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Leigh v. Avossa

United States District Court, S.D. Florida

August 24, 2017

MALIK LEIGH, ESQ., Plaintiff,
v.
ROBERT AVOSSA, et al., Defendants. RAQUEL ABRAMS-JACKSON, Plaintiff,
v.
ROBERT AVOSSA, et al., Defendants.

          ORDER AWARDING ATTORNEY'S FEES TO THE DEFENDANTS AND AGAINST MR. MALIK LEIGH, ESQ.

          WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court upon the Defendants' Motion for Attorneys' Fees and Costs re: Defendants' Motions to Suspend/Reschedule Deposition and for Protective Order and Motion for Protective Order ("Motion") [16-cv-81612, DE 59; 16-cv-81624, DE 56], which was filed in two related cases. The Motion is fully briefed. The Court has carefully reviewed the Motion, response, reply, and the Court's prior orders in the cases, as well the entire docket in each case.

         BACKGROUND

         On June 28, 2017, the undersigned entered an Order Supplementing the Court's Prior Discovery Orders and Addressing Social Media Posts of Attorney Malik Leigh, Esq. [16-cv-81612, DE 58; 16-cv-81624, DE 54] in each case. The Court explained that, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) and the inherent authority and jurisdiction of the Court, Malik Leigh, Esq., an attorney who is representing himself in case number 16-cv-81612 and is representing the plaintiff in case number 16-cv-81624, was to pay the Defendants for attorney's fees and costs expended by defense counsel in filing and litigating Defendants' Motions to Suspend and Reschedule the Deposition of Defendants Avossa and Epps for Safety Concerns and for Protective Order [16-cv-81612, DE 48; 16-cv-81624, DE 44] and in filing and litigating Defendants' Motions for Protective Order [16-cv-81612, DE 38; 16-cv-81624, DE 36]. Id.

         The Court directed the Defendants to file one memorandum in both cases in support of its request for an award of expenses which would address the hourly rate of counsel, the time expended, the amount of reasonable attorney's fees and costs that the Defendants incurred in drafting an arguing the motions in each case, and any costs incurred. [16-cv-81612, DE 58; 16-cv-81624, DE 54]. The Court also directed Mr. Leigh to file a memorandum responding and/or objecting to the amount of attorney's fees and costs sought by the Defendants, including the hourly rate of counsel and time claimed to have been expended by the Defendants' counsel. Id. Finally, the Court provided the Defendants with an opportunity to file a reply. Id. at p. 14.

         In the Defendants' Motion, they contend that they incurred $6, 350.00 in attorney's fees in filing and litigating the Defendants' Motions to Suspend and Reschedule the Deposition of Defendants Avossa and Epps for Safety Concerns and for Protective Order [16-cv-81612, DE 48; 16-cv-81624, DE 44] and filing and litigating the Defendants' Motion for Protective Order [16-cv-81612, DE 38; 16-cv-81624, DE 36], as well as $3, 349.09 in costs.[1] [16-cv-81612, DE 59, pp. 2-3; 16-cv-81624, DE 56, pp. 2-3]. They further explain that the Defendants' counsel's hourly rate is $250. Id. at p. 2. Finally, the Defendants contend that certain costs were incurred ordering expedited deposition excerpts to support their discovery motions and compensating off-duty school police for attending the depositions. Id. at pp. 2-3. Attached to the Motion is the affidavit of Shawntoyia N. Bernard, Esq. [DE 16-cv-81612, DE 59-1; DE 81624, DE 56-1].

         In response, the Plaintiff in each case filed a Motion to Alter or Amend Judgment under Rule 59(e) and Plaintiffs Response and Objection to Defendants' Motion for Attorneys' Fees and Costs re: Defendants' Motions to Suspend/Reschedule Depositions and Protective Order and Motion for Protective Order [16-cv-81612, DE 61; 16-cv-81624, DE 57].[2] The Plaintiffs object to the Defendants' Motion on the basis that the Defendants engaged in block billing and provided insufficient detail in their billing records. [16-cv-81612, DE 61, pp. 14-16; 16-cv-81624; DE 57, pp. 14-16]. They also object to the costs incurred because the "costs of security detail" do not fall within the costs related to filing and litigating the discovery motions at issue. Id. at p. 16. The Plaintiffs also claim that the Defendants have double billed for security, that the issue of costs were not discussed ahead of time, that the Defendants did not try to mitigate costs, and that the Defendants are "trying to recuperate costs they would have paid in the ordinary course of the day." Id. at p. 18.

         In reply, the Defendants first note that they have now removed all overtime hours for school police associated with a different related case. [16-cv-81612, DE 67, p. 2; 16-cv-81624, DE 64]. They ask the Court to "remove $918.06 from Defendants' request, thereby reducing the total fees and costs award sought by Defendants to $8, 781.03." Id. at p. 3. The Defendants argue that they have provided sufficient detail of the time spent by counsel in drafting and arguing the two discovery motions at issue and the time spent preparing for cancelled depositions. Id. The Defendants also contend that their counsel have not improperly used block billing in their time entries. Id. at pp. 3-4. The Defendants assert that the Plaintiffs' objection that certain time entries reflect multiple attorneys performing the same task is unsupported and meritless. Id. at p. 4. Finally, the Defendants maintain that all of their costs should be awarded. Id. at p. 5.

         LEGAL STANDARD

         A. Attorney's Fees

         A reasonable attorney's fee award is "properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1994)). This "lodestar" may then be adjusted for the results obtained by the attorney. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)). The reasonable hourly rate is defined as the "prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1999)).

         With regard to the type of evidence that the fee claimant should produce in support of a claim, in Barnes, the Eleventh Circuit has stated,

The "fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. That burden includes "supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity .... A well-prepared fee petition ...

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