Higgins v. Healthsouth Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA,

ex rel. MELISSA HIGGINS,

Plaintiff,

v. Case No. 8:14-cv-2769-T-33AEP

HEALTHSOUTH CORPORATION n/k/a

ENCOMPASS HEALTH CORPORATION,

Defendant.

/

ORDER

Plaintiff Melissa Higgins (“Relator”) brought this qui tam action, as Relator, against

Defendant HealthSouth Corporation n/k/a Encompass Health Corporation’s (“Encompass

Health”) for violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. (Docs. 1 &

2). Currently before the Court are Relator’s request for an award of attorneys’ fees, expenses,

and costs pursuant to 31 U.S.C. § 3730 and Encompass Health’s response in opposition thereto

(Docs. 89, 90, 107, 116, 124, 138, 141). Essentially, Relator seeks an award under the FCA of

(1) attorneys’ fees in the amount of $1,298,227 and (2) expenses and costs in the amount of

$31,739.73. Upon consideration, Relator’s request for attorneys’ fees, expenses, and costs

(Docs. 89 & 138) is granted in part and denied in part.2

I. Background

Relator initiated this action in the Northern District of Texas against Encompass Health,

alleging violations of the FCA relating to allegedly excessive fees and fraudulent billing by

2 Originally, the district judge referred the request for attorneys’ fees, costs, and expenses for

issuance of a Report and Recommendation, including any related hearings, motions, and

deadlines (Doc. 92). During the hearing on the initial fee application, the parties consented to

Encompass Health to Medicare and other public and private health insurers (Docs. 1 & 2).3

According to Relator, she worked for Encompass Health as Director of Therapy Operations at

a facility in Arlington, Texas, during most of the relevant period (Doc. 2, at ¶¶24, 36, 133-36,

165-68). After noticing potential fraudulent billing practices, Relator alleged that she raised

concerns starting around 2008 and was subsequently forced to resign (Doc. 2, at ¶¶24-28, 140-

50, 174-75). Following her alleged forced resignation, Relator filed the instant qui tam action

against Encompass Health, raising the following claims under the FCA: (1) presentation of false

claims; (2) making or using a false record of statement to cause a claim to be made; (3) making

or using a false record of statement to avoid an obligation to refund; (4) conspiracy; and (5)

retaliation (Doc. 2, at ¶¶ 161-75).

Initially, the Government declined to intervene in this action but indicated that its efforts

to resolve the action would continue with all parties (Doc. 73). Subsequently, the Government

sought to intervene for purposes of settlement after reaching a settlement in this action and two

related actions (Doc. 81), which the Court granted (Doc. 83). Thereafter, the parties submitted

a Joint Stipulation of Dismissal (Doc. 86), seeking to dismiss the action with prejudice as to

Relator and the Government, except that Relator’s claims for attorneys’ fees and costs pursuant

to 31 U.S.C. § 3730(d) and for retaliation pursuant to 31 U.S.C. § 3730(h) were not dismissed.

Instead, the parties requested that the Court retain jurisdiction to resolve the reserved claims

under 31 U.S.C. § 3730(d) and (h). Upon consideration, the Court dismissed Relator’s qui tam

claims with prejudice but retained jurisdiction to resolve Relator’s claim for retaliation pursuant

to 31 U.S.C. § 3730(h), as well as any claims for attorneys’ fees and costs pursuant to 31 U.S.C.

§ 3730(d) (Doc. 87).

3 Upon motion by the Government to transfer or consolidate, the Northern District of Texas

Relator then filed her First Amended Complaint, setting forth claims for retaliation

under 31 U.S.C. § 3730(h) and for attorneys’ fees, expenses, and costs under 31 U.S.C. §

3730(d) and (h) (Doc. 88). The next day, Relator moved for an award of attorneys’ fees,

expenses, and costs pursuant to 31 U.S.C. § 3730(d) (Docs. 89 & 90). Specifically, Relator

sought attorneys’ fees in the amount of $1,192,726.50 and expenses in the amount of

$27,702.77 (Doc. 89, at 9). Encompass Health responded in opposition, arguing that each law

firm representing Relator failed to produce satisfactory evidence in support of the requested

rates and that the requested rates were excessive (Doc. 107). With respect to the hours

expended, Encompass Health argued that the hours were excessive, unreasonable, and either

did not relate to or did not advance this litigation. Finally, as to the requested costs and

expenses, Encompass Health asserted that Relator failed to sufficiently support the request and

that the costs were excessive. In reply, Relator further argued the reasonableness of the

requested rates, hours expended, costs, and expenses and, in addition, requested the production

of Encompass Health’s billing invoices (Doc. 116).

