United States of America v. Health Management Associates, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

UNITED STATES OF AMERICA, ex

rel and BRADLEY NURKIN,

Plaintiffs,

v. Case No: 2:11-cv-14-FtM-29MRM

HEALTH MANAGEMENT

ASSOCIATES, INC., CHARLOTTE

HMS, LLC, and PUNTA GORDA

HMA, LLC,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Relator’s Motion for

Award of Attorney Fees, Costs, and Expenses (Doc. #12) and his

Memorandum in Support (Doc. #13), both filed on May 4, 2020.

Defendants filed an Opposition (Doc. #24) on May 18, 2020, to which

Relator filed a Reply (Doc. #26) on June 3, 2020. The parties

participated in a settlement conference with the assigned

magistrate judge, but were unable to resolve the motion. (Docs.

#27, 33.) For the reasons set forth below, the motion is granted

to the extent that attorney fees, costs, and expenses are awarded,

but denied in part as to the amounts requested.

I.

The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, imposes

civil liability on persons who commit certain types of material

fraud against the United States government.1 To enforce the

provisions of the False Claims Act, the Attorney General may sue

a violator in a civil lawsuit pursuant to § 3730(a), or a private

plaintiff, known as a relator, may bring a qui tam civil action in

the name of the United States against a violator pursuant to §

3730(b). 2 “In a qui tam action, the relator pursues the

government's claim against the defendant, and asserts the injury

in fact suffered by the government. [ ] In bringing a qui tam

action, the relator in effect, sues as a partial assignee of the

United States.” United States ex rel. Hunt v. Cochise

Consultancy, Inc., 887 F.3d 1081, 1086 (11th Cir. 2018), aff'd,

139 S. Ct. 1507 (2019)(citations and internal quotations omitted).

The FCA places a number of restrictions on suits by relators and

establishes specific procedures a relator must follow in filing

the complaint, State Farm Fire & Casualty Co. v. United States,

137 S. Ct. 436, 440 (2016), discussed below.

On or about June 3, 2010 Edward Sanders (Sanders), a sole

practitioner licensed to practice law in Mississippi, was retained

1 Universal Health Servs. Inc. v. United States ex rel.

Escobar, 136 S. Ct. 1989, 2003 (2016)(FCA is not an “all purpose

anit-fraud statute” and is not “a vehicle for punishing garden-

variety breaches of contract or regulatory violations.”)

2“Qui tam is short for the Latin phrase qui tam pro domino

rege quam pro se ipso in hac parte sequitur, which means ‘who

pursues this action on our Lord the King's behalf as well as his

own.’” Vt. Agency of Nat. Res. v. United States ex rel. Stevens,

529 U.S. 765, 768 n.1 (2000).

by Bradley Nurkin (relator or Nurkin) to prepare and file a FCA

lawsuit. Nurkin was the former Chief Executive Officer of

Charlotte Regional Medical Center (CRMC), one of a chain of

hospitals owned by Health Management Associates, Inc. (HMA).

On January 13, 2011, Nurkin and Sanders executed a Contract

For Legal Services (the contingent fee Contract) (Doc. #13-3) in

which Nurkin agreed to pay Sanders one-third of “whatever recovery

I ultimately receive from this litigation.” Nurkin also agreed

that all out-of-pocket expenses directly incurred by Sanders would

be paid out of the Nurkin’s recovery proceeds before calculation

of the attorney fee. Id. The Contract also recited that if the

United States Attorney did not agree to intervene in the lawsuit,

Nurkin did not want the case to proceed. Id.

On January 14, 2011 Sanders filed Nurkin’s sealed qui tam

Complaint (Doc. #1) in the Fort Myers Division of the Middle

District of Florida against Health Management Associates, Inc.,

Charlotte HMS, LLC, and Punta Gorda HMA, LLC (collectively

defendants) for violation of the FCA. The Complaint alleged that

defendants knowingly induced doctors to make patient referrals and

hospital admissions by intentionally and knowingly providing the

doctors with improper remuneration; intentionally and knowingly

submitted false certifications of compliance; and intentionally

and knowingly submitted false claim forms. This misconduct was

intended to cheat the United States out of $100-$150 million. The

Court granted Nurkin’s accompanying Motion to Seal (Doc. #35) and

stayed the case except for service of the Complaint and statutory

disclosures upon the government. (Doc. #36.)

Special procedures apply when a relator brings

an FCA action; these procedures afford the

government the opportunity to intervene and

assume primary control over the litigation. A

relator who initiates an FCA action must file

her complaint under seal and serve it only on

the United States. 31 U.S.C. § 3730(b)(2).

While the lawsuit remains under seal, the

United States has the opportunity to

investigate and decide whether to intervene as

a party. Id. During this period, the United

States may serve a civil investigative demand

upon any person believed to be in possession

of documents or information relevant to an

investigation of false claims, requiring that

person to produce documents, answer

interrogatories, or give oral testimony. Id.

§ 3733(a)(1). In addition, the United States

may meet with the relator and her attorney,

giving the government an opportunity to ask

questions to assess the strengths and

weaknesses of the case and the relator a

chance to assist the government's

investigation.

If the United States decides to intervene, the

government acquires “primary responsibility

for prosecuting the action,” although the

relator remains a party. Id. § 3730(c)(1). In

contrast, if the United States declines to

intervene, the relator may proceed with the

action alone on behalf of the government, but

the United States is not a party to the action.

Id. § 3730(c)(3).

Cochise Consultancy, Inc., 887 F.3d at 1086–87.

As it turned out, the United States spent almost three years

deciding whether to intervene in Nurkin’s case. The primary

activity in the court file during this time was multiple unopposed

requests by the government for extensions of time to decide whether

to intervene and several matters relating to the sealing or

unsealing of the Complaint. (Docs. ##37-60.)

On December 16, 2013, the United States filed its Notice of

Election to Intervene. (Doc. #2.) The Government advised the

Court that it intended to file a motion renewing its request to

the Judicial Panel on Multidistrict Litigation (the MDL Panel)

that the MDL Panel transfer most of the other qui tam cases against

HMA, including this case, to a single district. (Id.) The

government also sought a stay of the proceedings pending a ruling

by the MDL Panel. (Id.) The Government’s request for stay was

granted on December 19, 2013, and the Complaint was unsealed.

(Doc. #3.)3

On January 15, 2014, the United States filed Notice of its

second motion seeking transfer of the case to the MDL Panel. (Doc.

#6.) On April 10, 2014, the MDL Panel transferred this case, and

seven others, to the District of the District of Columbia for

centralized handling. (Doc. #7.) The allegations in six of the

transferred cases concerned the improper admissions of patients

through the Emergency Departments of hospitals without medical

necessity, while the seventh case alleged wrongdoing in connection

3On January 8, 2021, the Court unsealed the remainder of the

court file. (Doc. #34.)

with a joint venture arrangement with a physician’s group at HMA

hospitals in Pennsylvania.

Shortly after the cases arrived at the MDL Court, the MDL

parties moved for and obtained a stay of proceedings in order to

pursue settlement discussions. As it turned out, settlement

discussions occurred over the next four years, with periodic

requests to extend the stay in the case being granted by the

assigned MDL judge.

Sanders asserts that on or about May 9, 2017, the government

and defendants agreed to the amount to be paid to the government

by defendants in the Nurkin matter. (Doc. #13-5, ¶ 40.) On

February 1, 2018, Sanders filed an unopposed motion for extension

of time in which to file motion for attorneys’ fees, costs, and

expenses (Doc. #9-2, pp. 9-11)4, which was granted. Sanders

asserts that on or about March 22, 2018 Nurkin’s share of the

government’s recovery was agreed upon. (Doc. #13-5, ¶ 41.)

