United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on review of plaintiff's
Motion for Attorney's Fees Pursuant to Rule 54(d) of the
Federal Rules of Civil Procedure and 18 U.S.C. 2255 (Doc.
#30) and Memorandum in Support (Doc. #31) filed on July 16,
2019. Defendant was directed to file a response, however no
response was filed, and the time to respond has expired.
2, 2019, the Court granted summary judgment in favor of
plaintiff and against defendant, and awarded $98, 624 in
damages, plus post-judgment interest. (Doc. #28.) Judgment
(Doc. #29) was entered on the same day. Under 18 U.S.C.
§ 2255, a victim such as plaintiff who “suffers
personal injury” as a result of a violation of 18
U.S.C. § 2252 as in this case, and other statutes,
“may sue in any appropriate United States District
Court and shall recover the actual damages such person
sustains or liquidated damages in the amount of $150, 000,
and the cost of the action, including reasonable
attorney's fees and other litigation costs reasonably
incurred.” 18 U.S.C. § 2255(a). Plaintiff seeks
attorney's fees and costs as the prevailing party in this
matter, and the Court finds that plaintiff is a prevailing
party entitled to statutory attorney's fees, and costs.
reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly
rate. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The party seeking an award of fees should submit
adequate documentation of hours and rates in support, or the
award may be reduced. Id. The burden is on the fee
applicant “to produce satisfactory evidence” that
the rate is in line with those prevailing in the community.
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).
Douglas R. Beam filed an Affidavit in Support (Doc. #31-1)
stating that the attached Exhibits were compiled in the usual
and ordinary course of business. Also attached are attorney
Katie M. Shipp's Declaration (Doc. #31-2), and attorney
James R. Marsh's Declaration (Doc. #31-3) detailing their
individual qualifications and experience, as well as a Time
and Expense Report (Doc. #31-2, Exhibit) detailing the
billable hours for attorneys Shipp and Marsh only. Plaintiff
seeks a total of $32, 042.00 in attorneys' fees and
approximately $735 in costs.
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.” Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
(citations omitted). The prevailing market is Fort Myers,
Florida, and the surrounding counties in the Fort Myers
Division of the Middle District of Florida. Olesen-Frayne
v. Olesen, No. 2:09-CV-49-FTM-29DNF, 2009 WL 3048451, at
*2 (M.D. Fla. Sept. 21, 2009). If a non-local rate is
requested, plaintiff has the burden to establish a lack of
attorneys willing and able to handle similar claims.
a former prosecutor who founded the child sexual abuse
prosecution unit in Brevard County, Florida. Marsh was the
architect of the 2006 and 2018 revisions to 18 U.S.C. §
2255, founded the nationally recognized Children's Law
Center in Washington, D.C., and it was his case before the
United States Supreme Court in 2014 that led to the Amy,
Vicky, and Andy Child Pornography Assistance Act of 2018.
Shipp has spent her entire legal career practicing in the
area of child sex abuse, and has represented victims of child
pornography in both criminal restitution proceedings and
civil cases while at the Marsh Law Firm. (Doc. #31, p. 4;
Doc. #31-1, ¶ 4.) Based on these credentials, Beam seeks
an hourly rate of $700 an hour, Marsh seeks an hourly rate of
$800 an hour, and Shipp seeks a rate of $400 an hour.
cites to a recent survey by the Florida Bar Association that
found that rates as high as $400 per hour are common with 16%
of attorneys in the combined Central and Southwest regions of
Florida, which include counties in Tampa and Orlando.
Plaintiff did not provide anything to indicate what
percentage of this statistic falls in the Fort Myers area,
and the Tampa and Orlando Divisions generally have higher
hourly rates. The Court puts little stock in the Survey in
light of the much lower rates common to the Fort Myers area.
being said, the Court finds that a higher than normal hourly
rate is appropriate in this case. Counsel have unique and
specialized credentials not otherwise available in Fort
Myers, and the case involved a minor victim of child
pornography who might otherwise never receive compensation
without their advocacy. The Court will allow higher, albeit
slightly reduced, hourly rates as follows:
Number of Hours
Court is obligated to eliminate excessive, redundant, or
unnecessary hours in computing a reasonable number of hours
expended. Norman, at 1301 (citing Hensley,
461 U.S. at 434). “There is nothing inherently
unreasonable about a client having multiple attorneys, and
they may all be compensated if they are not unreasonably
doing the same work and are being compensated for the
distinct contribution of each lawyer.” Norman,
at 1302. “It is appropriate to distinguish between
legal work, in the strict sense, and investigation, clerical
work, compilation of facts and statistics and other work
which can often be accomplished by non-lawyers but which a
lawyer may do because he has no other help available.”
Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10
(1989) (quoting Johnson v. Georgia Highway Exp.,
Inc., 488 F.2d 714, 717 (5th Cir. 1974)).