United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
G. WILSON, UNITED STATES MAGISTRATE JUDGE.
diversity case, the plaintiff filed this lawsuit alleging a
breach of a commercial property lease by the defendant with
respect to failing to put, keep, maintain, and repair the
leased premises and leased equipment in a first class
condition as required by the lease (Doc. 2). After a bench trial, the
court found in favor of the plaintiff (Doc. 86). Judgment,
therefore, was entered for the plaintiff (Doc. 87). The court
retained jurisdiction over any motions forattorneys' fees
and costs (Doc. 86, p. 65). Thereafter, the plaintiff filed its
Corrected Amended Final Motion for Attorneys'
Fees, Costs and Prejudgment Interest and Incorporated
Memorandum of Law (Doc. 135). The motion was referred to me
for a report and recommendation (Doc. 136). Having considered
the materials submitted and the governing legal standards, I
recommend that the plaintiff be awarded $921, 501.00 in
attorneys' fees, $39, 783.12 in costs, and prejudgment
interest accruing at a rate of 18 percent. I also recommend
that the prejudgment interest rate begins to accrue from
March 11, 2016, on $728, 638.00 in district court fees, with
the interest accruing from July 3, 2017, on $192, 863.00 in
2014, the plaintiff, Apple Glen Investors, L.P. ("Apple
Glen"), filed suit against the defendant, Express
Scripts, Inc. ("ESI"), in Hillsborough County
Circuit Court, asserting a breach of a contract claim that
the defendant had not properly maintained the leased
equipment and the leased premises as required by the lease
(Doc. 2). The basis for the lawsuit was that the defendant
did not properly maintain or repair the leased premises, or,
the leased equipment (id.). The defendant then
removed the case to this court (Doc. 1).
indicated, a bench trial was held and judgment was entered
against the defendant (Docs. 86, 87). Thus, District Judge
Virginia M. Hernandez Covington entered Findings of Fact and
Conclusions of Law on March 10, 2016 (Doc. 86). The defendant
was found to have breached the commercial lease agreement
with respect to the leased equipment and the leased premises
(id.). A final judgment of $4, 654, 688.65, plus
prejudgment interest, was entered against the defendant with
the court reserving jurisdiction over the matter of
attorneys' fees and costs (Docs. 86, 87). The court also
concluded that the plaintiff was "the prevailing party
and entitled to attorneys' fees and costs incurred to
enforce the terms of the lease and under applicable law"
(Doc. 86, p. 64).
on April 7, 2016, the defendant filed a Notice of Appeal as
to this court's Findings of Fact and Conclusions of Law
(Doc. 88). On April 11, 2016, the plaintiff filed a motion
for attorneys' fees and costs (Doc. 91). An Order was
entered denying without prejudice the plaintiffs motion for
attorneys' fees and costs with leave for the plaintiff to
re-file its motion after the entry of a mandate by the
Eleventh Circuit Court of Appeals (Doc. 92). Subsequently,
the Eleventh Circuit remanded the case in order for this
court to determine the amount of prejudgment interest on the
judgment award (Doc. 98). The plaintiff then filed a Renewed
Motion to Determine Amount of Prejudgment Interest and for
Entry of Final Judgment and Memorandum of Support (Doc. 100).
On September 8, 2016, an Order was entered granting the
plaintiffs motion and determining that judgment be entered in
favor of the plaintiff in an amount of $6, 284, 465.25, which
included $4, 654, 688.65 in damages and $1, 629, 776. 60 in
prejudgment interest (Doc. 104). An amended judgment was
entered accordingly (Doc. 105). On September 22, 2016, the
plaintiff then filed a Renewed Motion for Attorneys' Fees
and Costs and Supporting Memorandum of Law (Doc. 106).
Thereafter, on October 7, 2016, the defendant filed a Notice
of Appeal (Doc. 107). On the same day, this court entered an
Order denying without prejudice the plaintiffs motion for
attorneys' fees and costs, but with leave for the
plaintiff to re-file the motion after the entry of a mandate
by the Court of Appeals (Doc. 108).
6, 2017, the Eleventh Circuit affirmed this court's
decision (Doc. 115). On October 23, 2017, the plaintiff filed
a notice regarding its application for attorneys' fees on
appeal (Doc. 117). The next day, the plaintiff filed a Motion
for Attorneys' Fees, Costs and Prejudgment Interest (Doc.
118). The plaintiffs motion was referred to me for a Report
and Recommendation (Doc. 126). Thereafter, I entered a
Scheduling Order with respect to the plaintiffs motion for
attorneys' fees, costs, and prejudgment interest (Doc.
129). The Eleventh Circuit then granted the appellee's
motion to transfer the issue of attorneys' fees on appeal
to this court (Doc. 130). The plaintiffs motion for
attorneys' fees on appeal was also referred to me for a
Report and Recommendation (Doc. 133).