In late September 2018, a settlement was announced, and in

October 2018, a global settlement was formalized between the

Department of Justice and defendants in all eight cases. None of

the relators in the eight cases, including Nurkin and his counsel,

had participated in these settlement negotiations. Among other

things, HMA agreed to pay the United States $262.2 million to

4 All page numbers in the document citations refer to the

CM/ECF-generated numbers at the upper right corner of the document.

resolve all civil and criminal matters, including the eight qui

tam lawsuits. The global settlement allocated $93.5 million of

that amount to Nurkin’s case, which was to be dismissed.

Any recovery obtained from a defendant in an

FCA qui tam action belongs to the United

States, regardless of whether the government

has intervened. The relator is entitled to a

portion of the recovery, however. Id. §

3730(d). . . .

The size of the relator's share depends upon

whether the United States intervenes. In an

intervened case, the relator usually is

entitled to between 15 and 25 percent of the

proceeds, as well as reasonable expenses,

attorney's fees, and costs. 31 U.S.C. §

3730(d)(1). In a non-intervened case, the

relator's share usually is greater: between 25

and 30 percent of the proceeds, as well as

reasonable expenses, attorney's fees, and

costs. Id. § 3730(d)(2).

Even though the relator receives a smaller

share in an intervened case, relators

generally try to persuade the United States to

intervene because the government's

intervention makes it far more likely that

there will be a recovery. When the United

States elects to intervene, about 90 percent

of the time the case generates a recovery,

either through settlement or a final judgment.

But only about 10 percent of non-intervened

cases result in recovery. See David Freeman

Engstrom, Public Regulation of Private

Enforcement: Empirical Analysis of DOJ

Oversight of Qui Tam Litigation Under the

False Claims Act, 107 Nw. U. L. Rev. 1689,

1720-21 (2013). Indeed, when the government

declines to intervene, more than 50 percent of

the time the relator decides not to proceed

and voluntarily dismisses the action. See id.

at 1717-18.

Cochise Consultancy, Inc., 887 F.3d at 1087–88 (footnote omitted).

On October 22, 2018, a Joint Stipulation of Dismissal (Doc.

#9-2, pp. 1-4) was signed by Sanders and the other parties,

agreeing to dismissal of Nurkin’s case pursuant to the Settlement

Agreement. On October 25, 2018, an Order (Doc. #9-2, pp. 7-8) was

entered dismissing Nurkin’s FCA case, but retaining jurisdiction

over any claim by Nurkin for expenses, attorneys’ fees and costs

pursuant to 31 U.S.C. § 3730(d).

On an unspecified date Nurkin received $14,952,913 of the

$93.5 million allocated to his case (approximately 16%) from the

government. (Doc. #13, p. 4.) HMA did not dispute that Nurkin

was entitled to attorneys’ fees pursuant to the FCA (Doc. #9-2, p.

40), and for much of 2019 Nurkin and HMA attempted to resolve their

disagreement over the amount of attorneys’ fees HMA owed to Nurkin.

(Id. at 41.) These efforts were unsuccessful.

On November 12, 2019, HMA filed a Motion To Suggest Remand

(Doc. #9-2, pp. 39-43) of the case back to the Middle District of

Florida to resolve the only remaining issue – the amount of

attorney fees, expenses, and costs. The government agreed to the

motion, but Nurkin filed a written opposition. (Doc. #9-2, pp.

48-55.)

On April 2, 2020, the MDL Panel issued a Conditional Remand

Order (Doc. #9) remanding this case because the pretrial

proceedings had been completed. Attached was a copy of the Order

signed October 25, 2018, dismissing Nurkin’s FCA claim except for

the request for attorneys’ fees, expenses and costs, which was

remanded to this Court. (Doc. #9-2, pp. 7-81.)

II.

The Supreme Court has stated that “a request for attorney's

fees should not result in a second major litigation.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983). That ship sailed long ago

in this case.

Pursuant to the contingent fee Contract with Sanders, Nurkin

paid his attorneys approximately $4,934,461.29 - one-third of the

amount Nurkin received from the government. The “American Rule”

is a bedrock principle under which “[e]ach litigant pays his own

attorney fees, win or lose, unless a statute or contract provides

otherwise.” Peter v. Nantkwest, Inc., 140 S. Ct. 365, 370

(2019)(citation omitted). A court does not deviate from the

American Rule “absent explicit statutory authority.” Baker Botts

LLP v. ASARCO LLC, 576 U.S. 121, 126 (2015)(citation omitted).

Nurkin now seeks attorney fees under the fee-shifting provision of

the FCA.5

Under the FCA, in addition to a shared recovery of the funds

obtained by the government, a qui tam relator “shall also receive

5 As discussed in § IV-B(5) of this Opinion and Order, it is

not entirely clear whether Nurkin seeks reimbursement of the

attorney fees he has paid from his recovery, or simply wants his

attorneys to receive additional fees, paid by defendants, or some

combination of both.

an amount for reasonable expenses which the court finds to have

been necessarily incurred, plus reasonable attorneys' fees and

costs. All such expenses, fees, and costs shall be awarded against

the defendant.” 31 U.S.C. § 3730(d).6 Nurkin asks the Court to

award such attorney fees in one of the following amounts using one

of the following three methodologies:

Lodestar: $4,128,983.70

Enhanced Loadstar: $9,207,633.65

Contingency Fee: $11,921,250.00

(Doc. #13, p. 13.)

Defendants ask the Court to either deny the fee request

entirely or award only a small fraction of the request. (Doc.

#24, pp. 4, 7-22.) Defendants suggest total attorney fees of

$229,544.70. (Id. at 31.)

III.

The Court first addresses defendants’ request to eliminate

all shifted fees as a sanction. The Court recognizes its inherent

authority, which includes fee shifting and, the Court believes,

fee reduction or elimination.

6 “There are over 100 separate statutes providing for the

award of attorney's fees; and although these provisions cover a

wide variety of contexts and causes of action, the benchmark for

the awards under nearly all of these statutes is that the

attorney's fee must be ‘reasonable.’” Pennsylvania v. Delaware

Valley Citizens' Council for Clean Air, 478 U.S. 546, 562 (1986),

supplemented, 483 U.S. 711 (1987).

Federal courts possess certain “inherent

powers,” not conferred by rule or statute, “to

manage their own affairs so as to achieve the

orderly and expeditious disposition of cases.”

Link v. Wabash R. Co., 370 U.S. 626, 630–631,

82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). That

authority includes “the ability to fashion an

appropriate sanction for conduct which abuses

the judicial process.” Chambers v. NASCO,

Inc., 501 U.S. 32, 44–45, 111 S. Ct. 2123, 115

L. Ed. 2d 27 (1991). And one permissible

sanction is an “assessment of attorney's

fees”—an order, like the one issued here,

instructing a party that has acted in bad

faith to reimburse legal fees and costs

incurred by the other side. Id., at 45, 111 S.

Ct. 2123.

This Court has made clear that such a

sanction, when imposed pursuant to civil

procedures, must be compensatory rather than

punitive in nature. See Mine Workers v.

Bagwell, 512 U.S. 821, 826–830, 114 S. Ct.