During the pendency of the instant motion, Encompass Health moved to dismiss the

First Amended Complaint (Doc. 104). After consideration, the district judge granted

Encompass Health’s Motion to Dismiss, dismissed the First Amended Complaint in its entirety,

and closed the case (Doc. 123). Notwithstanding, the district judge retained jurisdiction to rule

on Relator’s request for attorneys’ fees, costs, and expenses and additionally directed Relator

to supplement the request to explain what portion of the fees, if any, were incurred in pursuing

her retaliation claim. To that end, Relator submitted her supplemental brief detailing the hours

expended in pursuing her retaliation claim and identifying reductions made for such hours (Doc.

124).

Subsequently, the undersigned conducted a hearing at which the parties appeared and

presented oral argument on the initial application for attorneys’ fees, costs, and expenses.

During the hearing, the parties indicated that they reached a stipulation as to the hourly rates

for each attorney billing in this action and received an opportunity to submit supplemental

briefs. Following the hearing, the parties submitted their supplemental briefs (Doc. 138 & 141).

Relator now seeks attorneys’ fees in the amount of $1,298,227 and costs and expenses in the

amount of $31,739.73 (Doc. 138). Encompass Health reiterates its prior arguments and

contends that the supplemental request is similarly unreasonable, especially with respect to time

spent on issues unrelated to the advancement of the FCA claims and travel time and expenses

for S&M’s out-of-town counsel (Doc. 141).

II. Discussion

Under 31 U.S.C. § 3730(d), a prevailing qui tam plaintiff may receive an award of

reasonable expenses which the court finds to have been necessarily incurred, plus reasonable

attorneys’ fees and costs. 31 U.S.C. § 3730(d)(1) & (2). Such fees, costs, and expenses are

available under 31 U.S.C. § 3730(d)(1) where the Government intervenes and under 31 U.S.C.

§ 3730(d)(2) where the Government declines to intervene. As indicated above, though the

Government initially declined to intervene in this matter (Doc. 73), it subsequently sought to

intervene for purposes of settlement (Doc. 81), which the Court permitted (Doc. 83). For

purposes of this motion, the Government’s intervention does not affect the outcome, as

Encompass Health does not dispute Relator’s entitlement to an award of attorneys’ fees,

expenses, and costs under 31 U.S.C. § 3730(d) in this action (Doc. 107, at 6 n.1) and both

subsections (1) and (2) provide the same relief with respect to fees, expenses, and costs

regardless of the Government’s intervention. Accordingly, under 31 U.S.C. § 3730(d), Relator

is entitled to an award of attorneys’ fees, costs, and expenses.

A. Attorneys’ Fees

In this instance, Relator seeks a total award of $1,298,227 in attorneys’ fees. Namely,

Relator seeks an award of attorneys’ fees in the amount of $1,256,339 for work performed by

Stone & Magnanini LLP (“S&M”) and in the amount of $41,888 for work performed by

Kendall Law Group PLLC (“Kendall”) (Doc. 138). To determine a reasonable award of

attorneys’ fees for qui tam actions brought under the FCA, courts apply the lodestar approach.

U.S. v. Patrol Servs., Inc., 202 F. App’x 357, 358-59 (11th Cir. 2006) (per curiam); U.S. ex rel.

Burr v. Blue Cross & Blue Shield of Fla., Inc., 882 F. Supp. 166, 169-70 (M.D. Fla. 1995)

(citations omitted); cf. United States v. Everglades College, Inc., 855 F.3d 1279, 1292-93 (11th

Cir. 2017) (discussing the lodestar analysis in relation to an award of attorneys’ fees under the

FCA). Under the lodestar approach, to calculate a reasonable award of attorneys’ fees, courts

multiply the reasonable hourly rate by the reasonable hours expended. See Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Housing Auth. of City of Montgomery, 836

