The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FREEDOM MEDICAL, INC.,
Plaintiff,
v. Case No. 6:20-cv-771-Orl-37GJK
MAHESHWAR SEWPERSAUD; and
USINE ROTEC, INC.
Defendants.
ORDER
After the Court held Defendants Maheshwar Sewpersaud (“Sewpersaud”) and
Usine Rotec, Inc. (“Rotec”) in contempt, Plaintiff Freedom Medical, Inc. (“Freedom”)
moved for attorneys’ fees, taxed to Rotec. (Doc. 167 (“Fees Motion”); see also Doc. 163
(“Contempt Order”).) On referral, U.S. Magistrate Judge Gregory J. Kelly recommends
granting the Fees Motion in part. (Doc. 169 (“R&R”).) Rotec objected to the R&R and
Freedom responded to the objection. (Docs. 173, 176.) On review, the Court grants the
Fees Motion in part, sustains one of Rotec’s objections, and adopts the R&R with
modifications.
I. BACKGROUND
This saga began on May 1, 2020 when Freedom sued Sewpersaud for violating his
restrictive employment covenant and trade secrets misappropriation. (See Doc. 1.)
Freedom also sought a temporary restraining order (“TRO”) which the Court granted.
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(Docs. 2, 11.) The TRO was converted into a preliminary injunction on June 23, 2020. (Doc.
73 (“PI”).) The next day, Freedom filed an amended complaint, adding Rotec as a
defendant. (Doc. 75.)
Freedom later discovered Sewpersaud had violated both the TRO and the PI—and
he had done so on Rotec’s behalf. (See Doc. 115.) So Freedom filed a motion for an order
to show cause (“Show Cause Motion”) why Defendants should not be held in civil
contempt for these violations. (Id.) After briefing (Docs. 115, 121–22) and a hearing (Doc.
157 (“Hearing”)), the Court held both Rotec and Sewpersaud in civil contempt. (Doc.
163.) Since Sewpersaud had filed for bankruptcy (see Doc. 134), the Court imposed only
injunctive relief against him; but the Court taxed the attorneys’ fees and costs for
litigating the Show Cause Motion to Rotec. (See Doc. 163, pp. 14–15.) Freedom then
moved for $65,124.80 in attorneys’ fees and $12,677.39 in costs. (Doc. 167.) On referral,
Judge Kelly reduced the requested amounts slightly, recommending Freedom be
awarded $62,051.23 in fees and $12,479.36 in costs. (Doc. 169, p. 17.)
Rotec now objects to the R&R. (Doc. 173). With briefing complete, the matter is
ripe. (See Doc. 176.)
II. LEGAL STANDARDS
When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,
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conclusive, or general objections need not be considered by the district court.” Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). The district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court must consider the record
and factual issues based on the record independent of the magistrate judge’s report.
Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990).
III. ANALYSIS
A. Clerical Work
Rotec first argues Judge Kelly erred by fully compensating for work Rotec
identified as clerical in one of its exhibits (Doc. 168-2 (“Paralegal Chart”)). (See Doc. 173,
pp. 9–11.) The Court is not persuaded.
In response to the Fees Motion Rotec prepared a chart of fees sought by Freedom
that Rotec contended were for clerical work performed by legal assistants and
paralegals—and so non-compensable fees. (See Doc. 168, pp. 8–9; Doc. 168-2.) Judge Kelly
correctly noted in his R&R, “[w]ork that is clerical or secretarial in nature is not separately
recoverable.” (Doc. 169, p. 8.) But Judge Kelly disagreed with Rotec that all entries on the
Paralegal Chart were non-compensable, finding “while some entries include clerical
work, others do not and are properly compensable.” (Id. at 9.) Given the block billing and
vague entries, Judge Kelly decided to apply an across-the-board twenty-five percent
reduction to the total amount of fees in the Paralegal Chart. (See id. (citing Bivins v. Wrap
It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).) Rotec now objects to this solution. (See
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Doc. 173, pp. 9–11.) But Rotec again fails to articulate reasons for rejecting each entry in
the Paralegal Chart, instead claiming, without explanation, that “28.7 hours” were for
preparing binders or exhibit lists alone and the remaining hours were “similarly clerical.”
(Id. at 9–10.)
