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Vista Clinical Diagnostics LLC v. Markovic

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

April 4, 2018



          THOMAS B. SMITH United States Magistrate Judge.

         Pending 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 DENIED.

         On February 26, 2018, the Court granted Plaintiffs' motion to compel and for sanctions, regarding Defendant Del Hoyo's non-appearance (Docs. 59, 62).[1] 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.

         Having 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 Defendants.

         Reasonable Attorneys' Fees

         The 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.

         “[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)).

         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 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).

         Plaintiffs 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 work performed:

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 ...

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