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Diamond Resorts U.S. Collection Development, LLC v. Johnson

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

June 12, 2019

DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC and DIAMOND RESORTS INTERNATIONAL, INC., Petitioners,
v.
NANCY A. JOHNSON, Respondent.

          REPORT AND RECOMMENDATION

          Thomas B. Smith United States Magistrate Judge.

         Pending before the Court is Petitioners' Motion for Attorneys' Fees (Doc 29). Upon due consideration, I respectfully recommend that the motion be granted in part.

         I. Background

         Petitioners Diamond Resorts U.S. Collection Development, LLC and Diamond Resorts International, Inc. filed this case to confirm an arbitration award they recovered against Respondent Nancy A. Johnson (Doc. 1). After briefing, the Court directed the entry of judgment for Petitioners and the Clerk entered judgment on April 17, 2019 (Docs. 25-26). Respondent has not appealed the judgment. One of the documents upon which Petitioners asserted their claims against Respondent was a promissory note which provides for the recovery of Petitioners' attorney's fees (Doc. 29-1 at 2). When the Court confirmed the arbitration award it also gave Petitioners leave to file a motion for their attorney's fees and costs related to this proceeding (Doc. 25 at 6).

         Now, Petitioners seek an award of $27, 454.50 in fees (after reductions), based upon 88.4 billable hours to obtain confirmation of the arbitration award (Doc. 29 at 4). Respondent has not filed a response to the motion and the time to do so has expired.

         The fee application includes the work of five partners/shareholders, six associates, and one paralegal, itemized as follows:

Category Hours Rate Total
Partners/Shareholders
Richard W. Epstein 9.1 $450-610 $4,303.00
Haas A. Hatic 2.5 $400 $1,000.00
John H. Pelzer 7.1 $765 $5,431.50
Jeffrey A. Backman 0.6 $550 $330.00
Associates
Meredith H. Leonard 23 $290-440 $7,302.00
Phillip A. Silvestri 19.7 $290 $5,713.00
Mitchell Levine 6.6 $275 $1,815.00
Nima Tahmassebi 8.2 $250-275 $2,102.50
Roy Taub 0.3 $475 $142.50
Eyal Sharon 10.2 $250 $2,550.00
Paralegal
Sara Jurecki 1.1 $175 $192.50
Total

$30,505.00
Less 10% discount

$3,050.50
Net Total

$27,454.50

(Id., at 5).

         II. Discussion

         Because Respondent has not responded to the motion the Court may treat it as unopposed. Foster v. The Coca-Cola Co., No. 6:14-cv-2102-Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla. June 2, 2015); Jones v. Bank of Am., N.A., 564 Fed.Appx. 432, 434 (11th Cir. 2014)[1] (citing Kramer v. Gwinnett Cty., Ga., 306 F.Supp.2d 1219, 1221 (N.D.Ga. 2004); Daisy, Inc. v. Polio Operations, Inc., No. 2:14-cv-564-FtM-38CM, 2015 WL 2342951, at *1 (M.D. Fla. May 14, 2015) (when defendant did not respond court could consider motion to compel unopposed); Brown v. Platinum Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012 WL 333808, at *1 (M.D. Fla. Feb. 1, 2012) (after party failed to respond, court treated motion for summary judgment as unopposed). However, I recommend the Court analyze the merits of the motion.

         The Court employs the lodestar approach as the first step in calculating a reasonable fee for a lawyer's services. Hensley v. Eckerhart, 461 U.S. 424 (1983); Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). “[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; Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam).

         “[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, 109 S.Ct. 939, 489 U.S. 87, 103 L.Ed.2d 67 (1989)).

         “The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. A party may satisfy this burden “by producing either direct evidence of rates charged under similar circumstances, or opinion evidence of reasonable rates.” Chemische Fabrik Budenheim KG v. Bavaria Corp. Intern., 6:08-CV-1182-ORL22DAB, 2010 WL 98991, at *4 (M.D. Fla. Jan. 6, 2010) (citing Norman, 836 F.2d at 1299). The fee applicant should “supply[] the court with specific and detailed evidence from which the court can determine the reasonable hourly rate.” Norman, 836 F.2d at 1303. Evidence of prevailing rates for comparable services can be adduced either through direct evidence of charges by lawyers under similar circumstances or by opinion. Id. at 1299. “[T]he best information available to the court is usually a range of fees set by the market place....” Id. at 1301.

         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 fee applicant has the burden to adequately document the hours expended on the matter. Id. at 437. “[F]ee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Norman, 836 F.2d at 1303. “[E]xcessive, redundant or otherwise unnecessary hours should be excluded from the amount claimed.” ...


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