F.2d 1292, 1299 (11th Cir. 1988). In determining this lodestar figure, a “reasonable hourly

rate” consists of “the prevailing market rate in the relevant legal community for similar services

by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at

1299 (citations omitted). In this context, “market rate” means the hourly rate charged in the

local legal market by an attorney with expertise in the area of law who is willing and able to

take the case, if indeed such an attorney exists. Am. Civil Liberties Union of Ga. v. Barnes, 168

F.3d 423, 437 (11th Cir. 1999). The fee applicant bears the burden of establishing the requested

rates are in line with the prevailing market rates by producing direct evidence of rates charged

in similar circumstances or opinion evidence of reasonable rates. See Norman, 836 F.2d at

1299. At a minimum, satisfactory evidence consists of more than the affidavit of the attorney

performing the work; instead, “satisfactory evidence necessarily must speak to rates actually

billed and paid in similar lawsuits.” Id.

After determining the reasonable hourly rate, courts must then determine the number of

hours reasonably expended on the litigation. In submitting a fee application, counsel must

exercise proper billing judgment and thus exclude any hours that are “excessive, redundant, or

otherwise unnecessary.” Hensley, 461 U.S. at 434; Norman, 836 F.2d at 1301. Accordingly,

counsel may not bill any hours to their adversary which they would not bill to their client.

Hensley, 461 U.S. at 434. Where the time or fees claimed appear expanded or lack

documentation or testimonial support, a court may make a fee award based on its own

experience and knowledge. Norman, 836 F.2d at 1303 (citation omitted).

Importantly, “[c]ourts are not authorized to be generous with the money of others, and

it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is

to see that an adequate amount is awarded.” Barnes, 168 F.3d at 428. When a request for

attorney’s fees is unreasonably high, courts may conduct an hour-by-hour analysis or may

reduce the requested hours with an across-the-board deduction. Bivins v. Wrap it Up Inc., 548

F.3d 1348, 1350 (11th Cir. 2008). In doing so, courts must endeavor to “do rough justice, not

to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).

i. Reasonable Hourly Rates

As noted above, the parties stipulated to the following reasonable hourly rates:

Attorney/Paralegal Hourly Rate

David Stone $720

Robert Magnanini $720

David Harrison $475

Bradford Muller $550

Alex Barnett-Howell $425

Rachel Simon $375

Tara Saybe (Paralegal) $250

Brian Rawson (Paralegal) $190

Jamie Gilmore $500

Dawn Elkhoury (Paralegal) $150

(Doc. 90, at ¶¶23-100; Doc.138, at ¶2). Given the parties’ stipulation, the foregoing hourly

rates will be awarded.

ii. Reasonable Hours Expended

With respect to the hours expended, however, a reduction is warranted for both S&M

and Kendall. Specifically, as articulated by Encompass Health, several of the hours requested

are excessive, unreasonable, vague, and involve block billing.

a. S&M

Significantly, in support of its supplemental fee application, Relator failed to identify

the total hours expended by each S&M attorney performing work in this action, as the billing

records only itemize each time entry without totaling the hours expended in the case by attorney

or in any other useful fashion (Doc. 138, Ex. A). Further, as Encompass Health argues, the

time expended on certain tasks was excessive and unreasonable, including time spent traveling

and redacting documents, and numerous time entries involve block billing, are vague, and

include non-compensable time for administrative tasks and the now-dismissed retaliation claim

(Doc. 107, at 8-16; Doc. 141, at 2-7). Given the voluminous records and the lack of specificity,

the Court cannot adequately engage in an hour-by-hour analysis. Indeed, Relator seeks

compensation for hours completed by 6 different attorneys and two paralegals at S&M over the

course of nine years,4 while failing to provide detailed information to easily identify the total

number of hours expended, and, more importantly, the number of hours expended by each of

the individual attorneys or the paralegals in this action. Given the deficiencies described below,

an across-the-board reduction is appropriate for the attorneys’ fees requested for work

4 S&M voluntarily excluded six other timekeepers who additionally expended hours on this

performed by S&M. See Bivins, 548 F.3d at 1350; see Loranger v. Stierheim, 10 F.3d 776, 783

(11th Cir. 1994) (indicating that, where a fee application is voluminous, an hour-by-hour

analysis of the fee request is not required, as it may prove both impractical and a waste of

judicial resources, and, instead, an across-the-board percentage cut may be applied).