2552, 129 L. Ed. 2d 642 (1994) (distinguishing

compensatory from punitive sanctions and

specifying the procedures needed to impose

each kind). In other words, the fee award may

go no further than to redress the wronged

party “for losses sustained”; it may not

impose an additional amount as punishment for

the sanctioned party's misbehavior. Id., at

829, 114 S. Ct. 2552 (quoting United States v.

Mine Workers, 330 U.S. 258, 304, 67 S. Ct.

677, 91 L. Ed. 884 (1947)). To level that kind

of separate penalty, a court would need to

provide procedural guarantees applicable in

criminal cases, such as a “beyond a reasonable

doubt” standard of proof. See id., at 826,

832–834, 838–839, 114 S. Ct. 2552. When (as in

this case) those criminal-type protections are

missing, a court's shifting of fees is limited

to reimbursing the victim.

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186

(2017)(footnote omitted). The key to the imposition of sanctions

under a court’s inherent authority is a finding of subjective bad

faith. Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020).

The misconduct alleged by defendants in this case relates to

the contents of the fee request, which defendants criticize as

constituting “rampant overbilling” which is “grossly excessive”

and/or “outright fictitious”. (Doc. #24, pp. 7, 9, 20.) The

Court, however, finds an insufficient basis to reduce or eliminate

attorney fees as a sanction. While plaintiff’s fee records were

clearly not contemporaneously prepared, the Court does not find

subjective bad faith by plaintiff or his counsel. The normal

rules for reviewing requests to shift attorney fees, expenses, and

costs provide the Court with sufficient control to achieve an

orderly and expeditious disposition of the case and the motion.7

Thus, while the Court will make reductions to the requested

attorney fees and expenses, it will not do so as a sanction under

its inherent authority.

IV.

Generally, courts calculate attorney fees using one of two

methods – the percentage method or the lodestar method, with or

without a lodestar multiplier (enhancement). In re Home Depot

Inc., 931 F.3d 1065, 1076 (11th Cir. 2019). The Court discusses

7 For example, “[w]here the documentation of hours is

inadequate, the district court may reduce the award accordingly.”

Hensley, 461 U.S. at 434.

each methodology and the appropriate amount of reasonable attorney

fees.

A. Percentage Methodology

Nurkin argues that the Court should use a contingency fee

methodology because the lodestar method does not “adequately model

the risk taken by counsel” that the government would not intervene.

The contingency fee method, on the other hand, “accurately

compensates counsel for the risk undertaken and also considers the

spectacular results obtained for the United States.” (Doc. #13,

pp. 11-12.)

Nurkin’s expert William Henry Shawn (Mr. Shawn) favors this

methodology over either lodestar approaches. (Doc. #13-1, pp. 12,

18-19.) Mr. Shawn asserts that Nurkin is entitled to a percentage

of the net recovery by the government, i.e. a percentage of all

the money recovered by the government allocated to the Nurkin case

($93.5 million) less the amount paid to Nurkin ($14,952,913).

Utilizing $79,475,000 as the net amount recovered by the

government, Mr. Shawn asserts Nurkin is entitled to his contractual

33.33 percent contingency, but nonetheless reduces the percentage

to 15%. Mr. Shawn then computes 15% of the net recovery obtained

by the United States, arriving at “a fair and reasonable full

contingency fee of $11,921,250.00.” (Id. at 19.)

Nurkin and Sanders utilized a contingency fee arrangement

under which the attorney fees were to be paid by Nurkin from his

recovery (if he obtained one). Such an arrangement, however,

cannot be utilized where the fees are being awarded pursuant to a

fee-shifting statute under which a non-client will be paying the

fees. “In statutory fee-shifting cases, the Supreme Court has said

that courts should use the lodestar method.” In re Home Depot

Inc., 931 F.3d at 1081 (citing City of Burlington v. Dague, 505

U.S. 557, 562 (1992)). See also Blanchard v. Bergeron, 489 U.S.

87, 96 (1989)(“The contingent-fee model, premised on the award to

an attorney of an amount representing a percentage of the damages,

is thus inappropriate for the determination of fees under § 1988.”)

Rather, the lodestar methodology is used to determine the amount

of a reasonable attorney fee under the FCA.

The FCA permits a relator “reasonable

attorney's fees and costs.” 31 U.S.C. §

3730(d)(1) (2006). The district court

calculates attorney's fees under the lodestar

formula, which is “the number of hours

reasonably expended on the litigation

multiplied by a reasonable hourly rate.”

Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct.

1933, 1939, 76 L. Ed. 2d 40 (1983); Norman v.

Housing Auth. of the City of Montgomery, 836

F.2d 1292, 1299 (11th Cir.1988) (citing

Hensley).

United States v. Patrol Servs., Inc., 202 F. App’x 357, 358–59

(11th Cir. 2006). There is no convincing legal basis which

supports applying a contingency percentage to an amount awarded to

a party other than the client - here the United States, which was

represented by its own attorneys.

Even if available in a FCA case, the contingency fee as

determined by Mr. Shawn would be grossly excessive. Nurkin

asserts that his attorneys worked 4,618.55 hours on his case. As

a result, the contingency fee requested by Mr. Shawn is the

functional equivalent of approximately $2,581.00 an hour for each

hour expended, not counting almost $5 million (approximately

$1,068 per hour) already paid to Nurkin’s attorneys.

Accordingly, the Court declines to utilize a percentage

method to determine the amount of reasonable attorney fees in this

FCA case.

B. Lodestar and Enhanced Lodestar Methodology

“The amount of the fee, of course, must be determined on the

facts of each case.” Hensley, 461 U.S. at 429. Under the lodestar

methodology, the trial court makes “an initial estimate of

reasonable attorney's fees by applying prevailing billing rates to

the hours reasonably expended on successful claims.” Bergeron,

489 U.S. at 87 (citing Hensley, 461 U.S. at 433). See also Norman

v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299

(11th Cir. 1988). “[T]he lodestar method produces an award that

roughly approximates the fee that the prevailing attorney would

have received if he or she had been representing a paying client

who was billed by the hour in a comparable case.” Perdue v. Kenny

A. ex rel. Winn, 559 U.S. 542, 551 (2010)(emphasis in original).

While the lodestar approach is “the centerpiece of attorney’s

fee awards,” Blanchard, 489 U.S. at 94, “[t]he courts may then

adjust this lodestar calculation by other factors.” Id. The so-

called Johnson factors8 “may be relevant in adjusting the lodestar

amount, but no one factor is a substitute for multiplying

reasonable billing rates by a reasonable estimation of the number

of hours expended.” Id. The Supreme Court has rejected undue

reliance on the 12–factor test. Murphy v. Smith, 138 S. Ct. 784,

790 (2018). Adjustments to the lodestar result may only be awarded

in “rare” and “exceptional” circumstances. Perdue, 559 U.S. at

552 (citations omitted). The Supreme Court has consistently

rejected enhancing a lodestar calculation based on risk, highly

favorable results, novelty and complexity of the issues, special

skill and experience of counsel, and quality of representation.

Delaware Valley Citizens' Council for Clean Air, 478 U.S. at 564-

65; Dague, 505 U.S. at 566; Perdue, 559 U.S. at 554.

8The twelve Johnson factors are: (1) the time and labor

required; (2) the novelty and difficulty of the questions; (3) the

skill requisite to perform the legal service properly; (4) the

preclusion of other employment by the attorney due to acceptance

of the case; (5) the customary fee; (6) whether the fee is fixed

or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorneys; (10)

the “undesirability” of the case; (11) the nature and length of

the professional relationship with the client; and (12) awards in

similar cases. Johnson v. Georgia Highway Exp., Inc., 488 F.2d

714, 717-719 (5th Cir. 1974).

