# Landi v. Home Depot USA, Inc.

> District Court, M.D. Florida · June 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10105308

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JOHN LANDI and LORI LANDI,
Husband

Plaintiffs,

v. Case No.: 2:17-cv-701-FtM-38MRM

HOME DEPOT USA, INC. and
MAKITA USA, INC.,

Defendants.
/
OPINION AND ORDER1
Before the Court is Defendants Makita USA, Inc. and Home Depot USA, Inc.’s
motion for attorney’s fees and costs (Doc. 192), Plaintiff John Landi’s response (Doc.
194), and Defendants’ reply (Doc. 197).
This is a personal injury case resulting from a miter saw accident that nearly
severed Landi’s arm. On November 15, 2019, Defendants served an Offer of
Judgment/Proposal for Settlement (Proposal) on Landi in the amount of $45,001.00,
which Landi did not accept. On January 13, 2020, after a five-day trial, the jury returned
a verdict for Defendants and awarded Landi nothing. Defendants then moved for
$189,501.00 in attorneys’ fees accrued after the Proposal under Fla. Stat. §768.79. And
they request taxation of $23,997.14 in costs under 28 U.S.C. § 1920. In response, Landi

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the
Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.
attacks the validity of the Proposal, the reasonableness of the requested fees, and the
taxability of Defendants’ costs.
I. Attorney’s Fees
“In the American legal system, each party is traditionally responsible for its own
attorney’s fees.” In re Home Depot Inc., 931 F.3d 1065, 1078 (11th Cir. 2019) (citing

Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 253 (2010)). An exception to the
rule applies when “a statute grants courts the authority to direct the losing party to pay
attorney’s fees.” Id. Fla. Stat. § 768.79 is such a fee-shifting statute. It states,
If a defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable costs
and attorney's fees incurred by her or him or on the defendant's behalf
pursuant to a policy of liability insurance or other contract from the date of
filing of the offer if the judgment is one of no liability or the judgment obtained
by the plaintiff is at least 25 percent less than such offer, and the court shall
set off such costs and attorney's fees against the award.

Fla. Stat. § 768.79(1). The Eleventh Circuit has found § 768.79 substantive for Erie
purposes and therefore applicable in federal diversity cases like this one. Horowitch v.
Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1258 (11th Cir. 2011).
Florida Rule of Civil Procedure 1.442 sets out several requirements for the form
and content of proposals. Proposals for settlement must strictly adhere to these
requirements because Fla. Stat. § 768.79 “is in derogation of the common law that
ordinarily requires each party to pay for its own attorney's fees.” Allen v. Nunez, 258 So.
3d 1207, 1211 (Fla. 2018) (citation omitted). But “proposals for settlement are intended
to end judicial labor, not create more.” Anderson v. Hilton Hotels Corp., 202 So. 3d 846,
853 (Fla. 2016) (citation and quotation marks omitted). So “courts are discouraged from
‘nitpicking’ proposals for settlement to search for ambiguity.” Id. Relevant here, the rule
requires (1) joint proposals to state the amount and terms attributable to each party and
(2) all proposals to “state with particularity” any relevant conditions. Fla. R. Civ. P.
1.442(c)(2)(C), (c)(3).
A. Validity of the Proposal
Landi first contends the Proposal runs afoul of Florida Rule of Civil Procedure

1.442(c)(3), which requires joint proposals to “state the amount and terms attributable to
each party.” Defendants conditioned the Proposal on Landi’s execution of an attached
General Release, which covered Landi’s claims against Defendants and a range of
affiliated companies and people. Landi argues the Proposal was defective because
Defendants did not apportion any part of their offer to the nonparty beneficiaries of the
Release. The Court disagrees.
The apportionment requirement has two main functions. It allows the offeree to
evaluate the offer with respect to each offeror, and it allows the trial court to separately
determine each party’s right to recover attorney’s fees. Hoang Dinh Duong v. Ziadie, 153