1. Excessive, Unreasonable, and Vague Hours

and Block Billing

Initially, Encompass Health contends that the hours sought for work performed by S&M

are excessive and unreasonable. For example, as Encompass Health highlights, Relator seeks

reimbursement for more than 100 hours of travel time for meetings and approximately 40 hours

for the redaction of documents (Doc. 138, Ex. A; see Doc. 107, at 8-10; Doc. 141, at 2, 4-5).

Notably, the more than 100 hours spent on travel are excessive and unreasonable, as both the

fee application and documentation pertaining to the expenses and costs indicate that the parties

maintained the ability to conduct and access teleconferences. Rather than conducting in-person

meetings requiring excessive travel, the parties instead could have conducted teleconferences.

Similarly, the hours spent on redactions, which S&M often billed at the hourly rates for

attorneys (see, e.g., Doc. 138, Ex. A, at 9, 78, 87), constitutes clerical work that should have

either been omitted or charged at a reduced or paralegal rate, and thus are likewise excessive

and unreasonable. See Am. Charities for Reasonable Fundraising Reg., Inc. v. Pinellas Cty.,

278 F. Supp. 2d 1301, 1315 (M.D. Fla. 2003) (noting that, where it appears that work performed

was of a clerical nature, the charges should be rejected); cf. Jean v. Nelson, 863 F.2d 759, 778

(11ht Cir. 1988) (indicating that paralegal time is recoverable as part of a prevailing party’s

award of attorneys’ fees and costs only to the extent that the paralegal performs work

traditionally done by an attorney) (citation omitted). These and other excessive and

unreasonable charges appear throughout the supplemental fee application (Doc. 138, Ex. A).

Parsing out which charges to exclude on an entry-by-entry basis is neither feasible nor a proper

use of judicial resources in this instance.

Namely, the vast majority of the time entries submitted by S&M consist of vague entries

and block billing, wherein counsel lumps together multiple activities in a single entry with no

indication of how much time counsel spent on each task. See, generally, Zachloul v. Fair Debt

Collections and Outsourcing, Case No. 8:09-CV-128-T-27MAP, 2010 WL 1730789, at *3

(M.D. Fla. Mar. 19, 2010). Indeed, like block billing, vagueness greatly complicates the court’s

analysis of a reasonable fee. A fee application “must sufficiently apprise the court of the

specific services rendered and the time spent on such activity for each time blocked.” Nitram,

Inc. v. Indus. Risk Insurers, 154 F.R.D. 274, 277 (M.D. Fla. 1994). The fee applicant should

set out the general subject matter of the time expenditures with sufficient particularity so that

the district court can assess the time claimed for each activity. Norman, 836 F.2d at 1303.

Where a fee applicant’s documentation proves inadequate, the court may reduce the award

accordingly. Hensley, 461 U.S. at 433. In fact, if a time entry is excessively vague, the court

may reduce or eliminate it. Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1379

(M.D. Fla. 2010) (citation and footnote omitted). Given the excessive, unreasonable, and vague

hours requested and S&M’s use of block billing, an across-the-board reduction is warranted.

2. Hours Unrelated to this Litigation

Encompass Health additionally contends that Relator spent approximately 207.6 hours

on tasks related to the settlement of other relators’ claims and on claims not included in the

settlement, which are not compensable as such hours did not relate to the current litigation.

Relator relies upon U.S. ex rel. Educational Career Development, Inc. v. Central Florida

Regional Workforce Development Board, Inc., wherein the court concluded that “Relator is not

entitled to reimbursement of fees for activities unrelated to the litigation, such as negotiations

with the United States over Relator’s share of the settlement or time spent researching the

viability of such efforts” as such negotiations did not directly involve the defendants or

prosecution of the claims at issue. No. 6:04-CV-93-ORL-19DABC, 2007 WL 1601747, at *5

(M.D. Fla. June 1, 2007) (citing, among other cases, United States ex rel. Taxpayers Against

Fraud v. Gen. Elec., 41 F.3d 1032, 1045 (6th Cir.1994) for the proposition that a defendant is

not liable for fees in a collateral dispute over a relator’s share of a qui tam settlement). The

issue then turns upon whether the time S&M spent negotiating Relator’s share as part of a global

settlement between six related cases is compensable as reasonable time expended and

necessarily incurred to advance the instant action.

