United States District Court, M.D. Florida, Orlando Division
VISTA CLINICAL DIAGNOSTICS, LLC and DAVIAN SANTANA, Plaintiffs,
PETAR MARKOVIC and JAVIER DEL HOYO, Defendants.
B. SMITH United States Magistrate Judge.
before the Court is Plaintiff's Motion and Application
for Attorney's Fees, arising out of the unexcused failure
of Defendant Javier Del Hoyo to attend his scheduled
deposition (Doc. 72). The motion is opposed by Defendants
(Doc. 77). After due consideration, the motion is
GRANTED in part and otherwise
February 26, 2018, the Court granted Plaintiffs' motion
to compel and for sanctions, regarding Defendant Del
Hoyo's non-appearance (Docs. 59, 62). As set forth in
that Order, under Fed.R.Civ.P. 37:
all costs of the attempted deposition on February 9, 2018,
including Plaintiffs' reasonable attorney's fees,
court reporter fees, videographer fees, rental for the space
in which to take the deposition, transportation and lodging
costs for Plaintiff's counsel to attempt to depose Mr.
Del Hoyo on February 9, 2018 are taxed against Mr. Del Hoyo.
(Doc. 62 at 4). Defendants moved for reconsideration of that
Order (Doc. 63), which the Court denied, finding:
“Nothing in Defendants' presentation persuades the
Court to change its original conclusion compelling Mr. Del
Hoyo, Sr. to sit for his deposition, and taxing fees and
costs related to the aborted deposition against him.”
(Doc. 69 at 5). This motion followed.
established entitlement to an award, Plaintiffs now seek to
tax $9, 675.00 in attorney's fees and $7, 833.69 in
costs, for a total sanction of $17, 508.69. Defendants claim
this amount is excessive. The Court agrees, in part, with
Court employs the customary lodestar approach in calculating
a reasonable fee for the services of Plaintiffs'
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.
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)).
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 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-Ro o ney Const. Co., In c . v .
Martin Cnty, 725 So.2d 1255, 1259 (Fla. 4th DCA 1999));
Norman, 836 F.2d at 1301. 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 (citations omitted).
“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).
seek $9, 675.00 in attorneys' fees, comprised of 18.95
hours at the rate of $300 per hour for senior associate
Cynthia G. Crider and 11.4 hours at the rate of $350 per hour
for partner Aileen R. Mazanetz. Plaintiffs have not tendered
actual billing records, relying instead on the Declaration of
Cynthia G. Crider (Doc. 72-1) and a Disinterested Attorney
Affidavit of Reasonableness of Fees and Costs, executed by
Gary Salzman, Esquire (Doc. 72-3). According to Ms.
Crider's declaration, she was the attorney with primary
responsibility for handling this matter. She categorizes the
Deposition Preparation: Preparation of questions for
Javier del Hoyo; discussions with client; legal research.
Deposition Attendance: Attendance at Deposition
location for Javier del Hoyo.
Plaintiffs' Motion to Compel Attendance at Deposition
and Request for Sanctions: Preparation of motion to
compel and request for sanctions: legal research; memo of
points and ...