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RCTV International Corp. v. Rosenfeld

United States District Court, S.D. Florida

March 31, 2017

RCTV INTERNATIONAL CORP., Plaintiff,
v.
MIGUEL ROSENFELD, et al., Defendants.

          ORDER ON RCTV COMPANIES' VERIFIED MOTION TO DETERMINE REASONABLE ATTORNEYS' FEES BASED UPON DEFENDANTS' SUBSTITUTION OF EXPERT ON VENEZUELAN LAW

          ANDREA M. SIMONTON, UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned Magistrate Judge upon Plaintiff RCTV Companies' Verified Motion to Determine Reasonable Attorneys' Fees, ECF No. [209]. Defendants have a filed a Response and Plaintiffs have filed a Reply, ECF Nos. [215] [216]. Pursuant to the consent of the Parties, this action has been referred by the Honorable Donald L. Graham to the undersigned for all further proceedings, including trial, ECF Nos. [64] [65]. For the following reasons, the undersigned grants the Plaintiff RCTV's Motion to Determine Reasonable Attorneys' Fees, in part.

         I. INTRODUCTION

         This case involves copyright and declaratory judgment claims between Plaintiff/Counterdefendants RCTV International Corp., (“RCTV Miami') and Radio Caracas Television RCTV, C.A., (“RCTV Caracas”) (collectively “RCTV” or “Plaintiffs”)[1] and Defendants Perla Farias De Eskinazi (“Farias”) and Miguel Rosenfeld (“Rosenfeld”) related to the creation, production and distribution of several Venezuelan Telenovelas between the years of 1989 and 2002. At the request of the Parties, the matter was bifurcated in order that the Court could resolve the ownership issue related to those copyrights, with the issue of damages related to any infringement of those copyrights to be determined later, ECF No. [164]. The instant Motion relates to the RCTV Plaintiffs' request for an award of attorney's fees and costs for additional and duplicative work performed by Plaintiffs' Counsel when the Defendants were granted leave to untimely substitute their expert on Venezuelan Law, Juan Luis Marturet, for a new expert on Venezuelan Law, Juan Rafael Farinas Diaz. For the following reasons, the Plaintiffs' Motion is Granted, in part, and the Plaintiffs are awarded $20, 427.36 in attorneys' fees and $11, 399.92 in costs for a total award of $31, 827.28.[2]

         II. BACKGROUND[3]

         Sometime in early 2015, Counsel for Defendants Miguel Rosenfeld and Perla Farias de Eskinazi were alerted to the possibility that their retained expert on Venezuelan law, Luis Marturet, would no longer be willing to testify as an expert for the Defendants. On March 24, 2015, pursuant to the Court's Amended Scheduling Order, the Plaintiffs filed their renewed Motion for Summary Judgment, and on May 7, 2015, the Defendants filed their Cross-Motion for Partial Summary Judgment and Response to RCTV's Motion for Summary Judgment, ECF No. [176].[4] In that Cross-Motion, the Defendants for the first time indicated to the Court that the Defendants' expert witness had resigned and the Defendants had retained a new expert, Jose Rafael Farina Diaz, ECF No. [176] at 8.

         The Plaintiffs then filed their Motion to Strike the New Expert and his reports and shortly thereafter the Defendants' filed their Motion to Allow Substitute Expert on Venezuelan Law. Both Motions were fully briefed, and at a June 11, 2015 hearing on the Motions, the undersigned permitted the Defendants to substitute their new expert for their old expert. In so doing, the Court implicitly found good cause for the Defendants to substitute the new expert, and stated,

I am going to impose the excess costs and attorney's fees. I'm not making a determination about what those costs are at this point. You'll need to convince me that they are the excess costs, because certainly a lot of the preparation that you did, a lot of the analysis you did of Marturet would apply to-would apply to the Farina opinion. And it's really the duplicative effort. And I understand that it requires duplicative effort. Taking a deposition, I would suggest the entire costs of either Mr. Marturet's deposition or the costs of Mr. Farina's deposition would be something that would be allocated. And you can tell me which you think it should be.

ECF No. [189] at 46-47.