Notwithstanding Encompass Health’s arguments to the contrary, the hours expended

regarding the global settlement relate to the current litigation and are compensable.

Significantly, Encompass Health desired a global settlement of all pending actions. According

to Relator, Encompass Health demanded that three of the relators be dismissed with prejudice

for a global settlement to occur (Doc. 116, at 7-8). Relator then endeavored to comply with

Encompass Health’s demands to achieve a global settlement with dismissal of three relators.

Unlike in the case relied upon by Relator, in which the court excluded hours expended in

litigation that solely involved the United States in pursuing a relator’s share of a settlement

amount, Encompass Health requested and pursued a global settlement of all remaining relators’

claims in this action. Such pursuit required S&M to expend time to achieve the global

settlement. In this context, the efforts expended by S&M to pursue the Relator’s share in

connection with the eventual global settlement with Encompass Health and the Government

were necessarily incurred to advance this action, mainly the global settlement with dismissal

of three relators as requested by Encompass Health. Furthermore, as Magnanini acted as lead

counsel in pursuing the global settlement, it stands to reason that the hours expended would

reflect additional work performed in that role. That being said, and as Encompass Health

illustrates (Doc. 107, at 11-15; Doc. 141, at 4), the number of hours spent pursuing the global

settlement appear somewhat inflated and thus require reduction.

Similarly, as Encompass Health argues, a reduction is warranted for fees sought for

post-settlement hours expended drafting correspondence and memos regarding the distribution

and payment of the settlement. Upon completion of the global settlement, any matters

pertaining to correspondence by or between Relator’s counsel and the drafting of memos

regarding the distribution or payment of settlement proceeds do not relate to the instant

litigation between Relator and Encompass Health. Though Encompass Health highlights

several entries illustrative of the post-settlement time entries (Doc. 141, at 4), the time records

do not allow meaningful review of each time entry related to settlement and post-settlement

work performed. Given such deficiency, an across-the-board reduction is warranted.

3. Retaliation

Encompass Health further argues that time spent on Relator’s retaliation claim under 30

U.S.C. § 3730(h) should likewise be excluded. Notably, Encompass Health identifies several

entries in the supplemental fee application for time expended regarding the retaliation claim

(Doc. 141, at 3 n.2-6). Relator argues that an award of such fees is premature as the retaliation

claim remains pending. Though the basis for Relator’s argument is flawed, a reduction of the

hours expended in connection with the pursuit of the retaliation claim nonetheless is warranted.

At the time of the initial application for attorneys’ fees, Relator’s retaliation claim

remained pending before the Court by virtue of the Amended Complaint (Doc. 88), along with

a separate claim for attorneys’ fees under 31 U.S.C. § 3730(d) and under 31 U.S.C. § 3730(h)(2)

stemming from the retaliation claim. Encompass Health then filed its Motion to Dismiss the

Amended Complaint (Doc. 104). Upon consideration, the district judge dismissed, with

prejudice, Relator’s retaliation claim and the claim for attorneys’ fees under 31 U.S.C. §

3730(h)(2) (Doc. 123). In doing so, the district judge indicated that Relator was not entitled to

relief for the claim for attorneys’ fees under 31 U.S.C. § 3730(h)(2), including her costs and

attorneys’ fees incurred in litigating the retaliation claim (Doc. 123, at 18) (emphasis added).

The district judge indicated that such denial did not impact Relator’s request for attorneys’ fees

under 31 U.S.C. § 3730(d) but, rather, directed Relator to submit a supplement to her request

for attorneys’ fees within 10 days, explaining what portion of the requested fees, if any, Relator

incurred in the litigation of her retaliation claim, which were therefore not recoverable (Doc.

123, at 19).

To that end, Relator submitted a supplemental declaration, indicating that Relator

removed 10 hours incurred in drafting the original retaliation claim and an additional 12.3 hours

of time related to the preparation, filing, and service of the Amended Complaint; various

conferences with defense counsel regarding extensions of time to respond to the Amended

Complaint; conferences with co-counsel concerning negotiations with Encompass Health; and

follow-up conversations with Relator, for a total reduction of $13,380 (Doc. 124, at 2; Doc.

