United States District Court, M.D. Florida, Fort Myers Division
MIRANDO UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon review of non-party
mediator Denise H. Kennedy's Motion to Compel filed on
April 13, 2018. Doc. 52. Ms. Kennedy seeks an Order
compelling Defendants Pystmo, LLC and Mark Taylor-or
alternatively, Defendants' counsel-to pay the fee for her
mediation services. Id. For the reasons stated
herein, the motion will be granted.
13, 2017, the Court entered a Case Management and Scheduling
Order (“CMSO”) requiring the parties to mediate
on or before December 1, 2017. Doc. 34. The parties agreed on
a mediator, Denise H. Kennedy, Esq., from the Court's
approved list of mediators. Id. On November 8, 2017,
Plaintiff filed an Unopposed Motion for Extension of
Mediation Deadline. Doc. 35. The Court granted the motion and
extended the deadline to mediate to January 26, 2018. Doc.
36. Mediation was held on January 16, 2018, and the parties
agreed to settle the case. Doc. 39.
agreed to pay for the entire cost of mediation, totaling $1,
225.00. Doc 52 at 1. Ms. Kennedy attempted to contact
Defendants' attorney to request payment on multiple
occasions via phone and received a voice message that the
inbox was full. Id. Ms. Kennedy also attempted to
reach Defendants' attorney via email, fax and mail to no
avail. Id. at 1-2. On June 20, 2018, the undersigned
directed Defendants to respond to Ms. Kennedy's Motion to
Compel on or before June 27, 2018. Doc. 53. As of this date,
despite the Court's Order, Defendants have failed to
Kennedy specified in the mediation confirmation letter that
her fees were $350.00 per hour for two-party mediation and
$125.00 per hour per party for multiparty mediation, and the
fees would be split equally between the parties, unless
otherwise agreed upon. Doc. 52-2. She also stated payment was
to be made within 30 days of receipt of the mediation
CMSO in this case states in relevant part:
The mediator shall be compensated as per M.D. Fla. R.
9.02(f), or at a rate stipulated by the parties in advance of
mediation and borne equally by the parties. Upon motion of
the prevailing party, the party's share may be taxed as
costs in this action.
Doc. 34 at 7-8. Local Rule 9.02(f) states:
Absent agreement of the parties and the mediator, mediators
shall be compensated at a reasonable hourly rate provided by
order of the Court after consideration of the amount in
controversy, the nature of the dispute, the resources of the
parties, the prevailing market rate for mediators in the
applicable market, the skill and experience of the mediator,
and other pertinent factors. Unless altered by order of the
Court, the cost of the mediator's services shall be borne
equally by the parties to the mediation conference.
M.D. Fla. R. 9.02(f).
the language of the CMSO, the Local Rules, and the mediation
confirmation letter sent by Ms. Kennedy, Defendants were
required to pay, at minimum, their half of the invoice
totaling $612.50. See Docs. 34 at 7-8, 52-2; M.D.
Fla. R. 9.02(f). However, Ms. Kennedy represents Defendants
agreed to pay the mediator's fee in full. Doc. 52 at 1.
Further, Ms. Kennedy provided the Court with multiple
exhibits in which she requested the full invoice amount of
$1, 225.00 from Defendants; Defendants do not appear to have
contested this amount, and they failed to respond to the
motion. See Docs. 52-1, 52-2, 52-3.
in this district has granted a mediator's motion to
enforce payment of mediator fees. See Jackson v. Hobart
Enters., Inc., No. 8:06-cv-1759-T-30MAP, 2008 WL 2439345
(M.D. Fla. June 13, 2008). In Jackson, the defendant
was sent an invoice that represented his share of the
mediation fees and failed to pay his share. Id. at
1. After failing to receive payment, the court-appointed
mediator filed a motion to enforce payment of mediator's
fees to which the defendant failed to respond. Id.
Despite a court order requiring the defendant to respond to
the mediator's motion, the defendant remained
unresponsive. Id. The court thus granted the
mediator's motion to enforce payment of the
mediator's fees. Id.
in the Southern District of Florida similarly granted a
motion to compel payment of mediator fees. Edge Sys. LLC
v. Aguila, No. 14-24517-CIV-MOORE/MCALILEY, 2016 WL
4063830 (S.D. Fla. Mar. 31, 2016). In Edge Systems,
the court relied on the language in an order directing the
parties to mediate and a mediator designation notice issued
by the clerk, both of which explained the parties'
liability regarding payment for the mediator's services.
Id. at 1. Further, when the defendant stated the
mediation lasted forty-five minutes rather than two hours as
indicated by the mediator, the court relied on the
mediator's invoice because defendant failed to offer a
reason to disbelieve the mediator's statement.
similar to Jackson and Edge Systems,
Defendants have failed to provide any reason to challenge Ms.
Kennedy's assertion that Defendants are required to pay
the invoiced amount. Defendants did not pay the balance
within thirty days of receipt of the invoice, and they have
been unresponsive to Ms. Kennedy and this Court. Further,
because Defendants did not respond to the present motion or
the Court's Order, the Court presumes the motion ...