December 18, 2017, the plaintiff filed a Corrected
Amended Final Motion for Attorneys' Fees, Costs and
Prejudgment Interest and Incorporated Memorandum of Law (Doc.
135). Subsequently, District Judge Hernandez Covington
entered an Order denying the plaintiffs prior motions for
attorneys' fees and costs as moot, and referring the
plaintiffs current motion for attorneys' fees, costs, and
prejudgment interest to me for a Report and Recommendation
(Doc. 136). The defendant filed a supplemental memorandum of
law in opposition to the plaintiff s motion for
attorneys' fees, costs, and prejudgment interest (Doc.
defendant was permitted to supplement its opposition
memorandum and also filed an expert affidavit (Doc. 142).
Thereafter, the plaintiff filed a reply memorandum (Doc.
143). Subsequently, the plaintiff was given an opportunity to
file an expert affidavit regarding the defendant's
contention that attorneys' fees should be reduced because
the plaintiff only "prevailed on 17 of 29 claims"
(Doc. 144). The plaintiff was also directed to submit a
memorandum with documentation regarding any additional fees
it was seeking (id.). In that Order, the defendant
was given an opportunity to file an objection to the
remainder of the requested attorneys' fees (id-)- The
plaintiff subsequently filed a Closing Attorneys' Fees
Memorandum, indicating that it is not seeking additional fees
unless an evidentiary hearing is held, and asserting that it
has already shown that the defendant's opposition is
flawed (Doc. 145). The defendant has also submitted its
Closing Memorandum (Doc. 146). The plaintiff seeks $1, 092,
841.00 in attorneys' fees, prejudgment interest of $420,
908.46 (calculated through April 30, 2018, increasing $538.94
per day until a final judgment is entered), and $39, 783.12
in costs (Doc. 145, p. 3).
indicated, District Judge Hernandez Covington concluded that
the plaintiff "is the prevailing party and entitled to
attorneys' fees and costs incurred to enforce the terms
of the lease and under applicable law" (Doc. 86, p. 64).
Thus, the lease states (Doc. 4-3, p. 26, ¶21(d)):
Each of Tenant and Landlord (herein called "Paying
Party") agrees to pay to the other party (herein called
"Demanding Party") any and all reasonable costs and
expenses incurred by the Demanding Party in connection with
any litigation or other action instituted by the Demanding
Party to enforce the obligations of the Paying Party under
this Lease, to the extent that the Demanding Party has
prevailed in any such litigation or other action.
parties agree that Florida law applies to the determination
of the amount of the attorneys' fees (see Doc. 135, p.
17; Doc. 138, p. 3). Understandably, the defendant does not
argue against the plaintiffs entitlement to fees, only the
amount of fees requested (see Docs. 138, 142).
has adopted the federal lodestar approach as the foundation
for setting reasonable fee awards. Florida Patient's Compensation
Fund v. Rpwe, 472 So.2d 1145, 1150 (Fla. 1985); Beli
v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 406
(Fla. 1999). This method requires the court to determine a
"lodestar figure" by multiplying the number of
hours reasonably expended on the litigation by a reasonable
hourly rate for the services of the prevailing party's
attorney. Bell v. U.S.B. Acquisition Co., Inc.,
supra. The fee applicant bears the burden of
presenting satisfactory evidence to establish that the
requested rate is in accord with the prevailing market rate
and that the hours are reasonable. Norman v. The Housing
Authority of the City of Montgomery, 836 F.2d 1292, 1303
(11th Cir. 1988); Florida Patient's
Compensation Fund v. Rowe, supra. 472 So.2d at
computing the lodestar amount, the following factors,
enumerated in Rule 4-1.5 of the Rules Regulating the Florida
Bar, are to be considered (Standard Guaranty Ins. Co. v.
Ouanstrom, 555 So.2d 828.830-31 n.3(Fla. 1990)):
(1) The time and labor required, the novelty, complexity, and
difficulty of the questions involved, and the skill requisite
to perform the legal service properly;
(2) The likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) The fee, or rate of fee, customarily charged in the
locality for legal services of a comparable or similar
(4) The significance of, or amount involved in, the subject
matter of the representation, the responsibility involved in
the representation, and the results obtained;
(5) The time limitations imposed by the client or by the
circumstances and, as between attorney and client, any
additional or special time demands or requests of the
attorney by the client;
(6) The nature and length of the professional relationship
with the client;
(7) The experience, reputation, diligence, and ability of the
lawyer or lawyers performing the service and the skill,
expertise, or efficiency of effort reflected in the actual
providing of such services; and
(8) Whether the fee is fixed or contingent....
neither party has developed any argument based upon these
the lodestar is determined, the court considers whether there
should be an adjustment for results obtained. Norman v.