138, at 2-3). In addition, in the supplemental application for attorneys’ fees, Relator indicates

that she also removed any time incurred since August 16, 2019 pertaining to Relator’s dismissed

retaliation claim (Doc. 138, at 3). Notwithstanding the district judge’s explicit ruling regarding

the inability of Relator to collect attorneys’ fees for her retaliation claim, and despite Relator’s

supplemental declarations regarding reductions taken pertaining to the retaliation claim, Relator

still seeks reimbursement for hours expended related to the retaliation claim and to the

Amended Complaint (Doc. 138, Ex. A). For instance, between July 3, 2019 and July 17, 2019,

the time records reflect at least 15 entries referencing work performed on the retaliation claim

and the Amended Complaint, for a total of approximately 45 hours (Doc. 138, Ex. A, at 90-91).

As nearly all of the time entries related to the retaliation claim and the Amended

Complaint, along with most of the time entries in general, consist of vague entries and block

billing, a reduction must apply. Given the lack of any basis for meaningful review of which

hours pertain specifically to the retaliation claim and the Amended Complaint, and to all of the

hours claimed by S&M, an across-the-board reduction is appropriate. See U.S. ex rel. Joseph

F. Tommasino, P.A., PhD v. Guida, No 10-cv-4644 (JFB) (AKT), 2017 WL 878587, at *8

(E.D.N.Y. Mar. 6, 2017) (noting, in a case involving a request for attorneys’ fees relating to a

claim under the False Claims Act, that block billing frustrated meaningful review of the

reasonableness of the claimed hours and therefore finding a 10% reduction to the billed hours

appropriate).

4. Reduction

As the foregoing illustrates, a reduction of the hours expended by S&M is warranted.

The fee application, which Relator does not delineate in any particular or useful way, remains

too voluminous and involves too many vague and block-billed time entries, thereby precluding

an hour-by-hour or entry-by-entry reduction. Instead, an across-the-board reduction of 20% for

work performed by S&M is appropriate. The attorneys’ fee award relating to work performed

by S&M is hereby reduced from $1,256,339 to $1,005,071.20. Accordingly, Relator is awarded

$1,005,071.20 in attorneys’ fees for work performed by S&M in this action.

b. Kendall

As to the hours requested by Kendall, reductions are similarly warranted, as a few of

the hours expended are excessive and involve block billing (Doc. 138, Ex. B). Specifically, a

total reduction of 9.4 hours shall apply to the hours expended by Judge Kendall as follows:

Requested Reduced

Amount Amount

9/11/2012 Prep for meeting with AUSA; 8.2 6.0

meeting with client re AUSA

meeting; meeting with AUSA

9/12/2012 Conf. with D. Harrison and

Magnanini re status and strategy 1.2 0.5

1/9/2013 Meeting with co-counsel in 8.5 5.0

preparation for meeting with the

Government in Tampa (including

Travel)

1/10/2013 Meeting in Tampa with the 6.0 3.0

Government (including travel)

Applying the reduction of 9.4 hours at the stipulated hourly rate of $720 equates to a $6,768

reduction in attorneys’ fees for Kendall.5 Accordingly, Relator shall be awarded $35,120 – i.e.,

$41,888 less the $6,768 in reductions – in attorneys’ fees for work performed by Kendall in this

action.

iii. Total Attorneys’ Fee Award

In sum, Relator is awarded attorneys’ fees in the amount of $1,005,071.20 for work

performed by S&M in this action and in the amount of $35,120 for work performed by Kendall

in this action. In total, Relator is awarded attorneys’ fees in the amount of $1,040,191.20.6

5 Since the time entries for Kendall did not involve voluminous records, the Court conducted

an entry-by-entry reduction rather than an across-the-board reduction. If, instead, the Court

conducted an across-the-board reduction, a reduction of 15-20% would be appropriate. Given

that the foregoing reduction is approximately equivalent to an across-the-board reduction of

16%, such reduction is reasonable under these circumstances.

6 In its supplemental brief, Encompass Health argued that Relator pursued excessive,

premature, and unwarranted discovery and an unnecessary motion to compel given the

posture of the case (Doc. 141, at 6). Encompass Health therefore contends that such hours

should be excluded from any fee award. Indeed, the discovery and motion related to the

billing practices of Encompass Health’s counsel as a comparison point for Relator’s request

for attorneys’ fees and to demonstrate the reasonableness of the attorneys’ fees (see Doc.