The existence of a contingent fee Contract between Nurkin and

Sanders, however, does not change the lodestar methodology. “We

have never suggested that a different approach is to be followed

in cases where the prevailing party and his (or her) attorney have

executed a contingent-fee agreement.” Blanchard, 489 U.S. at 94.

A “reasonable attorney's fee”

contemplates reasonable compensation, in

light of all of the circumstances, for the

time and effort expended by the attorney for

the prevailing plaintiff, no more and no less.

Should a fee agreement provide less than a

reasonable fee calculated in this manner, the

defendant should nevertheless be required to

pay the higher amount. The defendant is not,

however, required to pay the amount called for

in a contingent-fee contract if it is more

than a reasonable fee calculated in the usual

way.

Blanchard, 489 U.S. at 93. “The attorney's fee provided for in a

contingent-fee agreement is not a ceiling upon the fees recoverable

under § 1988.” Id. at 96.

Nurkin computes the lodestar amount as follows: A reasonable

hourly rate of $894 per hour multiplied by 4,618.55 reasonable

hours for a fee total of $4,128,983.70. (Doc. #13, p. 10.) Nurkin

uses a multiplier of 2.23 to arrive at an enhanced lodestar amount

of $9,207,633.45. (Id. pp. 10-11.)

Defendants object to almost everything involved with this

proposed attorney fee calculation. Defendants assert that the

lodestar amount should be $229,544.70. (Doc. #24, p. 31.)

(1) Reasonable Hourly Rate

Relator seeks an hourly rate of $894 for each of his three

attorneys. (Doc. #13, p. 6.) Defendants’ expert A. Brian

Albritton (Mr. Albritton) recommends an hourly rate of $400 for

Sanders when engaged in non-associate type of legal work, $300-

$350 for Branning when performing partner-level work, and $250 for

all of Johnson’s work. (Doc. #24-1, pp. 16-17.)9

“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, 836 F.2d at 1299 (citations omitted).

The general rule is that the ‘relevant market’

for purposes of determining the reasonable

hourly rate for an attorney's services is ‘the

place where the case is filed.’ If a fee

applicant desires to recover the non-local

rates of an attorney who is not from the place

in which the case was filed, he must show a

lack of attorneys practicing in that place who

are willing and able to handle his claims.

Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 437

(11th Cir. 1999) (citing Cullens v. Georgia Dep't of Transp., 29

F.3d 1489, 1494 (11th Cir. 1994)). The burden is on the fee

applicant “to produce satisfactory evidence” that the rate is in

line with those prevailing in the relevant legal community. Blum

9 In his Reply, the Relator suggests that $400 would be the

appropriate rate for all his attorneys if the Court concludes that

Fort Myers is the prevailing market. (Doc. #26, p. 2 n.2.)

v. Stenson, 465 U.S. 886, 896 n.11 (1984). “Satisfactory

evidence,” means “more than the affidavit of the attorney

performing the work.” Loranger v. Stierheim, 10 F.3d 776, 781

(11th Cir. 1994)(citation omitted). A court “is itself an expert

on the question and may consider its own knowledge and experience

concerning reasonable and proper fees and may form an independent

judgment either with or without the aid of witnesses as to value.”

Id. (citation omitted).

Relator asserts that the relevant market is the District of

Columbia, where the case was transferred and settled, and that the

District of Columbia reasonable hourly rate for all three of his

attorneys is $894. (Doc. #13, pp. 5-6.) The Relator relies upon

Mr. Shawn’s expert opinion as to the hourly rates in the District

of Columbia, which the Court would accept, however the District of

Columbia is not the relevant legal community.

The case was filed in the Fort Myers Division of the Middle

District of Florida after Nurkin’s attorneys specifically

researched the proper venue for the case. (See Doc. # 24-1, p.

11, n.13.) The facts underlying plaintiff’s claim clearly support

venue in the Fort Myers Division. The great majority of the work

by attorneys Sanders and Branning occurred prior to the transfer

of the case to the District of Columbia. The extensive activities

in the District of Columbia occurred when the case was controlled

by government attorneys, who reached the global settlement with

HMA without participation of relator or his attorneys. Relator

has not attempted to establish the unavailability of FCA-qualified

counsel in either Fort Myers or the Middle District of Florida.

The Court concludes that the Fort Myers Division of the Middle

District of Florida is the relevant legal community for purposes

of determining the reasonable hourly rates for an attorney’s

services in this FCA case.

The record contains relatively little background concerning

plaintiff’s attorneys. The Declaration of Edward Sanders (Doc.

#13-5) shows that Sanders is a 1990 graduate of the University of

Mississippi School of Law, and the managing partner (and sole

member) of Sanders Law. Mr. Sanders has 28 years of litigation

experience with a focus that appears to be product liability cases,

as well as involvement in mass tort, consumer finance, personal

injury, class action, antitrust, medical malpractice, and

insurance cases. (Id., ¶¶ 2, 3, 5.) Sanders has no documented

experience in FCA cases prior to his representation of Nurkin,

although defendants acknowledge that he “had successfully

litigated complex product liability and other tort actions.”

(Doc. #24, p. 4.)

Robert Joseph Branning (Branning) is, according to

defendants, a 1996 graduate of the Mississippi College School of

Law who was admitted to The Florida Bar in December, 1999.

Branning was appointed as a Lee County, Florida, Circuit Court

Judge in 2014. (Doc. #24-1, pp. 8-9.) Prior to his appointment

to the bench, Branning was a partner at a small Fort Myers law

firm which focused on criminal defense. Branning has no

documented experience in FCA cases prior to his representation of

Nurkin. Branning is well-known to the Court, having tried at

least one federal criminal case before the undersigned.

Bethany Brantley Johnson (Johnson) was hired by Sanders to

assist in the preparation of an application for attorney fees,

expenses and costs. Ms. Johnson is a 1996 summa cum laude graduate

of the Mississippi College School of Law and is licensed to

practice law in Mississippi. Defendants report that a Google

search reflects that Johnson is currently with a law firm in

Mississippi and concentrates her practice in the areas of the Fair

Labor Standards Act, the Employment Retirement Income Security

Act, and employment litigation. (Doc. #24-1, p. 9.)

None of relator’s attorneys specify what their actual hourly

rates were at the time or are currently.10 There is no evidence

of hourly rates in prior attorney fees awarded to any of the

attorneys.11 Relator has presented no evidence as to the hourly

rates in the Middle District of Florida. Defendants have cited

10 What an attorney charges clients “is powerful, and perhaps

the best, evidence of his market rate.” Dillard v. City of

Greensboro, 213 F.3d 1347, 1354-55 (11th Cir. 2000).

11 Although relevant, this factor would not be entitled to

controlling weight. Dillard, 213 F.3d at 1355.

to several awards by the undersigned to other attorneys (Doc. #24,

pp. 25-26), and offered the opinion of an expert witness. The

Court is itself considered an expert with regard to local hourly

attorney rates.

The Court finds that a rate of $400 an hour is appropriate

for Sanders and Branning, while $300 an hour is an appropriate

rate for Johnson. One exception will be applied: preparation of

the attorney fee application hours will be reduced to $300 an hour

for all counsel. The Court declines defendants’ invitation to

reduce the hourly rate for Sanders and Branning when they were

performing work a large law firm would normally assign to an

associate. Sanders is a sole practitioner, and Branning was with

a very small law firm. As long as each was performing legal work

(as opposed to, for example, clerical functions), each will be

awarded the hourly rate set forth above. Any adjustments needed

because of the less challenging nature of some of the legal work

will be accounted for in the number of hours allowed, not the

hourly rate.