So. 3d 354, 359 (Fla. Dist. Ct. App. 2014). Requiring apportionment to nonparty
beneficiaries of the Release is not supported by the language of the rule, would not serve
its purpose, and does not make logical sense. The Proposal satisfied Rule 1.442(c)(3)
by attributing $22,501.00 of the offer to Makita and $22,500.00 to Home Depot.
Landi next argues the Proposal failed Rule 1.442(c)(2)(D)’s particularity
requirement, which “requires that the settlement proposal be sufficiently clear and definite
to allow the offeree to make an informed decision without needing clarification.” State
Farm Mut. Auto. Ins. Co. v. Nicholas, 932 So. 2d 1067, 1079 (Fla. 2006). The Florida
Supreme Court has explained the relationship between Rule 1.442 and general releases:
We caution that rule 1.442 is not intended to revolutionize the language
used in general releases. Traditionally, general releases have included
expansive language designed to protect the offeror from unforeseen
developments or creative maneuvering by the other party. Such language
can be sufficiently particular to satisfy rule 1.442. For example, in Board of
Trustees of Florida Atlantic University v. Bowman, 853 So. 2d 507 (Fla. 4th
DCA 2003), the Fourth District concluded that the language in a general
release, “even though expansive, is typical of other general releases and is
clear and unambiguous.” Id. at 509. The rule aims to prevent ambiguity,
not breadth.

Id. at 1079.
Landi contends the Proposal lacked the required particularity because it was
inconsistent with the Release, which he suggests would cover “all claims to seek any type
of relief arising at any point in the future as to potentially millions of known and unknown
people and entities.” (Doc. 194 at 10). The Proposal states that it is an attempt to
[r]esolve all claims by Plaintiff contained in the above-styled matter, and any
and all potential claims Plaintiff could make against the Defendants arising
out of the same facts and circumstances referred to in the above-styled
matter.

(Doc. 192-1 at 3). The Release covers claims against Defendants and a broad group of
associated people and companies, collectively defined as “Second Parties.” It states,
“the First Party [Landi] and Second Parties wish to resolve all claims, disputes, and
differences among them that relate to or arise in any way out of the Action.” (Doc. 192-1
at 7). By signing the Release, Landi would have agreed to:
HEREBY remise, release, acquit, satisfy, and forever discharge the said
Second Parties, of and from all, and all manner of action and actions, cause
and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, which said
First Party ever had, now has, or which any personal representative,
successor, heir or assign of said First Party, hereafter can, shall or may
have, against said Second Parties, for, upon or by reason of any matter,
cause or thing whatsoever, from the beginning of the world to the end of
these presents.

(Doc. 192-1 at 7-8).
The language in the Release, while broad, is tried and true in Florida. The Fourth
District Court of Appeal approved of a materially identical proposal and release in Costco
Wholesale Corp. v. Llanio-Gonzalez, 213 So. 3d 944 (Fla. Dist. Ct. App. 2017). It found
the “Second Parties” definition “typical of other general releases” and “clear and
unambiguous.” Costco, 213 So. 3d at 947 (quotations marks and citation omitted). As
for the description of the claims to be released, “it is well-established that this type of all-
inclusive language will bar all claims which have matured prior to executing the release[,]”
not future claims. Id. (quotations marks and citation omitted). The court concluded that
the proposal and release language—which Defendants used here—was “sufficiently clear
and definite to allow the plaintiffs to make an informed decision on whether to accept the
proposals.” Id.
The proposals from the cases Landi cites fell short for reasons absent here. Some
created ambiguity by only vaguely describing the required release, instead of including
the full release with the proposal. See Dryden v. Pedemonti, 910 So. 2d 854 (Dist. Ct.
App. Fla. 2005); Nichols v. State Farm Mut., 851 So. 2d 742 (Dist. Ct. App. Fla. 2003);
Hales v. Advanced Sys. Design, Inc., 855 So. 2d 1232 (Fla. 2003). The other proposals
lacked particularity due to circumstances particular to each case. See Sparklin v. So.