         The RCTV Plaintiffs have now filed a Verified Motion to Determine Reasonable Attorneys' Fees requesting that RCTV be awarded $47, 608.92 in attorney's fees and costs incurred due to the Defendants' substitution of that new expert, ECF No. [209]. In that Motion, RCTV states that the requested amount reflects 170.0 total hours for attorney's fees consisting of 153.9 hours of work performed by Alexander Esteban at an hourly effective rate of $213.05, and 16.1 hours of work performed by Fernando S. Aran at an effective hourly rate of $212.42, ECF No. [209] at 2. In addition, RCTV seeks an additional $11, 399.92 in costs incurred related to the Defendant's substitution of their expert.

         In support of their request, the Plaintiffs have submitted invoices for attorneys' fees for the months of April 2015 through September 2015, which reflect the hours spent and the attorneys' fees incurred in preparing, deposing and litigating issues related to the new expert retained by the Defendants, ECF No. [209-2]. The Plaintiffs have also submitted the Affidavit of Sanford L. Bohrer, a partner at Holland and Knight, LLP, who has reviewed the number of attorney hours spent as a result of the Defendants' substitution, as reflected in the billing record submitted to the court, and who states that the fees and costs are reasonable under the circumstances, as are the requested hourly rates given the experience and expertise of each individual performing work, ECF No. [201-1].

         In Response, the Defendants contend that the Plaintiffs should only be entitled to recover extra attorneys' fees that are fairly attributable to the Defendants, ECF No. [215] at 1. The Defendants further contend that the Plaintiff should not be entitled to recover the costs incurred in the Plaintiffs' failed attempt to block the Defendants from substituting their expert. Also, Defendants contend that preparation to impeach the new expert witness should be minimal given that the witness was not a fact witness, but rather an expert in foreign law, and because the legal argument advanced by the new expert witness and the old expert witness was the same. Defendants thus contend that the Plaintiffs should be entitled to recover fees for the time spent preparing for the deposition of the new expert, the time to take the deposition, and the time spent integrating the new information regarding the substituted expert for purposes of preparing the summary judgment motion. The Defendants estimate an appropriate amount of attorneys' fees related to the substitution of the expert to be $6, 785.00 reflecting 23 hours of work at an hourly rate of $295.00 for Mr. Esteban, ECF No. [215] at 4. Defendants also suggest that the Plaintiff should be entitled to recover costs in the amount of $1, 508.50 to cover the costs of the deposition of the new expert, only. Therefore, Defendants urge that the Plaintiffs be awarded a total of $8, 293.50 for additional attorneys' fees and costs incurred due to the Defendants' retention of a new expert.[5] However, the Defendants also request that the Court defer payment of the costs and fees until the end of the case, when the award may be dealt with as a credit or debit in the overall assessment of fees and costs.

         In reply, the Plaintiffs assert that the Defendants' response fails to discuss the reasonableness standard for assessing a request for attorneys' fees, and also fails to discuss the factors that the Court should consider in such an award. The Plaintiffs additionally assert that the amount of time spent by the attorneys on the new expert was reasonable given that the new expert was substituted at the eleventh hour, after Plaintiffs had submitted their renewed Motion for Summary Judgment that relied on the opinions of Defendants' first expert. RCTV Plaintiffs suggest that the amount spent therefore was commensurate with the importance of the subject matter upon which the new expert was opining, the fate of twelve different intellectual properties.

         III. LEGAL FRAMEWORK

         In assessing the reasonableness of a request for attorney's fees, courts in the Eleventh Circuit generally apply the “lodestar” method to obtain an objective estimate of the value of an attorney's services. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). A court must first determine the “lodestar” figure by multiplying the number of hours reasonably expended by a reasonable hourly rate. Id.; Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The party who applies for attorney's fees bears the burden of submitting satisfactory evidence to establish both that the requested rate is in accord with the prevailing market rate and that the hours are reasonable.” Yarbrough v. Credit Control Servs., Inc., No. 09-61136-CIV, 2011 WL 860435, at *9 (S.D. Fla. Feb. 12, 2011), report and recommendation adopted, No. 09-61136-CIV, 2011 WL 860431 (S.D. Fla. Mar. 9, 2011) (citing Id. at 1303). Further, in determining reasonableness, the court is to consider the factors enumerated in Johnson v. Georgia ...


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