(2) Reasonable Number of Hours

In determining the reasonable number of hours, the Court may

conduct an hour-by-hour analysis or it may reduce the requested

hours across the board, but not both. Bivins v. Wrap It Up, Inc.,

548 F.3d 1348, 1350 (11th Cir. 2008). The Court must eliminate

excessive, unnecessary, and redundant hours, and those which were

not reasonably expended. Hensley, 461 U.S. at 434; Norman, 836

F.2d at 1301-02. “Hours that are not properly billed to one's

client also are not properly billed to one's adversary pursuant to

statutory authority.” Hensley, 461 U.S. at 434 (citation

omitted). See also In re Home Depot, Inc., 936 F.3d at 1087 (“Time

spent is reasonable, and thus compensable, if it would be proper

to charge the time to a client.”) Conversely, there are hours

which are not reasonably billed to the adversary but are

compensable from the client. Dillard v. City of Greensboro, 213

F.3d 1347, 1356 (11th Cir. 2000) (“The retrospective futility of

work does not per se make it non-compensable. But it does cast

doubt on the reasonableness of requiring the other side to pay for

it.”) Thus, a relator must show that the hours are both

compensable and may properly be shifted to the opposing party.

Relator asserts that the reasonable number of hours expended

by his attorneys from June 3, 2010 through April 23, 2019 is a

total of 4,618.55 hours, with the following annual breakdown:

Year Hours

2010 1,272.50

2011 1,054.45

2012 316.60

2013 379.50

2014 396.30

2015 253.80

2016 230.90

2017 216.80

2018 344.40

2019 153.30

Total 4,618.55

(Doc. #13, p. 9; Doc. #13-4, pp. 1-96.) According to relator’s

Division of Labor chart (Doc. #13-8), the hours attributed to each

attorney are as follows:

Attorney Total Hours

Mr. Sanders 3771.35

Mr. Branning 479.8

Ms. Johnson 368.2

TOTAL 4619.3512

Relator seeks a lodestar attorney fee based upon the 4,618.55

hours.

As the party opposing the fee application, defendants have

“an obligation to identify the hours that should be excluded with

some degree of specificity.” Rodriguez v. Molena Healthcare,

Inc., 806 F. App’x 797, 804 (11th Cir. 2020)(citation omitted).

Defendants argue that the requested hours are “grossly excessive”

and “wildly inflated,” that many entries “appear to be outright

fictitious,” and that a number of the hours cannot be shifted as

a matter of law. (Doc. #24, pp. 7, 9, 17.) More specifically,

defendants challenge as unnecessary and unreasonable many of the

hours leading to the filing of the Complaint, the hours spent

preparing the attorney fee petition, the hours spent communicating

with Nurkin, the hours spent checking PACER, and the hours spent

12 The total from the Division of Labor chart is slightly

higher than the relator’s requested total of 4,618.55 hours because

the hours for 2018 in that chart are .8 hour more than from the

billing records summarized in relator’s prior chart at Doc. #13,

p. 9. The Court will use the 4,618.55 hours requested by relator.

checking the current stock price of defendant HMA. Defendants

challenge as fictitious the time entries relating to

talking/texting with Nurkin regarding updates, the stock checking

and PACER entries, and the hours spent at the Joshua Putter

criminal trial. Finally, defendants assert that, as a matter of

law, certain hours may not be recovered under a fee-shifting

statute, including time spent getting “up to speed” on the FCA,

time spent on the criminal case of Joshua Putter and convincing

the government that Nurkin had no criminal liability, time spent

negotiating Nurkin’s recovery share from the government, and

travel time from Mississippi to Florida and elsewhere. Defendants

recommend that a total of 750 hours be allowed. (Doc. #24-14, p.

2.) Defendants have submitted various charts collecting the hours

they believe should be disallowed. (Doc. #24-3 to Doc. #24-13.)

The Court finds it useful to examine the number of hours in

mostly chronological segments based upon the status of the case at

the time: (a) hours spent prior to the filing of the Complaint;

(b) hours spent after the Complaint was filed but prior to

intervention by the United States; (c) hours spent after the

government’s intervention through the settlement; and (d) hours

spent working on the application for attorney fees, expenses, and

costs. The procedural posture of the case helps the evaluation

of the necessity and reasonableness of the hours expended.

(a) Pre-Complaint Hours

The FCA, like many fee-shifting federal statutes, allows for

recovery of attorney hours reasonably expended on the litigation.

This includes some attorney services performed prior to the filing

of a complaint. “Of course, some of the services performed before

a lawsuit is formally commenced by the filing of a complaint are

performed ‘on the litigation.’ Most obvious examples are the

drafting of the initial pleadings and the work associated with the

development of the theory of the case.” Webb v. Bd. of Educ. of

Dyer County, Tenn., 471 U.S. 234, 243 (1985).

Nurkin claims a total of 1,441.55 hours (1,272.5 hours in

2010 and 169.05 hours in 2011) were worked by his attorneys in the

31 weeks between June 3, 2010 (when Nurkin spoke with Sanders about

bringing a claim against his former employer) and January 13, 2011

(the day before the Complaint was filed). (Doc. #13, p. 9; Doc.

#13-4, pp. 2-13.) Sanders explains that during this time period

he met and corresponded extensively with Nurkin in order to fully

understand the “complexity, nature, and severity of the fraud” and

to draft a complaint which would withstand legal challenges both

as to drafting sufficiency and Rule 11 sanctions. (Doc. #13-5,

¶¶ 21-26.)

Defendants assert that these hours were “grossly excessive”

and “wildly inflated,” and that no more than 300 hours should have

been spent on this stage of the case. (Doc. #24, pp. 9-10.) Using

defendants’ Index of Exhibits (Doc. #24-3) as an outline of the

bases for contesting the hours, the Court determines that during

this pre-Complaint time period the following contested hours in

the following categories will be allowed:

Defendant Description Contested Hours

Exhibit # Hours Allowed

1 Communications with 197.5 197.5

Client

2 Analyze Stock Prices 0.4 0.4

3 “T/c and text with None13 None

client re: updates/

status

4 Text re Ethics Rule None None

5 Check PACER None None

6 Putter Trial None None

7 Basic Qui Tam Research 763.314 200.0

8 Criminal Matters None None

9 Relator’s Share 7.415 0.0

10 Travel to/from Florida 15.5 0.0

Total 984.1 397.9

Defendants have objected to 197.5 hours spent communicating

with Nurkin prior to the filing of the Complaint as being

unreasonable. (Doc. #24-4, pp. 2-6.) After reviewing each time

13 The reference to “none” in this chart indicates there were

no hours attributed to the described conduct during this time

period.

14 The total hours in this category is actually 770.7 hours

on defendants’ chart (Doc. #24-10), but this total includes the

7.4 hours also contained in the Relator’s Share category (Doc.

#24-12). To avoid double counting, the Court has considered the

hours without the Relator’s Share category hours included.

15 In Nurkin’s Reply (Doc. # 26, p. 9, n. 9), he states that

Relator’s Share hours were included in the fee application in

error, and withdraws his request for those hours. The Court will

therefore disallow those hours in all time periods.

entry and the Sanders Declaration, the Court finds that these hours

were necessary and reasonable given the nature of the contemplated

cause of action and the underlying facts, and the need to

adequately develop a viable theory of the case. Nurkin, of course,

was the primary source of the needed information at this stage of

the proceedings.