Indus. Assocs., Inc., 960 So. 2d 895 (Dist. Ct. App. Fla. 2007) (ambiguity as to whether
a proposal made by one defendant required the plaintiff to release claims against other
defendants); Palm Beach Polo Holdings, Inc. v. Vill. of Wellington, 904 So. 2d 652 (Dist.
Ct. App. Fla. 2005) (ambiguity as to whether the release would extinguish other pending
lawsuits between the parties); Zalis v. M.E.J. Rich Corp., 797 So. 2d 1289 (Dist. Ct. App.
Fla. 2001) (the proposal required plaintiff to “relinquish all rights to sue about anything at
any point in the future”). According to prevailing Florida precedent, the Proposal satisfies
Rule 1.442.
B. Reasonableness of Requested Fees

When evaluating the reasonableness of an attorney’s fee claim that arises from a
state statute, federal courts apply state law. Dunworth v. Tower Hill Preferred Ins. Co.,
No. 05-14019-CIV, 2006 WL 889424, at *1 (S.D. Fla. Feb. 14, 2006). Florida has adopted
the federal lodestar approach, supplemented by statutory factors. Fla. Patient’s Comp.
Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985).
Under the lodestar method, courts first determine the number of hours reasonable
expended in the litigation, and then determine a reasonable hourly rate for the services
of the prevailing party’s attorney. Id. The number of hours determined in the first step is
multiplied by the hourly rate determined in the second step to calculate the lodestar. Id.

The statutory factors are:
1. The then apparent merit or lack of merit in the claim. 2. The number and
nature of offers made by the parties. 3. The closeness of the questions of
fact and law at issue. 4. Whether the person making the offer had
unreasonably refused to furnish information necessary to evaluate the
reasonableness of such offer. 5. Whether the suit was in the nature of a
test case presenting questions of far-reaching importance affecting
nonparties. 6. The amount of the additional delay cost and expense that
the person making the offer reasonably would be expected to incur if the
litigation should be prolonged.

FLA. STAT. § 768.79(7)(b).
The party seeking fees “bears the burden of establishing entitlement and
documenting the appropriate hours and hourly rates.” Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A party opposing fees should make
specific and reasonably precise objections to those hours that should be excluded, and
the failure to do so is generally fatal. Andriello v. CFI Sales & Mktg., Inc., No. 6:09-CV-
208-ORL-35GJK, 2012 WL 3264920, at *5 (M.D. Fla. Jan. 4, 2012). When determining
reasonableness of fees, courts are experts and may draw upon their own knowledge and
experience with or without the aid of witnesses. Norman, 836 F.2d at 1303.
Defendants request $189,501.00 in post-Proposal fees, broken down as follows:
|Timekeeper___| Position | Hourly Rate__| Hours Billed
Frank Hosley Senior partner $325 258.7 $84,077.50
and lead counsel
Justin Niznik $215 240.2 $51,643.00
Stephanie Simm $250 $11,625.00
Donald Blackwell $250 $13,275.00
Richard Russo $215 $2,300.50
Tammie Proffitt $100 265.8 $26,580.00

Defendants’ Motion describes the experience of each attorney and paralegal who worked
on this case, points to cases in which courts in this District approved higher rates for
attorneys and paralegals with comparable experience, and specifically addresses five of
the statutory factors. The Motion is supported by the Affidavit of Frank Hosley (Doc. 192-
2) and a Billing Report (Doc. 192-3), which records the work performed in six-minute
increments and describes the work in detail.
Landi’s response is less thorough. The first half of his argument on the
reasonableness of the requested fee amount is plagiarized from Kearney v. Auto-Owners
Ins. Co., 713 F. Supp. 2d 1369, 1374-75 (M.D. Fla. 2010). Landi does not argue that
defense counsel’s rates are unreasonable, object to any particular time entries, or claim
that any of the statutory factors favor denial or reduction of fees. He instead broadly

objects to the sufficiency of Defendants’ evidence, characterizing—without explanation—
the time sheet as non-meticulous and non-contemporaneous and the hours worked as
facially excessive. And he argues the Hosley Affidavit is insufficient to prove
reasonableness.
The Court finds the rates requested by Defendants reasonable. This conclusion

is based on (1) the experience of each lawyer and paralegal, (2) rates previously
approved in this District for professionals with comparable experience, (3) the high quality
of defense counsel’s work product and their complete success in defending against
Landi’s claims, and (4) the Court’s own knowledge and expertise.
The Court also finds the hours worked reasonable. Contrary to Landi’s claims, the
Billing Report is a meticulous and contemporaneous record of the hours expended.
Hosley reviewed the time logs and deleted excessive, redundant, and unnecessary
entries, and Landi does not object to any particular entries. And the total amount is not
facially unreasonable, considering the statutory factors and amount of damages Landi
sought.2 Thus, the Court will award Defendants $189,501.00 in attorneys’ fees.

