necessary. See Ferguson v. Bombardier Srvcs. Corp., No. 8:03–cv–539–T–31DAB, 2007 WL 601921, *3 (M.D.Fla. Feb. 21, 2007) ; Perfect Web Techs., Inc. v. Infousa, Inc., No. 07–80286–Civ, 2009 WL 2407689, *9 (S.D.Fla. Aug. 4, 2009) (declining to award costs for videotaped depositions because the movant failed to explain why both stenographically transcribed and videotaped copies of the deposition were necessary) (citations omitted); Utopia Provider Sys., Inc. v. Pro–Med Clinical Sys., L.L.C., No. 07–60654–Civ, 2009 WL 1210998, *3 (S.D.Fla. May 1, 2009) (same).
While American Home states that both Mr. Fulton and Mr. Green's depositions were played at trial in lieu of live testimony from those witnesses, it does not explain why it was necessary to obtain a videotaped deposition. American Home does not, for instance, claim that Mr. Fulton and Mr. Green were unavailable for trial and, as a result, a videotaped deposition was necessary to provide evidence to the jury. In fact, American Home claims that all of the witnesses mentioned above, including Mr. Fulton and Mr. Green, testified at trial. But American Home asserts that Weaver did not object to the videotaping of Mr. Fulton and Mr. Green's depositions (Doc. 239, p. 16), and, in fact, it was Weaver that requested the videotaping of Mr. Green's deposition. (Doc. 239, p. 16, n. 10). Because American Home claims that Weaver sought to videotape Mr. Green's deposition, and Weaver does not object to the requested cost, the Court will award American Home the requested cost of Mr. Green's deposition. American Home, however, has failed to adequately explain why it was necessary to obtain stenographically transcribed and videotaped copies of Mr. Fulton's deposition. Therefore, the Court will deny American Home's request for the cost of Mr. Fulton's video deposition, $593.75.
American Home also requests $158.45 for the hearing transcript of the November 25, 2013 pretrial conference. Weaver does not object to American Home's request. American Home argues that the transcript was important for trial preparation, especially on the issues of jury selection and jury instructions, which were discussed in detail at the conference. (Doc. 239, p. 17). Courts in this District have awarded the cost of transcripts of pretrial hearings which were “reasonably necessary.” Maris Distrib. Co. v. Anheuser–Busch, Inc., 5:97CV15–0C–10C, 2001 WL 862642 (M.D.Fla. May 4, 2001). Upon due consideration, the Court agrees with American Home that the pretrial conference transcript was reasonably necessary. Thus, the Court finds that American Home is entitled to the cost of the hearing transcript of the pretrial conference.
In summary, the Court finds that American Home is due to be awarded $350 for the filing fee, and $5,719.26 in transcript costs—a total of $6,069.26 in costs.
D. Prejudgment Interest
American Home contends that it is entitled to an award of $73,893.93 in prejudgment interest pursuant to Fla. Stat. § 55.03. (Doc. 239, p. 17). Weaver does not dispute that American Home is entitled to prejudgment interest, nor its calculations. Weaver merely argues that, should the Court grant its Motion for Remittitur, the Court should reduce American Home's judgment to $145,578. (Doc. 251, p. 6–7). As noted above, Weaver filed a Motion for Judgment as a Matter of Law, New Trial, or Remittitur (Doc. 248), which the Court denied in all respects. (Doc. 282). Therefore, as an initial matter, Weaver's request to adjust the amount of prejudgment interest is due to be denied.