Checking defendants’ stock price once at the beginning of the

case was both reasonable and de minimis. The Court will allow the

0.4 hours.

The 7.4 hours relating to Relator’s Share will be disallowed

for reasons set forth in footnote 15.

Defendants object to 763.3 hours billed to researching qui

tam matters during this period as being excessive. (Doc. #24-10,

pp. 2-9.) Defendants’ Exhibit 7 (Doc. #24-10) collects the time

entries in which Sanders and/or Branning billed for researching

basic legal principles of qui tam actions, which defendants

maintain should not be awarded against an opposing party. (Doc.

#24, p. 18.) The Court agrees that most of these research hours,

even if compensable, may not be shifted to the opposing party.

The FCA certainly has unique aspects not found in many federal

statutes. The time entries establish, however, that the research

concerning the FCA, the federal pleading requirements, and Rule 11

was far more than what an experienced attorney (such as both

Sanders or Branning) would have reasonably needed to provide

competent service in the pre-Complaint stage of this case.

Counsel’s research started at the ground floor (researching the

“FCA and how it works” and its elements), and simply went way

overboard. While Nurkins argues that the time spent on research

“was necessitated by HMA’s conduct,” doc. #26, p. 4, this is

clearly not true for this time period, before the Complaint was

even filed. The Court will allow 200 hours as a reasonable number

of hours for pre-Complaint qui tam research in a case of this

magnitude, and disallow the remaining 563.3 hours.

The 15.5 hours of travel time during this time period was for

Sanders to travel to Fort Myers to speak with Nurkin and Branning

and to file the Complaint. The Court will disallow all 15.5 hours.

Sanders had obtained local counsel in Fort Myers, and there has

been no showing of a need for Sanders to travel to Fort Myers to

file the Complaint or consult with his client or co-counsel.

In sum, plaintiff asserts his attorneys expended 1,441.55

hours during this time period (June 2, 2010 through January 13,

2011). Defendants objected to 984.1 of these hours, and therefore

457.45 hours were not specifically contested (1,441.55 hours minus

984.1 hours).16 The Court overrules defendants’ objections as

16 Defendants do argue that generally the uncontested hours

should be reduced by 74.5% in order to arrive at Mr. Albritton’s

opinion that “probably substantially less” than 1,000 total hours

should have been expended in this case. (Doc. #24-14.) The Court

declines to do so.

discussed above and will allow an additional 397.9 hours Thus,

the Court will allow a total of 855.35 hours during this 31-week

period (roughly 27 hours per week) to be included in the fee-

shifting under the FCA.

Hours Claimed 1,441.55

Uncontested Hours Allowed 457.45

Contested Hours Allowed 397.9

Total Hours Allowed 855.35

(b) After Complaint But Before Government Intervention

Between filing the Complaint on January 14, 2011, and

intervention by the United States on December 16, 2013, Nurkin

claims his attorneys expended 1,577 additional hours on the case.

Counsel expended 885.4 hours in 2011 after the Complaint was filed;

316.60 hours in 2012; and 375 hours in 2013 before the government’s

intervention. (Doc. #13-4, pp. 32, 44, 55.) According to Sanders,

during this time period,

Nurkin and his counsel began working

extensively with United States Attorneys and

federal investigators in Florida and

Washington, D.C. to explain and demonstrate

the complex web of improper conduct HMA had

spun in order to steal from the United States.

Nurkin’s counsel outlined to the authorities

the huge amount of money this fraud was

costing the United States taxpayers.

(Doc. #13, pp. 3-4.) See also Doc. #13-5, ¶¶ 34-36. Sanders

asserts that in 2011 and 2012, he spent many hours assisting

government agencies with the examination of hundreds of thousands

of pages of documents, doc. #13-5, ¶ 29, and in 2013 he continued

to assist the government to review documents, id. at ¶ 30.

Defendants object to over half of the 1,577 hours for various

reasons. Again, using defendants’ Index of Exhibits (Doc. #24-3)

as an outline of the bases for contesting the hours, the Court

determines that during this post-Complaint, pre-intervention time

period the following contested hours in the following categories

will be allowed:

Defendant Description Contested Hours

Exhibit # Hours Allowed

1 Communications with 406.717 351.7

Client

2 Analyze Stock Prices 5.6 0.0

3 “T/c and text with None18 None

client re: updates/

status

4 Text per Ethics Rule 6.3 0.0

5 Check PACER None None

6 Putter Trial None None

7 Basic Qui Tam Research 190.8 36

8 Criminal Matter Re: 235.2 0.0

Nurkin (Not Putter)

9 Relator’s Share 53.6 0.019

10 Travel to/from Florida 26.35 10.0

Total 924.55 397.7

17 The total hours in this category is actually 487.1 hours

on defendants’ chart (Doc. #24-4), but this also includes 6.3 hours

for Ethics Rule texts, 4.4 share hours, and 69.7 hours duplicated

in the criminal matter hours. In order to avoid double-counting,

the Court has considered the communication hours without these

hours included.

18 See footnote 13.

19 See footnote 15.

Defendants object to 5.6 hours during which Sanders analyzed

the HMA stock prices for the stated purpose of assessing HMA’s

ability to pay any future award and conveyed his assessment to

Nurkin. (Doc. #24-5, p. 2.) Sanders consistently billed .4 hour

to periodically analyze the stock prices for HMA, doing so on

fourteen occasions during this time period. (Id.) The Court

finds that all of these hours were unnecessary to Nurkin’s FCA

case, and cannot be shifted to the opposing party. The Court will

disallow the 5.6 hours.

Defendants challenge 6.3 hours in which Sanders asserts he

was texting his client “per Ethics Rule 1.4.” (Doc. #24-7, p. 2.)

Defendants point out that all nineteen texts were on a Saturday,

and all but one was for .3 hour. (Doc. #24, p. 14 n.16.) “Ethics

Rule 1.4” is apparently a reference to an attorney’s obligation to

keep a client reasonably informed about a matter, although neither

side identifies an actual Rule. The billing records amply

demonstrate multiple communications keeping Nurkin reasonably well

informed about the case, even when it was stayed and very little

was going on. The Court finds that these texts were unnecessary

and cannot be shifted to the opposing party. The Court will

disallow 6.3 hours.

During the course of deciding whether to intervene in Nurkin’s

qui tam case, the government began to see the potential for

criminal prosecutions, including Nurkin and Joshua Putter. A

criminal investigation of Nurkin was begun by the U.S. Attorney’s

Office in Fort Myers. This investigation did not conclude until

shortly before the government decided to intervene in Nurkin’s qui

tam case. Defendants object to 235.2 hours spent in connection

with Nurkin’s defense of the government’s criminal investigation.

(Doc. #24-11, pp. 2-4; Doc. #24, pp 18-19.)

There is no question that Nurkin was entitled to be

represented by counsel in connection with the government’s

criminal investigation, and that the hours expended by Sanders

were compensable. The hours expended defending the criminal

investigation of Nurkin may not, however, be shifted to a defendant

in the qui tam action. “Time expended independent of the relevant

federal litigation is not compensable.” Loranger, 10 F.3d at 782.

Like Title VII of the Civil Rights Act, the FCA does not envision

reimbursement for legal work done in criminal cases. Mayson v.

Pierce, 806 F.2d 1556, 1558 (11th Cir. 1987). Accordingly, the

Court will disallow all 235.2 hours expended in connection with

the potential criminal prosecution of Nurkin.