On de novo review, Judge Kelly committed no error. Rotec insists 28.7 hours were
spent on the clerical preparation of exhibit binders—but it doesn’t explain how it came
to that conclusion and just because an entry includes the word “exhibit” or “binder” does
not mean it’s clerical; for example, an entry from 8/24/20 lists “Prepare, review, gather
exhibits and finalize motion re sanctions”—work that is compensable on a motion for
attorneys’ fees. (See id.; see Doc. 168-2, p. 2); cf. HRCC, Ltd. v. Hard Rock Café Int’l (USA)
Inc., No. 6:14-cv-2004-Orl-40KRS, 2018 WL 1863887, at *8 (M.D. Fla. Mar. 26, 2018), adopted
by 2018 WL 1863779 (M.D. Fla. Apr. 13, 2018). Nor does Rotec explain how the remaining
hours were all similarly clerical—pointing “by way of example” to only a small number
of hours that were marked “internal correspondence” and then citing cases about a
separate issue (how duplicative efforts are not compensable). (See Doc. 173, p. 10.) Judge
Kelly correctly found that some, but not all, of the entries included clerical work and he
applied a reasonable 25% across-the-board reduction to account for this. (See Doc. 169,
pp. 8–9.) Rotec’s objection is overruled.
B. Unreasonable Amount of Time
Rotec also objects the amount of time spent on the Show Cause Motion, prior to
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the Hearing,1 was unreasonable and there should be an across-the-board reduction in
time. (Doc. 173, pp. 11–13.) The Court disagrees.
In his R&R, Judge Kelly acknowledged Rotec’s complaints about the number of
hours billed but noted Rotec “does not challenge specific time entries,” instead generally
alleging the total amount was unreasonable. (See Doc. 169, pp. 9–10.) And Judge Kelly
found the amount of time spent preparing for the Hearing was reasonable and not
duplicative. (Id.) On de novo review, the Court agrees.
In its Fees Motion, Freedom provided detailed information about the breakdown
of fees charged by its attorneys. (See Docs. 167-2, 167-3; see also Doc. 176, p. 6.) But in its
response to the Fees Motion and its objection to the R&R, Rotec points to no specific
billing entries, instead generally alleging the amount of hours spent on drafting the Show
Cause Motion and in preparing for the Hearing are excessive. (Doc. 173, pp. 11–13.)
“[G]eneralized statements that the time spent was unreasonable or unnecessary are not
particularly helpful and not entitled to much weight.” Scelta v. Delicatessen Support Servs.,
Inc., 203 F. Supp. 2d 1328, 1333 (M.D. Fla. 2002). An opponent’s failure “to explain exactly
which hours he views as unnecessary or duplicative is generally viewed as fatal.” Id. at
1333 (citing Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387 (11th Cir. 1997)).
Even looking at the categorical hour amounts, the number of hours billed by
Freedom was not unreasonable. Freedom was asking the Court to hold both Rotec and
Sewpersaud in civil contempt—an action not to be taken lightly. (See Doc. 115.) From the
1 Time spent after the Hearing is discussed infra, Section III.C.
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first Show Cause Motion through the Hearing and the entry of the Contempt Order, the
inquiry was fact-intensive and required detailed analysis and the provision of evidence.
(See Docs. 163, 176.) This was not a simple matter, as Rotec seems to imply. (See Doc. 173,
p. 12.) And, as Judge Kelly explained, the hours Mr. Bellido spent preparing for the
Hearing were not excessive or duplicative because he, as Freedom’s local counsel, had an
obligation to be prepared even if he didn’t present argument at the Hearing. (Doc. 169, p.
10.) On de novo review, the hours charged are not excessive and an across-the-board
reduction is not warranted; Rotec’s objection is overruled.
C. Post-Hearing Fees
Rotec’s final objection is that the fees incurred after the Hearing, for the
preparation of proper exhibit lists, is duplicative, excessive, and/or clerical and Judge
Kelly erred when he awarded Freedom the full-cost of its post-Hearing fees. (Doc. 173,
pp. 13–15.) The Court agrees in part and will reduce the amount of post-Hearing fees.
First, some history. At the Hearing, Freedom presented additional exhibits for the
Court to consider, but Freedom’s exhibit lists did not comply with the Court’s orders on
the proper preparation of exhibits. (See Docs. 158–59; see also Doc. 174, p. 5:16–22.)
Specifically, the parties had difficulty agreeing on which exhibits were stipulated to and
which were objected to and why—required information on the Court’s exhibit list form.
(See, e,g., Doc. 160, p. 3.) This was especially critical as Freedom failed to move to admit
the exhibits into evidence at the Hearing. (See Doc. 174.) So after the Hearing the Court
directed the parties to meet and confer and for Freedom to submit compliant exhibit lists.