The Housing Authority of the City of Montgomery, supra.
836 F.2d at 1302. However, there is a strong presumption that
the lodestar is a reasonable fee. Bivins v. Wrap It Up.
Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
must determine a reasonable hourly rate for the services of
the prevailing party's attorney. In Florida
Patient's Compensation Fund v. Rowe, supra.
472 So.2d at 1150-51, the Florida Supreme Court stated:
In establishing this hourly rate, the court should assume the
fee will be paid irrespective of the result, and take into
account all of the [Rule 4-1] factors except the "time
and labor required, " the "novelty and difficulty
of the question involved, " the "results obtained,
" and "[w]hether the fee is fixed or
contingent." The party who seeks the fees carries the
burden of establishing the prevailing "market rate,
" i.e., the rate charged in that community by
lawyers of reasonably comparable skill, experience and
reputation, for similar services.
"[t]he court... is itself an expert on the question [of
attorneys' fees] and may consider its own knowledge and
experience concerning reasonable and proper fees."
Norman v. The Housing Authority of the City of
Montgomery, supra. 836 F.2d at 1303.
plaintiff was represented by two law firms, Shutts &
Bowen, LLP, located in Tampa, Florida, and Leeuw Oberlies
& Campbell, P.C., located in Indianapolis, Indiana.
Timothy D. Woodward ("Woodward") from Shutts &
Bowen, LLP, was lead counsel in the matter. Plaintiffs
counsel have submitted their billing records (see Doc. 135,
Ex. 1.1, pp. 47-249; Ex. 1.2, pp. 250-295). The Tampa law
firm requests $1, 043, 318.50 in attorneys'
Indiana Firm requests $49, 522.50 in attorneys' fees. The
plaintiff, therefore, seeks a total amount of $ 1, 092,
841.00 in attorneys' fees. In support of the requested
hourly rates, counsel have included affidavits from Woodward
and Gene R. Leeuw ("Leeuw") from the law firm of
Leeuw Oberlies & Campbell, P.C. (Doc. 135, Ex. 1; Doc.
135-1, Ex. 2). Plaintiffs counsel has also submitted an
expert report and affidavit along with two supplemental
expert reports and affidavits from expert David M. Caldevilla
("Caldevilla"), in support of the requested fees
(Doc. 135-1, Exs. 3.1, 3.2, 3.3).
counter the requested fees, the defendant submitted an expert
affidavit from Kenneth G. Turkel ("Turkel")
regarding the reasonableness of the requested fees (Doc.
142). Notably, the defendant's expert, Turkel states that
"[b]ased upon [his] review and analysis, the hourly
rates charged by the attorneys and paralegal[s] were
reasonable" (id-, p. 8). In the defendant's most
recent memorandum in opposition to the plaintiffs motion for
fees, the defendant does not argue that the hourly rates
charged by plaintiffs counsel, or the paralegals, are
unreasonable (see Doc. 138). Consequently, there is
no dispute regarding the requested hourly rates.
brief comments regarding the requested hourly rates are
appropriate. Plaintiffs counsel set forth the requested
hourly rates and fees by dividing the case into four
Therefore, the same will be done here when discussing the
hourly rates in connection with the reasonableness of the
billed hours. It is noted that, as the case progressed, some
attorneys' hourly rates were increased. However, as
indicated, there has been no objection to the requested
is lead counsel in this matter and developed the plaintiffs
case plan and made all major strategy decisions (Doc. 135, p.
5). Woodward requests fees based on hourly rates of $365,
$385, and $400 (id-, pp. 8, 11, 12).
absence of any objection, I am recommending that hourly rates
for Woodward of $365, $385, and $400 are reasonable.
to the Florida Bar in 1989, Lonnie L. Simpson
("Simpson") is a partner with Shutts and Bowen LLP,
and has over twenty-five years of legal experience (Doc. 135,
Ex., 1, p. 33, ¶26; Doc. 135-1, Ex. 1.4, p. 5). Simpson
requests hourly rates of $136.37, $430, $450, and $495 (Doc.
135, p. 9). Woodward explains in his affidavit that
Simpson's billing rate began at $495, however, when
Simpson's involvement in the case increased, he adjusted
his rate to $430 per hour (Doc. 135, Ex. 1, p. 33, ¶27).
Woodward states that Simpson's current rate remains at
$430 per hour (id.). Because there was no objection
to Simpson's rates, I recommend that the four requested
rates be used.
Y. Labrit ("Labrit") is a partner at Shutts &
Bowen LLP since 2003, and has thirty years of legal
experience (Doc. 135-1, Ex. 1.4, pp. 13, 14). Labrit requests
an hourly rate of $525 for her work done in this case (Doc.
