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Apple Glen Investors, L.P. v. Express Scripts, Inc.

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

May 25, 2018

APPLE GLEN INVESTORS, L.P., Plaintiff,
v.
EXPRESS SCRIPTS, INC., Defendant.

          REPORT AND RECOMMENDATION

          THOMAS G. WILSON, UNITED STATES MAGISTRATE JUDGE.

         In this 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).[1] 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).[2] 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 appellate fees.

         I.

         In May 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).

         As 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).

         Thereafter, 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).

         On July 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).

         On 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. 138).[3] The 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).

         II.

         As 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.

         Both 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).

         Florida has adopted the federal lodestar approach as the foundation for setting reasonable fee awards.[4] 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 1150-51.

         In 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 nature;
(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....

         Notably, neither party has developed any argument based upon these factors.

         After 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).

         A. Hourly Rates

         A court 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.

         Further, "[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.

         The 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' fees.[5]The 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).

         To 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.

         Nevertheless, 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 phases.[6] 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 hourly rates.

         Timothy D. Woodward

         Woodward 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).

         In the absence of any objection, I am recommending that hourly rates for Woodward of $365, $385, and $400 are reasonable.

         Lonnie L. Simpson

         Admitted 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.

         Suzanne Y. Labrit

         Suzanne 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.

         Lauren A. Taylor

         Lauren 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.).

         I am recommending for Taylor the unchallenged hourly rates of $235 for 2014, $250 for 2015, and $270 for 2016.

         Ella A. Shenhav

         Ella A. 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.

         Furthermore, 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

         Work by 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).

         In this 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 attorney").

         Evelyn A. Ward

         Woodward 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).

         Katherine A. Kobos

         Woodward 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 (id.).

         Tina M. Rosenberger

         A 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.)

         Kendra C. Gau

         Kendra 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, ¶30). ...


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