United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
MOTION: DEFENDANT'S MOTION FOR ATTORNEYS'
FEES AND TAXABLE COSTS WITH INCORPORATED MEMORANDUM OF LAW
(Doc. No. 115)
FILED: February 5, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED in part and
DENIED in part.
March 31, 2017, Plaintiff filed a Complaint against
Defendants for violations of the Lanham Act, trademark
infringement under common law, copyright infringement, and
violation of Florida's Deceptive and Unfair Trade
Practices Act (“FDUTPA”). Doc. No. 1. On July 18,
2017, Plaintiff filed an Amended Complaint with causes of
action for violations of the Lanham Act, trademark
infringement under common law, and violation of FDUTPA. Doc.
No. 38. On January 18, 2019, the District Court entered a
final judgment in favor of Defendants on all counts. Doc. No.
108 at 15. In that order, the District Court found “The
lack of evidence as to Albert's involvement in business
dealings between FloGrown and Dixie, especially the complete
dearth of evidence to show that Albert ever ordered FloGrown
goods, personally sold FloGrown goods, or affixed the
FLOGROWN Marks to apparel or other items, is glaring and
irrefutable.” Doc. No. 108 at 15. As a result, the
Court found that Albert Torgeman (“Torgeman”) was
entitled to attorney's fees, holding:
After review of the testimony and evidence in this case, and
noting the fact that FloGrown persisted with federal
litigation against Albert for almost two (2) years, the Court
finds that Albert is entitled to an award of attorneys'
fees. An award of attorneys' fees to Albert as a
prevailing defendant is justified because FloGrown
“brought an obviously weak Lanham Act claim [against
Albert] and the evidence shows that [FloGrown] acted in bad
faith and with an improper motive.” Welding Servs.,
Inc. v. Forman, 301 Fed.Appx. 862, 862-63 (11th Cir.
2008) (“In an exceptional trademark infringement case .
. . a court may award reasonable attorney's fees to the
prevailing party.”); see Harley-Davidson Motor Co.
v. Iron Eagle of Cent. Fla., Inc., 973 F.Supp. 1421,
1426 (M.D. Fla. 1997) (citing Safeway Stores, Inc. v.
Safeway Discount Drugs, 675 F.2d 1160, 1166 (11th Cir.
1982)) (“The Eleventh Circuit has interpreted [15
U.S.C. § 1117] to allow fees to a prevailing party where
there is evidence of fraud or bad faith.”).
Doc. No. 108 at 12. The order provided that all parties
“shall” be responsible for their own
attorneys' fees and costs “[w]ith the exception of
Defendant Albert Torgeman.” Doc. No. 108 at 15.
February 5, 2019, Torgeman filed a Motion for Attorneys'
Fees and Taxable Costs (the “Motion”). Doc. No.
115. Torgeman seeks $238, 636 in attorney's fees,
representing the full cost of representation for all three
Defendants. Doc. No. 115 at 1, 2. Torgeman argues that the
claims against each Defendant were inextricably intertwined
such that there is no way to separate attorney's fees
attributable solely to Torgeman from those attributable to
Defendants Asher Torgeman or Dixie Heritage, LLC. Doc. No.
115 at 2. Torgeman also seeks $7, 379.92 in recoverable costs
pursuant to 28 U.S.C. § 1920. Doc. No. 115 at 2.
Torgeman filed the Declaration of Coleman Watson, who is
Defendants' lead counsel, itemized billing records, a
copy of the retainer agreement, and the affidavit of Amber
Davis, Esq., as an expert on attorney's fees. Doc. Nos.
116, 117. Attorney Davis, attesting to the reasonable hourly
rates and the reasonable number of hours expended, relied on
the American Intellectual Property Law Association's
(“AIPLA”) 2017 Report of the Economic Survey
(“2017 APILA Report”), and suggested an
appropriate range for a fee award began at $275, 000 on the
low end, which exceeds Torgeman's attorney's fees
request. Doc. No. 117 at 6.
February 19, 2019, Plaintiff filed a Response to
Defendant's Motion for Attorneys' Fees and Taxable
Costs (the “Response”). Doc. No. 125. Plaintiff
first argues that the Court should reconsider Torgeman's
entitlement to attorney's fees under the Lanham Act. Doc.
No. 125 at 2-11. Plaintiff then argues that it should only be
responsible for Torgeman's share of the attorney's
fees for Defendants' common defense. Doc. No. 125 at
11-15. Plaintiff argues that attorneys Leitner and
Montequin's hourly rates are excessive, relying on data
from the 2017 AIPLA Report and their lack of intellectual
property experience, and should only be $285.00 per hour.
Doc. No. 125 at 16. Plaintiff also suggests, based on the
2017 AIPLA Report, that the appropriate range of
attorney's fees for the entire litigation should be $123,
000 to “some amount less than” $238, 000. Doc.
No. 125 at 21. Finally, Plaintiff argues that the other
Defendants are liable for their own costs, and that
Toregeman's requested legal fees are excessive and
contain serious mathematical errors. Doc. No. 125 at 15-21.
March 11, 2019, Torgeman filed a Reply. Doc. No. 130.