135, p. 11). In this case, Labrit performed work during Phase
2 and Phase 4 with the majority of her work relating to
appeal work in Phase 4 (id., pp. 11, 16). Although
on the high side, because the hourly rate has not been
objected to, I am recommending an hourly rate of $525 for
Labrit based on her years of practice and experience.
A. Taylor ("Taylor") is an associate with Shutts
and Bowen LLP, and was admitted to the Florida Bar in 2011
(Doc. 135, Ex. 1, p. 32, ¶23). Taylor requests hourly
rates of $23 5 for 2014, $250 for 2015, and $270 for 2016 and
continuing thereafter (id.).
recommending for Taylor the unchallenged hourly rates of $235
for 2014, $250 for 2015, and $270 for 2016.
Shenhav ("Shenhav") is an associate with
Shutts& Bowen LLP, and is admitted to the Florida Bar
(Doc. 135-1, Ex. 1.4, p. 10). Shenhav requests hourly rates
of $260, and $270 (Doc. 135, p. 8; Ex. 1, p. 34, ¶29).
Woodward explains that Shenhav's beginning hourly rate
was $260, however in 2015 her rate was increased to $275
(Doc. 135, Ex. 1, p. 34, ¶29). Woodward indicates that
when he had Shenhav perform work on this case in 2015, and
then in 2016 regarding certain tasks she completed on behalf
of the plaintiff, he reduced her rate to $270 (id-)- Due to
lack of objection, I am recommending reasonable hourly rates
of $260 and $270 for Shenhav.
with respect to Shenhav's fee, regarding the hours in
which she has charged $275, they should be set at $270.
According to Woodward, he had adjusted her standard fee from
$275 to $270 for work done for the plaintiff (Doc. 135, Ex.
1, p. 34, ¶29). However, that downward adjustment is not
reflected in the charts submitted by the plaintiff (see Doc.
135, p. 8). Therefore, I have adjusted her fee to $270 for
all time charged at the $275 rate. In any event, hourly rates
of $260 and $270 are a reasonable hourly fee for an associate
in this locale.
paralegals is recoverable "only to the extent that the
paralegal performs work traditionally done by an
attorney." Jean v. Nelson, 863 F.2d 759, 778
(11lh Cir. 19881 See TCC Air Services. Inc. v.
Schelsinger, 2009 WL 565516 at *5 (S.D. Fla. 2009)
(unpub. dec.) (identifying paralegal tasks such as
researching, shepardizing caselaw, digesting and indexing
depositions and interviewing clients). Costs associated with
clerical tasks are overhead expenses which are not
compensable in the attorneys' fees award. Allen v.
United States Steel Corp., 665 F.2d 689, 697
(5th Cir. 1982).
regard, Woodward represents that he used experienced
"paralegals to organize, manage and generally make
effective use of the substantial quantity of documents
collected and produced in discovery" (Doc. 135, Ex. 1,
p. 34, ¶30). Woodward explains that "[his] work is
typically document-intensive which requires significant
paralegal support, database creation and maintenance to
manage the large volumes of data records (id.).
Woodward states he used the paralegals that bill at lesser
rates in order to analyze efficiently and identify key
records (id-)- Woodward explains that he set the
paralegals' rates based on the "subject-matter
experience, time in practice and the complexity of the tasks
[he] anticipated [they] would perform" (see, e.g.,
id., p. 35). Therefore, the plaintiff may recover
the fees that have been charged by the paralegals. See
Jean v. Nelson, supra. 863 F.2d at 778
(work by paralegals is recoverable "only to the extent
that the paralegal performs work traditionally done by an
avers that Evelyn Ward ("Ward") has over thirty
years of paralegal litigation experience (Doc. 135, Ex. 1, p.
34, ¶30). Ward has a Bachelor of Arts degree, a Masters
Degree in Library and Information Sciences, and a paralegal
certificate (id., pp. 34-35). Ward explains that the
initial billing rate for Ward was $210 per hour, but then it
was later increased to $225 per hour (id., P- 35).
attests that Katherine A. Kobos ("Kobos") is a
Florida registered paralegal with more than 34 years of
experience pertaining to commercial and construction
litigation matters (Doc. 135, Ex. 1, p. 35, ¶30).
Woodward states that he initially set her billing rate at
$200 per hour, but then later increased it to $225
Florida registered paralegal Tina M. Rosenberger
("Rosenberger") has more than 16 years of
experience in appellate practice and complex litigation
matters (Doc. 135, Ex. 1, p. 35, ¶30). Woodward set
Rosenberger's billing rate at $210 per hour, but then
later adjusted it to $225 per hour (id.)
C. Gau ("Gau") is a litigation paralegal for Shutts
and Bowen LLP with fifteen years of experience in commercial
litigation and construction matters (Doc. 135, Ex. 1, p. 35,