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Ayers v. State Farm Mutual Automobile Insurance Co.

United States District Court, M.D. Florida, Orlando Division

January 11, 2018

FRANK AYERS, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, RUTH MIER GRAHAM and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendants.

          ORDER

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendant State Farm Mutual Automobile Company's Motion for Attorneys' Fees (Doc. 77) associated with its prior motion for protective order (Doc. 68). In granting the motion for protective order, the Court determined that State Farm was entitled to its reasonable expenses incurred in making the motion, including attorneys' fees (Doc. 73 at 5-6). Now, State Farm seeks an award of $6, 352 in fees based upon 18.9 total hours expended by three attorneys, at rates ranging from $270 to $550 per hour. Plaintiff opposes this amount, and argues that a reasonable fee is $962.50 for 3.5 hours expended at an average rate of $275 hour (Doc. 78). On review, the motion for fees is GRANTED, in part, and State Farm shall recover a reasonable fee of $3, 347.50.

         Standards of Law

         The Court employs the customary lodestar approach as the first step in calculating a reasonable fee for the services of State Farm's attorneys. Hensley v. Eckerhart, 461 U.S. 424 (1983); Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); FTC v. Life Mngm't Servs., Case No. 6:16-cv-982-Orl-41TBS, 2016 WL 7013517, at *2 (M.D. Fla. Oct. 14, 2016). “[T]he starting point in any determination for an objective estimate of the value of a lawyer's services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman, 836 F.2d at 1299. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Henns v. Mony Life Ins. Co. of Am., Case No. 5:11-cv-55-Oc-37TBS, 2012 WL 1599871, at *3 (M.D. Fla. April 13, 2012), quoting Hensley, 461 U.S. at 437.

         “[T]he lodestar as calculated in Hensley presumptively includes all of the twelve factors derived from the ABA Code of Professional Responsibility DR 2-106 (1980), and adopted in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), except on rare occasions the factor of results obtained and, perhaps, enhancement for contingency.” Norman, 836 F.2d at 1299. The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19 (abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)).

         Once the Court has determined the lodestar, it may adjust the amount upward or downward based on a number of factors including the results obtained. Norman, 836 F.2d at 1302. “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). The Court is “an expert on the question [of attorneys' 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 1303 (quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)).

         The amount of time billed is viewed as “the most useful starting point for determining the amount of a reasonable fee.” Hensley, 461 U.S. at 433. The applicant should present records detailing the amount of work performed. Once the party seeking fees produces adequate billing records, the opponent “has the burden of pointing out with specificity which hours should be deducted.” Rynd v. Nationwide Mutual Fire Ins. Co., No. 8:09-cv-1556-T-27TGW, 2012 WL 939387, at * 3 (M.D. Fla. Jan. 25, 2012) (quoting Centex-Rooney Const. Co., Inc. v. Martin Cnty, 725 So.2d 1255, 1259 (Fla. 4th DCA 1999)); Norman, 836 F.2d at 1301.

         “When awarding an attorney's fee, the ‘[c]ourts are not authorized to be generous with the money of others, and it is as much the duty of the courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.'” Oden v. Vilsack, No. 10-00212-KD-M, 2013 WL 4046456, at *4 (S.D. Ala., Aug. 9, 2013) (quoting Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)).

         Formulating the award

         State Farm is represented by three Carlton Fields Jorden Burt, P.A. attorneys: Benjamine Reid (a shareholder), D. Matthew Allen (a shareholder), and Jon M. Philipson (an associate). The motion calculates the time expended by each attorney and the rates charged as follows:

• Mr. Reid, the lead and most senior attorney, expended 2.8 hours, at a rate of $550 per hour, revising and finalizing the motion;
• Mr. Allen, the next most senior attorney, expended 3.0 hours, at a rate of $425 per hour, revising the motion, conferring with deponents, and conducting the good faith conference with Plaintiff's counsel;
• Mr. Philipson, the most junior attorney on the matter, expended 13.1 hours, at a rate of $270 per hour, conducting fact discovery, legal research, legal analysis of discovery requests; conferring with deponents; and drafting and revising the 16-page motion.

         The motion is accompanied by Mr. Reid's declaration summarizing the considerable experience and qualifications of counsel, providing edited time entries for the work performed, and attesting that the time entries ...


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