United States District Court, M.D. Florida, Ft. Myers Division
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney's Fees, and Defendants' Motion to Vacate
Judgment. For the following reasons, the Motion for
Attorney's Fees is granted and the Motion to Vacate
Judgment is denied.
full factual background of this case is set forth in the
Court's Amended Order granting in part Plaintiff Regions
Bank's motion for summary judgment. (Docket No. 376.)
Together with the Order on Defendants' motion in limine
(Docket No. 405), the Amended Order disposed of all of
Regions's claims in its favor. The Clerk entered judgment
for Regions on March 30, 2017 (Docket No. 406). The Court
thereafter amended that judgment to specifically provide
amounts due and to grant Regions other relief. (Docket Nos.
the initial judgment was entered, Regions sought its
attorney's fees under the terms of the loan documents at
issue. The Court initially denied that motion without
prejudice, finding that it was premature to determine the
fees issue because Defendants had appealed. (Docket No. 417.)
In addition, the Court granted Defendants' motion to stay
the proceedings pending appeal, but conditioned that stay on
Defendants' posting a supersedeas bond. (Id.)
Defendants did not post the bond, and no stay issued.
early August, the Eleventh Circuit dismissed the appeal
because Defendants failed to file a timely brief. (Docket No.
438.) Defendants ultimately persuaded the appellate court to
reinstate the appeal, and that appeal is not yet fully
briefed. In the meantime, Regions again moved for its
attorney's fees. In response, Defendants filed a Motion
to Vacate, contending that documents Regions submitted in
support of its Motion show that Regions committed discovery
violations that warrant vacating the Court's prior
Motion to Vacate
contend that 212 emails Regions submitted in support of its
requested attorney's fees show that Regions did not
comply with its discovery obligations in this case.
Defendants' Motion is patently frivolous. These emails
are communications between Regions and its attorneys or among
Regions's attorneys. As such, they were privileged and
not subject to discovery. Indeed, as Regions notes,
Defendants did not seek any privileged documents in
discovery. Moreover, merely because e-mails were exchanged
between a party and its attorney does not make those e-mails
subject to discovery. Defendants' Motion to Vacate is
nothing more than another attempt to forestall the inevitable
in this matter.
seeks the attorney's fees it expended responding to
Defendants' frivolous Motion as a sanction. And while the
Court agrees that filing this Motion constitutes sanctionable
conduct, the Court also believes that the imposition of
sanctions in this instance will serve no purpose. Defendants,
and particular Defendant Charles Phoenix, who is acting as
attorney for the other Defendants, have repeatedly shown that
they are immune to attempts to coerce positive behavior.
Defendants' litigation tactics are nothing short of
abhorrent, but at this juncture it is for the Court of
Appeals to determine the merits of this case and any
appropriate relief. Regions's request for sanctions is
contends that it is due more than $500, 000 from Defendants
for attorney's fees and costs it expended in prosecuting
this matter. The parties' agreements, in the form of the
documents comprising the loans at issue, support the award of
fees and costs. The notes provide that, should the bank be
required to collect unpaid balances on the notes, Defendants
“will pay [the bank] the amount of the costs and
expenses, which includes . . . [the bank's] reasonable
attorney's fees and . . . legal expenses.” (Compl.
Exs. A, F, H.) The commercial security agreements and
commercial guaranties contain substantially similar language,
with Defendants “agree[ing] to pay upon demand all of
[the bank's] costs and expenses, ” including legal
fees and legal expenses “incurred in connection with
the enforcement of this Agreement.” (Id. Exs.
B, C, L, M, N, O.) As this Court has previously determined,
Regions has established that it is entitled to recover its
reasonable attorney's fees and costs in this matter.
(Docket No. 430.)
only issue for determination in this Motion is the
reasonableness of the fees and costs Regions requests.
Regions has supported its request with documentation of the
fees expended and the costs incurred. Defendants'
response initially reiterates the arguments made in support
of their frivolous Motion to Vacate. And when Defendants
respond substantively to the Motion, that response is without
merit. For example, Defendants assert that Regions redacted
its time records and thus that Defendants cannot challenge
those records. But the redactions are, at most, personally
identifying information regarding client representatives who
are not parties to this litigation, and thus are properly
(and likely required to be) redacted. The redactions did not
preclude Defendants from evaluating the propriety of the time
billed. Defendants also contend that the bills contain
“numerous duplicative cost entries.” (Defs.'
Opp'n Mem. (Docket No. 454) at 4.) But Defendants do not
specify any such duplicative entries, and thus have not met
their burden with respect to these allegedly duplicative
Defendants argue that Regions is not entitled to fees as a
matter of law. But the Court has already determined ...