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Flogrown, LLC v. Dixie Heritage, LLC

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

July 3, 2019

FLOGROWN, LLC, Plaintiff,
v.
DIXIE HERITAGE, LLC, ASHER TORGEMAN, AND ALBERT TORGEMAN, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion:

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.

         I. BACKGROUND.

         On 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.

         On 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.

         On 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.

         On 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.

         II. APPLICABLE LAW.

         The 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)).

         The 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 717-19.

         “[A] 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.

         As for 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.

         The “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).

         III. ...


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