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(Doc. 158.) When that didn’t happen, the Court ordered Freedom to show cause why
(Doc. 159)—to which Freedom responded by filing three separate notices, detailing its
efforts to meet and confer with Defendants and filing a more detailed exhibit list chart.
(See Docs. 160–62; see also Doc. 169, p. 12.) The Court later overruled Rotec’s objections to
many of the exhibits and relied on the exhibits in its Contempt Order. (See Doc. 163, p. 1
n.1.) In its Fees Motion, Freedom included fees from these efforts to prepare exhibit
binders after the Hearing. (See Doc. 169, p. 12.)
Judge Kelly found such fees were necessary to resolve the evidentiary disputes
between the parties, both sides blamed the other for the meet and confer difficulties, and
this effort was directly related to the Show Cause Motion and Contempt Order—so Judge
Kelly recommends taxing the full post-Hearing cost to Rotec. (See id.) But in its objection,
Rotec notes Freedom spent more than thirty-five hours after the Hearing to complete
these exhibit lists—lists which should have been presented to the Court at the Hearing.
(See Doc. 173, pp. 13–15; see also Doc. 158; Doc. 174, p. 5:16–22.) On de novo review, the
Court will reduce the amount of attorneys’ fees taxed to Rotec for the post-Hearing work.
It’s clear Rotec is not wholly blameless in the amount of time Freedom required to
prepare its exhibit lists, which contains a meet and confer requirement. (See Doc. 162,
¶¶ 9, 12.) But the Court will not reward Freedom for failing to do what it should have
done in the first instance, nor will it minutely referee Freedom’s specific hourly entries.
Thirty-five hours to do what should have been done before the Hearing is excessive, so
the Court will apply an across-the-board 50% reduction to Freedom’s requested post-
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Hearing fees. See Bivins, 548 F.3d at 1350. As a result, the Court will deduct $5,518.25 from
Freedom’s attorneys’ fees.2 So the Court sustains Rotec’s objections in part with respect
to post-Hearing fees and modifies the R&R.
Finally, neither party objected to the remainder of the R&R and the time for doing
so has passed. Absent objection, the Court has examined this portion of the R&R only for
clear error. See Wiand v. Wells Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490,
at *1 (M.D. Fla. Jan. 28, 2016); see also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th
Cir. 2006). And the Court finds none. So the Court will adopt the R&R as modified by
supra, Section III.C.
As this is the last issue outstanding that is directly related to the Contempt Order,
the Court now stays the case in its entirety in light of Sewpersaud’s bankruptcy
proceeding. (See Doc. 163, p. 13.)
IV. CONCLUSION
It is ORDERED AND ADJUDGED:
1. Defendant Rotec’s Objections to Magistrate’s December 18, 2020 Report and
Recommendation on Plaintiff’s Motion for Award of Attorneys’ Fees and
Costs (Doc. 173) is OVERRULED IN PART and SUSTAINED IN PART,
as follows:
2 Freedom charged $9,483.50 for work done by the law firm of Kang Haggerty &
Fetbroyt LLC (Doc. 167-2, pp. 37–39) and $1553 from the law firm of local counsel, Mr.
Nelson Bellido (Doc. 167-3, pp. 23–24.)
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a. Rotec’s objection to the amount of post-Hearing fees awarded to
Freedom is SUSTAINED, consistent with this Order;
b. In all other respects, Rotec’s objections are OVERRULED.
2. U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 169) is ADOPTED IN PART AND REJECTED IN PART, consistent
with this Order.
3. Plaintiff Freedom’s Motion for Award of Attorneys’ Fees and Costs (Doc.
167) is GRANTED IN PART AND DENIED IN PART, as follows:
a. Freedom is AWARDED $56,532.98 in attorneys’ fees, to be taxed
against Rotec;
b. Freedom is AWARDED $12,479.36 in costs, to be taxed against
Rotec;
c. In all other respects, the Fees Motion is DENIED.
4. Rotec is DIRECTED to pay Freedom’s counsel this award by Tuesday,
February 16, 2021.
5. This case is STAYED in its entirety, pending the resolution of Defendant
Maheshwar Sewpersaud’s bankruptcy proceeding.
6. By Monday, March 29, 2021 and every ninety (90) days thereafter, the
parties are DIRECTED to file a status report regarding the bankruptcy
proceeding (see Doc. 172).
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7. The Clerk is DIRECTED to terminate all pending motions and
administratively close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on January 26, 2021.
Gib.
be ote
“ROY B. DALTON JR:
United States District Judge
Copies to:
Counsel of Record
Pro Se Party
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