II. Costs
Defendants seek costs taxable under 28 U.S.C. § 1920 and Federal Rule of Civil
Procedure 54, which create a strong presumption that the prevailing party in a federal
lawsuit will be awarded the following costs:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically
recorded transcripts necessarily obtained for use in the case; (3) Fees and
disbursements for printing and witnesses; (4) Fees for exemplification and
the costs of making copies of any materials where the copies are
necessarily obtained for use in the case; (5) Docket fees under section 1923

2 Landi’s lowest settlement demand was apparently $900,000, and he asked the jury for
a $2 million verdict after the Court struck his claim for punitive damages just before trial.
of this title; (6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

28 U.S.C. § 1920. Since Defendants are the prevailing party, they must submit a request
for costs that enables the Court to determine what costs were incurred and whether
Defendants are entitled to them. Joseph v. Nichell’s Caribbean Cruise, Inc., 950 F. Supp.
2d 1254, 1258 (S.D. Fla. 2013). Landi “bears the burden to demonstrate that a cost is
not taxable, unless the knowledge regarding the proposed cost lies within the exclusive
knowledge of the prevailing party.” Id. at 1257-58 (quotation marks and citation omitted).
Defendants request $26,722.74 in costs, broken down as follows:
• Fees of the clerk: $400.00
• Fees for transcripts: $14,307.75
• Fees for printing: $3,526.15
• Fees for witnesses: $4,733.86
• Fees for exemplification and copies: $3,754.98

(Doc. 198). Hosley certified that all costs were necessarily incurred.
Like the preceding section of his brief, Landi’s argument on costs begins with
several plagiarized paragraphs, this time from Travelers Indemnity Co. of Conn. v.
Attorney’s Title Ins. Fund, Inc., 2:13-CV-670-FTM-38CM, 2019 WL 359862, at *3 (M.D.
Fla. Jan. 14, 2019). Landi objects to all costs except the $400 filing fee and $120 in
witness fees.
A. Copying Costs
Costs of photocopies are taxable if they are necessarily obtained for use in the
case. Joseph, 950 F. Supp. 2d at 1258. The copies need not be used at trial or filed with
the Court. Id. Instead, the Court considers “whether the prevailing party could have
reasonably believed that it was necessary to copy the papers at issue.” Id. at 1259
(quoting U.S. E.E.O.C. v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000)). The costs of
copies made merely for the convenience of Defendants or their counsel are not taxable.
Id.
Defendants request taxation of $3,754.98 for in-house black and white copying
and printing at a rate of $0.10 per page, $316.60 for in-house color printing at a rate of

$0.50 per page, $1,203.56 for copies of Landi’s medical records, and $2005.99 for
outsourced copying and printing. To support these amounts, Defendants submitted a
Revised Summary of Accounting Costs. Each entry for in-house copying and printing
includes the date, the name of the person who made the entry, the number of pages, the
amount charged, and a generic description, e.g., “Accrued in-house B&W document
printing.” Defendants do not identify the documents or say why they were copied or
printed, so the Court cannot determine if they were necessary. The Court will thus deny
the in-house copying and printing costs.
The entries for outsourced printing include more information. Defendants spent