The Relator’s Share 53.6 hours will be disallowed for reasons

set forth in footnote 15.

Defendants object to 26.35 hours for travel to and from

Florida during this time period (Doc. #24-13, p. 2) because

competent FCA attorneys were available in Florida. (Doc. #20, p.

20.) The Court disallows the 3.75 travel hours on January 14,

2011 because, as stated in the pre-Complaint discussion, there was

no need for Sanders to travel to Florida. The Court allows the

10.0 hours in March 2011 to meet with the AUSA in Tampa concerning

the qui tam investigation. The meeting was clearly in furtherance

of the underlying qui tam action and Sanders’ presence was

necessary. The Court disallows the 6.5 travel hours on October

9, 2013, because it involved activities in connection with the

defense of Nurkin in the criminal investigation. The Court

disallows the 6.1 travel hours on October 24-25, 2013 because it

involved meeting with the AUSA conducting the criminal

investigation of Nurkin. In sum, the Court disallows 16.35 hours

and allows 10.0 hours of the travel in this period of time.

Defendants object to 190.8 hours of additional qui tam

research during this time period. (Doc. #24-10, pp. 9-11.) The

Complaint had been sealed and not served on defendants, and the

case was stayed, but Sanders decided to work on the qui tam case

just in case the government did not intervene. (Doc. #13-5, ¶

28.)20 Sanders researched discovery procedures if the government

did not intervene (28.7 hours), potential discovery issues,

requests for discovery, and prepared for asserting privileges

(79.1 hours) as well as the consolidation with similar cases and

20 This was despite the notation in the contingent fee

Contract that Nurkin did not want the case to proceed if the

government did not intervene.

first to file issues (32.8 hours). (Doc. #24-10, pp. 9-11.)

Additionally, Sanders researched various criminal issues

(approximately 47 hours), such as the crime-fraud exception to the

attorney client privilege and considerations in testifying before

a grand jury in Boston. The Court finds that the civil hours

expended for discovery research to have been unnecessary and, in

the end, wasted activity, and finds the hours related to the

criminal investigation are not properly shifted to defendants.

The Court disallows 154.8 hours, and allows the remaining

miscellaneous hours (3.2 hours) and 32.8 of the hours expended to

determine the impact of consolidation and the “first to file”

issue, for a total of 36 hours for additional qui tam research.

Finally, defendants object to 406.7 of the hours the attorneys

spent communicating with Nurkin during this time period. (Doc.

#24-4, pp. 6-18.) Of these hours, the Court finds that 55 hours

relating to development of a discovery plan, work on

interrogatories and initial disclosures, and preparation of an

outline in the event of no intervention were excessive and

unnecessary. The rest of the hours relate to normal activities

between Nurkin and his attorneys as the government proceeds with

Nurkin’s case and the other MDL cases. The Court will therefore

allow 351.7 hours.

In sum, plaintiff asserts his attorneys worked for 1,577 hours

during this time period (January 14, 2011 through December 16,

2013). Defendants objected to 924.55 of these hours, and

therefore 652.45 hours were not specifically contested (1,577

hours minus 924.55).21 The Court sustains defendants’ objections

to 526.85 of the contested hours. Therefore, the Court will allow

397.7 hours (plus the 652.45 uncontested hours) for a total of

1,050.15 hours to be included in the fee-shifting under the FCA.

For the 152 weeks in this time period, this equates to about 7

hours per week attributable to the qui tam action.

Hours Claimed 1,577

Uncontested Hours Allowed 652.45

Contested Hours Allowed 397.7

Total Hours Allowed 1,050.15

(c) After Government Intervention (Excluding Attorney Fee

Application)

The government intervened on December 16, 2013, and the case

was remanded to Fort Myers on April 2, 2020 after settlement.

Between December 16, 2013 through April 23, 2019 (the end of

relator’s submitted billing records) Nurkin’s attorneys expended

1,601.4 additional hours, which includes 457.8 hours attributed to

preparation of the attorney fee application. The Court addresses

the hours not related to the preparation of the attorney fee

application (1,143.6 hours) in this section. Sanders represents

that during this time period he and Nurkin continued their

extensive assistance to the government as it prosecuted HMA

21 See footnote 16.

officers and negotiated the share of recovery Nurkin would receive.

(Doc. #13-5, ¶¶ 31, 35-42.)22

Defendants object to a large number of these hours for various

reasons. Again, using defendants’ Index of Exhibits (Doc. #24-3)

as an outline of the bases for contesting hours, the Court

determines that during this post—intervention time period the

following contested hours in the following categories will be

allowed:

Defendant Description Contested Hours

Exhibit # Hours Allowed

1 Communications with 111.523 111.5

Client

2 Analyze Stock Prices 7.2 0.0

3 “T/c and text with 338.6 18.8

client re: updates/

status

4 Text per Ethics Rule None24 None

5 Check PACER 18.9 4.2

6 Putter Trial 47.5 0.0

7 Basic Qui Tam Research 104.8 104.8

8 Criminal Matter Re: 244.7 0.0

Putter

22 The Court suspects that plaintiff’s expert misspoke as to

the last portion of the sentence in his report which stated that

“the record is clear Sanders Law’s efforts did not cease and were

not needed once the government assumed primary responsibility for

prosecuting Relator Nurkin’s case.” (Doc. #13-1, p. 15.)

23 The total amount of hours for this time period is actually

552.7 on defendant’s chart (Doc. #24-4). However, included in

these hours are the same 338.6 text hours, 32.1 of share hours,

and 70.5 hours attributable to the criminal matter (not Putter)

and also the Putter trial listed in other charts. In order to

avoid double-counting, the Court has considered the communication

hours without these hours included.

24 See footnote 13.

9 Relator’s Share 57.2 0.025

10 Travel to/from Florida 6.8 0.0

Total 937.2 239.3

Defendants object to the 7.2 hours in which Sanders analyzed

the stock prices for HMA to see if a judgment against HMA would be

collectable. (Doc. #24-5, p. 2.) As stated previously, the Court

finds that these hours were unnecessary and cannot be shifted to

the opposing party. The Court will disallow 7.2 hours.

Defendants object to 188 entries, totaling 338.6 hours,

beginning January 4, 2015 and stating “T/C’s and texts with client

re: updates/status.” (Doc. #24-6.) There are no further

descriptions of the nature or content of the communications.

While defendants doubt that many of these actually occurred, they

also argue that the time is excessive. (Doc. #24, pp. 13-15.)

The Court assumes that the contacts did occur, but finds that there

is nothing in the billing records or Declarations which would

justify more than the usual .1 hour for a routine update to a

client about a case which has been stayed. This is especially so

in light of the vast number of hours otherwise attributed to

communication with Nurkin. Therefore, the Court allows 18.8

hours, and disallows 319.8 hours.

Defendants object to 18.9 hours spent by Sanders checking

PACER reports during this time period. (Doc. #24-8.) These

25 See footnote 15.

occurred monthly from September 2014 through December 2015, and

then again from January 2017 through April 2017. These checks of

PACER reports were “to ascertain existence of any new filings;

compare and contrast with existing filings and notify client of

developments.” There was very little activity in terms of the

court file, and the .9 hour per event is excessive. The Court

reduces this time to .2 hour per activity, and will allow 4.2 hours

and disallow 14.7 hours.

In this time period, the criminal aspects of the government’s

investigation had moved away from Nurkin and focused on Joshua

Putter. Sanders states that during 2014, he and Nurkin began

assisting the government with the preparation for the Putter trial.