Torgeman argues that Plaintiff is improperly trying to
reargue the merits of entitlement and failed to do so via a
proper motion. Doc. No. 130. Torgeman also concedes that
there is a scrivener's error in the table in the Motion.
Doc. No. 130 at 2. Torgeman explains that the total hours in
the billing records attached to the Motion are correct, but
somehow the numbers in the table included in the Motion for
the number of hours are incorrect even though the total
amount of attorney's fees sought is correct. Doc. No. 130
at 2. The Reply reflects Torgeman's counsel expended 722
hours in Defendants' defense and a newly created table
reflects increases in attorneys Watson, Leitner, and
Montequin's hours, and paralegal Marks' hours, as
well as reductions in attorney Carter and paralegal
Lopez's hours. Doc. No. 130 at 2.
Court uses the familiar lodestar method in determining a
reasonable fee award, which is calculated by multiplying the
number of hours reasonably expended by a reasonable hourly
rate. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The Court is “an expert on the question of
attorney's fees and may consider its own knowledge and
experience concerning reasonable and proper fees and may form
an independent judgment either with or without the aid of
witnesses as to value.” Envtl. Mfg. Sols., LLC v.
Peach State Labs, Inc., 274 F.Supp.3d 1298, 1319 (M.D.
Fla. 2017) (quoting Norman v. Housing Auth. of the City
of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)).
party moving for fees has the burden of establishing that the
hourly rates and hours expended are reasonable.
Norman, 836 F.2d at 1303. “In determining what
is a ‘reasonable' hourly rate and what number of
compensable hours is ‘reasonable,' the court is to
consider the 12 factors enumerated in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th
Cir.1974).” Bivins v. Wrap It Up, Inc., 548
F.3d 1348, 1350 (11th Cir. 2008). The Johnson
factors are the following: 1) the time and labor required; 2)
the novelty and difficulty of the questions; 3) the skill
requisite to perform the legal services properly; 4) the
preclusion of other employment by the attorney due to
acceptance of the case; 5) the customary fee in the
community; 6) whether the fee is fixed or contingent; 7) time
limitations imposed by the client or circumstances; 8) the
amount involved and the results obtained; 9) the experience,
reputation, and the ability of the attorney; 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
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.” Duckworth v. Whisenant, 97 F.3d
1393, 1396 (11th Cir. 1996) (quotations and citation
omitted). In determining if the requested rate is reasonable,
the Court may consider the applicable Johnson
factors and may rely on its own knowledge and experience.
Norman, 836 F.2d at 1299-1300, 1303. “The
applicant bears the burden of producing satisfactory evidence
that the requested rate is in line with prevailing market
rates, ” which must be more than just “the
affidavit of the attorney performing the work.”
Id. at 1299 (citations omitted). Instead,
satisfactory evidence generally includes evidence of the
rates charged by lawyers in similar circumstances, or opinion
evidence of reasonable rates. Id.
the hours reasonably expended, counsel must exercise proper
“billing judgment” and exclude hours that are
“excessive, redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 434. In demonstrating that
their hours are reasonable, 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 the district court can assess the time
claimed for each activity.” Norman, 836 F.2d
at 1303. Likewise, a party opposing a fee
application should also submit objections and proof that are
specific and reasonably precise. ACLU of Ga. v.
Barnes, 168 F.3d 423, 428 (11th Cir. 1999). A fee
opponent's failure to explain with specificity the
particular hours he or she views as “excessive,
redundant, or otherwise unnecessary” is generally
fatal. Scelta v. Delicatessen Support Servs., Inc.,
203 F.Supp.2d 1328, 1333 (M.D. Fla. 2002) (citing Gray v.
Lockheed Aeronautical Sys. Co., 125 F.3d 1387 (11th Cir.
1997)). “If fee applicants do not exercise billing
judgment, courts are obligated to do it for them, to cut the
amount of hours for which payment is sought, pruning out
those that are excessive, redundant, or otherwise
unnecessary.” Barnes, 168 F.3d at 428
(quotations omitted). When a court finds the number of hours
billed unreasonably high, a court has two choices: it may
review each entry and deduct the unreasonable time or it may
reduce the number of hours by an across-the-board cut.
Bivins, 548 F.3d at 1350.
“essential goal” for the Court is to “do
rough justice, not to achieve auditing perfection.”
Fox v. Vice, 563 U.S. 826, 838 (2011). The Court
“need not, and indeed should not, become
green-eyeshaded accountants” rather, the Court
“may take into account [its] overall sense of a suit,
and may use estimates in calculating and allocating an
attorney's time.” Id. Where a cause
involves claims with a “common core” of facts,
work performed on related claims that would not otherwise
support an award of attorney's fees may become
compensable. See Hensley, 461 U.S. at 435;
Tillman v. Advanced Pub. Safety, Inc., No.
15-cv-81782, 2018 U.S. Dist. LEXIS 187979, at *12-14 (S.D.
Fla. Nov. 2, 2018) (court fashioned a reasonable award that
addressed defendant's failure to sufficiently separate
out billing, the complex nature of the claims and case, and
the fact defendant was not entitled to fees incurred on
behalf of its co-defendant by reducing the total fee).