$482.08 copying documents for a deposition and $1,523.91 for 1,929 color prints about
a week before trial, which is consistent with Defendants’ trial exhibits. These copies were
necessary, as were copies of Landi’s medical records. The Court will award Defendants
$3,209.55 in copying costs.
B. Witness Fees
Defendants request $4,733.86 in airfare and ground transportation costs for three
witnesses. Landi contends 28 U.S.C. § 1821 limits Defendants to $40 per day, per
witness, and he consents to taxation $120.00 in witness fees. § 1821(c) allows taxation
of witness travel costs, provided they use a common carrier at the most economical rate
reasonably available. But it requires the prevailing party to furnish a receipt or other
evidence of actual cost. Defendants did not submit receipts, so they cannot recover
witness travel costs. The Court will award $120.00 in witness fees.
C. Transcripts
Defendants seek taxation of $14,307.75 for deposition, trial, and hearing

transcripts and video recording costs for the depositions of Lori Landi and Leonard
Gabourel. Defendants support their request with entries in their accounting summary.
Landi objects to all of it.
28 U.S.C. § 1920(2) authorizes taxation of deposition costs, but only if the
deposition was necessarily obtained for use in the case. W & O, 213 F.3d at 620-21.
Four of the entries in Defendants’ accounting summary fail to identify the witness,
preventing the Court from evaluating their necessity. Five other entries identify the
witness, but Defendants have not explained their relationship to the case. The Court will
exclude those from the cost award. Landi included the remaining deposed witnesses in

the witness list he filed with the Court. The transcripts from those depositions are taxable.
See id. at 621 (“Taxation of deposition costs of the witnesses on the losing party’s witness
list is reasonable…”). The Court will award the following deposition transcript fees:
• L. Landi: $397.50
• L. Gabourel: $860.70
• Dr. Parent: $325.05
• P. Landi & Dr. J. Landi: $507.05
• Dr. Orbay: $502.65
• Dr. Kendel: $545.55

Video depositions are taxable if the prevailing party shows “why it was necessary
to have both a video deposition and a transcribed deposition for use in the case.” H.C. v.
Bradshaw, 426 F. Supp. 3d 1266, 1285 (S.D. Fla. 2019). Defendants argue videotaped
depositions were necessary to capture how Landi used the saw at the time of his injury.
But the two cost entries identified as video services were for Gabourel and L. Landi,
neither of whom witnessed the injury. The unidentified deposition entries might be
videotaped depositions, but the Court can only speculate. The Court will not award costs
for video depositions.

Trial transcripts are not allowed as a matter of course but can be awarded when
the length and complexity of the case make them necessary. Maris Distributing Co. v.
Anheuser-Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 2002). The length and complexity
of this case alone do not warrant an award for daily trial transcripts, and Defendants do
not explain why they needed hearing and trial transcripts. The Court will not award these
costs.
In sum, the Court will award Defendants $3,138.50 in transcript costs.
D. Post-Judgment Interest
Finally, Defendants request post-judgment interest on its taxable costs. Landi

does not object. 28 U.S.C. § 1961 provides for interest on civil money judgments awarded
by district courts. “When a district court taxes costs against a losing party, the award of
costs bears interest from the date of the original judgment.” BankAtlantic v. Blythe
Eastman Paine Webber, Inc., 12 F.3d 1045, 1052 (11th Cir. 1994). The post-judgment
interest rate is “equal to the weekly average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System, for the calendar
week proceeding.” 28 U.S.C. § 1961(a). The Clerk entered judgment in this case on
January 14, 2020. The rate for the week ending January 10, 2020, was 1.54%. An equal
rate of interest will apply to the cost award from January 14, 2020, until it is paid.
Accordingly, it is now
ORDERED:
Defendants Makita USA, Inc. and Home Depot USA, Inc.’s Motion for an Award
of Attorneys’ Fees and Costs (Doc. 192) is GRANTED in part and DENIED in part.
(1) Defendants are awarded $189,501.00 in attorneys’ fees.
(2) Defendants are awarded $6,868.05 in costs, plus interest at a rate of 1.54%
per annum from January 14, 2020, until paid.
(3) The Clerk is DIRECTED to amend the judgment to include the above fee and
cost awards in favor of Defendants and against Plaintiff John Landi.
DONE and ORDERED in Fort Myers, Florida this 3rd day of June, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105308. Public record. Not legal advice.