In diversity cases, the Court follows Florida state law governing the award of prejudgment interest. Royster Co. v. Union Carbide Corp., 737 F.2d 941, 948 (11th Cir.1984). According to the Florida Supreme Court, a plaintiff is entitled to prejudgment interest as a matter of law. SEB S.A. v. Sunbeam Corp., 476 F.3d 1317, 1320 (11th Cir.2007) (citing Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985) ). Florida courts allow an award of prejudgment interest in cases involving contract, tort, unjust enrichment, and fraudulent inducement claims. See Bosem v. Musa Holdings, Inc., 46 So.3d 42 (Fla.2010) (contract, fraud, and certain tort cases); Argonaut, 474 So.2d at 215 (awarding prejudgment interest in subrogation action to recover monies paid for negligent property loss); Montage Grp., Ltd. v. Athle–Tech Computer Sys., Inc., 889 So.2d 180, 199 (Fla.Dist.Ct.App.2004) (unjust enrichment).
In the absence of a special contract for the rate, the applicable rate of interest is generally stated in § 55.03, Fla. Stat. IberiaBank v. Coconut 41, LLC, 984 F.Supp.2d 1283, 1299 (M.D.Fla.2013) (citing Fla. Stat. § 687.01 ). The prejudgment interest is the rate effective at the time of entitlement. Id. (citing Genser v. Reef Condo. Ass'n, Inc., 100 So.3d 760, 762 (Fla. 4th DCA 2012) ). The computation of prejudgment interest is “a mathematical computation” and “a purely ministerial duty,” which requires no finding of fact and permits no discretion. SEB S.A., 476 F.3d at 1320. Prejudgment interest accrues from the date of the loss, or accrual of cause of action, is an element of damages, until final judgment is rendered. IberiaBank, 984 F.Supp.2d at 1299 (citing Bel–Bel Intern. Corp. v. Cmty. Bank of Homestead, 162 F.3d 1101, 1110 (11th Cir.1998) ).
The Florida Chief Financial Officer set the judgment interest rate for July 22, 2010–September 30, 2011 at 6 percent, and the rate for October 1, 2011–February 3, 2014 at 4.75 percent. See Jeff Atwater, Florida's Chief Financial Officer, Historical Judgment Interest Rates, Florida Department of Financial Services, Division of Accounting and Auditing, http://www.myfloridacfo.com/Division/AA/Vendors/default.htm and http://www.myfloridacfo.com/Division/AA/Vendors/JudgmentInterestRates.htm (last visited Oct. 9, 2014). Effective June 26, 2003 to June 30, 2011, the interest rate remained the same until paid.Fla. Stat. § 55.03(3) (2003). Effective July 1, 2011 and currently, the interest rate adjusts annually on January 1 of each year until paid, and the rate is adjusted quarterly. Fla. Stat. § 55.03(1, 3) (2011).
Here, American Home uses the date of the filing of the complaint—July 22, 2010 (Doc. 1)—as the initial date on which prejudgment interest should be awarded. Courts in this District have found it reasonable to use the date of the filing of the complaint as the date on which payment was due. See Hawkins v. Condo. Owners Ass'n of Sand Cay, Inc., 8:10–CV–650–T– 30TBM, 2012 WL 4761357 (M.D.Fla. Oct. 5, 2012) (finding it “reasonable to use the date of the filing of the complaint” to award prejudgment interest where the jury made no finding with respect to the date on which payment was due). The jury rendered its final judgment on February 3, 2014. (Doc. 236).
American Home notes that it could have argued that July 20, 2007–the date on which American Home sent its final invoice to Weaver—should mark the initial date, but chose July 22, 2010 to simplify the matter and because the jury was not asked to make a specific finding with respect to the date on which payment was due to American Home. (Doc. 239, p. 18).
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The Court adopts American Home's reasoning that prejudgment interest should begin on July 22, 2010, the date of the filing of the complaint, and should end on the date of the judgment, February 3, 2014. Accordingly, the Court finds that the amount of prejudgment interest due to be awarded against Weaver is $73,893.93.
III. CONCLUSION
The Court recommends that American Home's Motion for Award of Attorney's Fees, Costs, and Prejudgment Interest Against Weaver (Doc. 239) be GRANTED as set forth herein, and that American Home receive an award of $289,737.50 in attorney's fees; $6,069.26 in costs; and $73,893.93 in prejudgment interest.