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Doe v. Jenner

United States District Court, M.D. Florida, Fort Myers Division

August 28, 2019

JANE DOE, Plaintiff,
v.
TRAVIS JOHN JENNER, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         On July 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.

         A 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).

         Attorney 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.

         A. Hourly Rate

         “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.” 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. Id.

         Beam is 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.

         Plaintiff 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.

         That 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:

Attorney

Requested Rate

Reduced Rate

Beam

$700

$500

Marsh

$800

$600

Shipp

$400

$350

         B. Number of Hours

         The 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)).

         1. ...


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