The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUSSELL S. PRINCE,
Plaintiff,
v. Case No.: 8:19-cv-549-T-35AAS
REBECCA A. MARSON,
Defendant.
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ORDER
The court granted the non-parties’ request for an award of attorney’s fees
under Fed. R. Civ. P. 45(d)(1).1 (Doc. 63). As a result, they seek an award of $8,715.00
in attorney’s fees for 24.9 hours of attorney Ricardo A. Duarte’s time at an hourly rate
of $350.00. (Doc. 63-1). Russell S. Prince opposes the amount sought. (Doc. 65).
Upon review of the billing records, the court finds a fee reduction is necessary for
several reasons.
First, Mr. Duarte seeks $3,185.00 for “fees incurred in connection with
collection efforts.” (Doc. 63, p. 3). “While attorney’s fees incurred for litigating the
issue of entitlement to attorney’s fees are recoverable, fees incurred for litigating the
amount of attorney’s fees are not.” McMahan v. Toto, 311 F.3d 1077, 1085 (11th Cir.
1 Federal Rule of Civil Procedure 45(d)(1) imposes a duty on the subpoenaing party
to “take reasonable steps to avoid imposing undue burden or expense on [non-
parties].” The court “must enforce this duty and impose an appropriate sanction—
which may include lost earnings and reasonable attorney's fees—on a party or
attorney who fails to comply.”
1
2002) (citing State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993)).
Consistent with this case law and the prior order awarding fees for the discovery
dispute only, this order will not award Mr. Duarte his claimed $3,185.00 in fees for
litigating fees.
Second, Mr. Duarte represented Nicole Alexis Gainesbrugh, Denise Kaminski,
and Joseph Harrison at the hearing, but the prior order granted his request for
reimbursement of only Ms. Gainesbrugh’s and Ms. Kaminski’s reasonable expenses
based on a misunderstanding that only those two non-parties had been served with
subpoenas. (See Doc. 60, pp. 2-3). This was an error and the court has now reviewed
the papers and the recording of the March 5th hearing to confirm that Mr. Harrison
had been served and Ms. Gainesbrugh had not. Because Ms. Gainesbrugh had not
been served, awarding her fees would not be proper. However, awarding fees for the
work Mr. Duarte performed in response to Mr. Harrison’s served subpoena is proper.
For this reason, this order will not permit recovery of $1,400.00 in fees related to the
subpoena Mr. Prince never served on Ms. Gainesbrugh. Thus, a potential recovery
of $4,130.00 is the starting point for the possible fee recovery before turning to the
final two issues.
Third, Mr. Duarte did not join Rebecca Marson’s motion to quash and for
protective order and simply attended the hearing on behalf of non-parties Ms.
Gainesbrugh, Mr. Harrison, and Ms. Kaminski. Ms. Duarte cannot recover extensive
fees related to the motion to quash and for protective order, other than for his review
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of the relevant documents in preparation for his attendance at the hearing and his
actual attendance. His collective billing entries related to these tasks are excessive
given that his clients did not join the motion.
Last, although Mr. Duarte may recover his attorney’s fees incurred conversing
with Mr. Harrison and Ms. Kaminski about the subpoenas and objecting to the
subpoenas. His billing records exhibit no efficiencies resulting from the repetitive
nature of duplicative objections and arguments in response to virtually identical
subpoenas.
“When a district court finds the number of hours claimed is unreasonably high,
the court has two choices: it may conduct an hour-by-hour analysis or it may reduce
the requested hours with an across-the-board cut.” Bivins v. Wrap It Up, Inc., 548
F.3d 1348, 13850 (11th Cir. 2008). For all these reasons and upon review of the
submitted billing records, an across-the-board cut of 20% of the $4,130.00 sought is
appropriate.
Accordingly, the non-parties’ motion for attorney’s fees (Doc. 63) is GRANTED
in part and DENIED in part. The non-parties may recover $3,304.00 for Mr.
Duarte’s attorney’s fees, to be paid within thirty days from the date of this order.
ORDERED in Tampa, Florida on April 16, 2020.
Aranda. Arno Sasone_
AMANDA ARNOLD SANSONE
United States Magistrate Judge