132). As the discovery was unnecessary and the motion to compel was denied as moot,

especially given the parties’ stipulation as to the hourly rates, a reduction of those hours is

warranted. In applying a 20% across-the-board reduction, the undersigned took the issue into

B. Costs and Expenses

Under 31 U.S.C. § 3730(d), Relator is additionally entitled to an award of reasonable

costs and expenses. Indeed, pursuant to 31 U.S.C. § 3730(d), a relator is entitled to an amount

for reasonable expenses which the court finds to have been necessarily incurred plus

reasonable costs. 31 U.S.C. § 3730(d)(1) & (2) (emphasis added). Courts generally award

only reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their

clients. Guida, 2017 WL 878587, at *11 (citations omitted). In seeking costs and expenses,

the fee applicant bears the burden of adequately documenting and itemizing the requested costs

and expenses. See id. (citations omitted).

Here, Relator requests $31,739.73 in costs and expenses, including travel expenses,

meals, courier service, teleconferencing fees, and electronic research (Doc. 138, Exs. C & D).

Encompass Health argues that Relator’s entries fail to contain the requisite particularity and

specificity to assess what the purported costs and expenses relate to and whether they are

reasonable. Encompass Health argues further that many of the costs appear considerably higher

than normal travel expenses and appear to vary greatly from one another despite S&M’s

frequent travel to the same locations.

Encompass Health’s arguments are well-taken. As a primary example, Relator seeks

reimbursement for expenses related to meals, yet the requested expenses are exorbitant and

patently unreasonable, and Relator offers no basis for awarding the requested expenses. For

example, the following charges are sought as expenses: (1) a January 31, 2013 entry for $290

for “Working Meals”; (2) a July 2, 2014 entry for breakfasts, lunches, and dinners in varying

amounts, including a $42 breakfast, $80 breakfast, $66 lunch, $69 dinner, $173 dinner, and

$206 dinner; (3) a March 31, 2015 entry for a $578 dinner with Relator’s prior counsel described

as “Business Development & Marketing: Meals and Entertainment” and $216 for hotel room

meals; (4) a May 21, 2015 entry for a $555 working dinner with co-counsel; (5) a May 15, 2016

entry for a $496 working dinner; (6) a March 7, 2017 entry for a $233 working dinner with

counsel; (7) an April 1, 2018 entry for a $111 working breakfast with counsel; (8) a November

1, 2018 entry for a $115 working lunch; (9) a March 5, 2019 entry for a $200 working dinner

with counsel; and (10) an April 1, 2019 entry for a $438 dinner meeting with counsel (Doc.

138, Ex. D). Such charges are clearly excessive and do not provide any context to determine

what amount would be reasonable. Furthermore, Relator seeks reimbursement for “Tips” in

amounts totaling $20 or $30 each time (see, e.g., Doc. 138, Ex. D, at 4 & 8), but Relator points

to no authority awarding such expenses. Moreover, as Encompass Health contends, the travel

expenses for airfare, hotels, parking, and other miscellaneous expenses vary throughout the

records and provide no specificity as to what those expenses relate to, such that a determination

as to whether they are reasonable proves difficult. Relator likewise blocks together several

expenses into one charge, such as travel, mileage, and parking, thereby compounding the

difficulty.

Based on the foregoing, therefore, a reduction in costs and expenses is warranted.

Namely, given the excessiveness and the lack of specificity of the request for costs and expenses

to allow proper review, an across-the-board 20% reduction is both reasonable and appropriate.

Applying such reduction to the requested costs and expenses, the total amount of costs and

expenses is reduced from $31,739.73 to $25,391.79. Accordingly, Relator is awarded costs and

expenses in the amount of $25,391.79.

III. Conclusion

For the foregoing reasons, it is hereby

ORDERED:

1. Relator’s request for attorneys’ fees, expenses, and costs (Docs. 89 & 138) is

GRANTED IN PART AND DENIED IN PART.

2. Relator is awarded attorneys’ fees in the amount of $1,040,191.20.

3. Relator is awarded costs and expenses in the amount of $25,391.79.

DONE AND ORDERED in Tampa, Florida, on this 31st day of March, 2020.

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ANTHONY E. Fame

United Sfates Magistrate Judge

cc: Counsel of Record