(Doc. #13-5, ¶ 31.) Sanders asserts that in 2014, 2015, and 2016

there were numerous calls and letters with regard to the criminal

investigation, and Nurkin’s likely testimony in the Putter trial.

(Id., ¶ 37.)

Two categories of defendants’ objections relate to the Putter

criminal investigation and trial. First, Sanders expended 47.5

hours in October 2014 to attend five days of Putter’s federal

criminal trial in Fort Myers, Florida. Each of his five time

entries read: “Attend Putter trial; post-trial meetings with

Nurkin to discuss updates and progress of trial,” and each billed

9.5 hours. (Doc. #24-9.) Second, Sanders expended a total of

244.7 hours concerning Putter-related criminal matters, including

the 47.5 hours Sanders spent at the Putter trial. (Doc. #24-11.)

On October 3, 2013, Joshua S. Putter was named in a one-count

Indictment (Case No. 2:13-cr-141-JES-CM, Doc. #3). On December

18, 2013, a Superseding Indictment (id., Doc. #18) charged that on

October 7, 2008, Putter did knowingly falsify or make a false entry

in a letter to the Chief Executive Officer of C.R.M.C. with the

intent to impede, obstruct, or influence the investigation and

proper administration of any matter within the jurisdiction of the

United States Department of Health and Human Services, Office of

Inspector General. A copy of the offending letter was provided

in a Bill of Particulars. (Id. at Doc. #41.) Nurkin was named

as one of 61 witnesses in the government’s Witness List (id. at

Doc. #79), but was not called as a witness at the trial. After a

twelve-day jury trial before the undersigned, Putter was found not

guilty on November 13, 2014. (Id. at Doc. #113.)

Defendants argue that none of this time is compensable because

Putter’s criminal trial did not advance the civil case against

HMA, and Putter was not charged with an FCA violation. Further,

Putter was acquitted and Nurkin was never called as a witness.

(Doc. #24, pp. 18-19.) Although the verdict is not attributable

to Nurkin, “[t]ime expended independent of the relevant federal

litigation is not compensable” Loranger, 10 F.3d at 782, and a

typical fee-shifting statute such as the FCA does not envision

reimbursement for legal work done in criminal cases. Mayson, 806

F.2d at 1558. The court disallows all 244.7 hours (which includes

within it the 47.5 hours of trial attendance) as being improper to

shift to the FCA defendant.

Defendants object to 104.8 hours of qui tam research conducted

during this time period. (Doc. #24-10, pp. 11-12.) These hours

related to specific qui tam issues that had arisen. Many of these

hours overlap with other categories, including attorney fees,

relators share, which are already disallowed, and the “criminal

aspect” of the civil case. Upon review, the Court declines to

disallow other hours.

Defendants object to 6.8 hours for travel to and from Florida

in connection with the Putter trial. (Doc. #24-13.) Since time

spent in connection with the criminal investigation of Putter may

not be shifted to the opposing party, the Court disallows these

6.8 hours.

Defendants have objected to 111.5 hours of billed time

involving communications between Nurkin and his attorneys. (Doc.

#24-4, pp. 19-29.) The duplicated hours were disallowed from

other categories, e.g., criminal matters, Putter investigation and

trial, share hours. The Court declines to disallow other hours.

In sum, plaintiff asserts his attorneys worked for 1,601.4

hours during this time period (December 16, 2013 through April 23,

2019). Defendants objected to 937.2 of these hours, and therefore

206.4 hours were not specifically contested (1,143.6 hours minus

937.2).26 The Court sustains defendants’ objections to 697.9 of

the contested hours. Therefore, the Court will allow 239.3 hours

to be included in the fee-shifting under the FCA.

Hours Claimed 1,143.6

Uncontested Hours Allowed 206.4

Contested Hours Allowed 239.3

Total Hours Allowed 445.7

(d) Hours Related to Attorney Fees, Expenses, Costs Motion

Nurkin also seeks attorney fees for the time his attorneys

expended on preparation of the attorney fee application motion and

supporting documents. (Doc. #13, pp. 12-13.) Defendants do not

object to the principle that “fees for fees” are recoverable, but

do object to the number of hours and amount sought.

“Like other courts, we have allowed parties to recover the

cost of establishing their right to, and the amount of attorney's

fees—the right to fees-on-fees.” Norelus v. Denny's, Inc., 628

F.3d 1270, 1301 (11th Cir. 2010). The Court concludes that this

principle applies to the fee-shifting statute contained in the

FCA, and Nurkin is entitled to recover reasonable attorneys fees

for time expended on the preparation of the fee application and

supporting documents.

Nurkin asserts that his attorneys spent 457.8 hours preparing

the fee application and supporting documents in 2017, 2018, and

26 See footnote 16.

2019. (Doc. #13-6, p. 2.)27 Using the combined information from

two of Nurkin’s charts results in the following breakdown of hours

relating to the preparation of the attorney fee application:

Year Sanders Johnson Total

2017 27.0 80.4 107.4

2018 11.5 185.6 197.1

2019 51.1 102.2 153.3

Total 89.6 368.2 457.8

(Doc. #13-6, p. 2; Doc. #13-8, pp. 2-3.) Thus, at the $300 per

hour rate the Court has found reasonable for this type of task,

Nurkin seeks $137,340 to prepare the attorney fee application and

supporting documents.

Sanders started working on the fee application on May 15,

2017 (Doc. #24-10, p. 12), but soon realized he needed the help of

another attorney and retained Johnson in August 2017. (Doc. #13-

4, p. 84; Doc. #13-5, ¶¶ 43, 45.) Sanders states that Johnson’s

“engagement was necessary and required for me to appropriately

prepare a complete and accurate 8-year bill record to submit for

recovery, as outlined in the FCA.” (Id.) It is clear that Johnson

was not reviewing contemporaneous billing records, but was

creating billing records from numerous documents provided by

Sanders. The result was that this process took a grossly excessive

amount of time.

27 In his Memorandum, Nurkin stated he would “detail this time

in a subsequent filing with this Court once fully realized.” (Doc.

#13, p. 13.) Nothing has been filed in the subsequent nine months.

Prior to filing the qui tam action, Sanders conducted over 16

hours of research regarding the availability of attorney fees under

the FCA. (Doc. #24-10, pp. 3-4.) Sanders must have encountered

cases addressing the lodestar and its calculation and the

importance of contemporaneous recordkeeping. Despite this,

Sanders did not keep contemporaneous records sufficient to

establish the number of hours he expended and the tasks performed.

The Court finds that it cannot shift the resulting inefficiency to

defendants. In the Court’s view, the reasonable amount of time

to prepare the attorney fee application and supporting documents

in this case with adequate records would have been approximately

40 hours. The Court allows 40 hours and disallows the remainder

of the time as excessive.

(3) Lodestar Fee Adjustment and Multiplier

“[T]here is a ‘strong presumption’ that the lodestar figure

is reasonable, but that presumption may be overcome in those rare

circumstances in which the lodestar does not adequately take into

account a factor that may properly be considered in determining a

reasonable fee.” Perdue, 559 U.S. at 553–54. See also Murphy,

138 S. Ct. at 789. “To warrant a multiplier, the fee applicant

must produce “specific evidence” that an enhancement is necessary

to provide a reasonable fee.” In re Home Depot Inc., 931 F.3d

1065, 1082 (11th Cir. 2019) (citing Perdue, at 553).

The Court finds that the lodestar calculation takes into

account all factors which may be properly considered in this case

for determination of a reasonable attorney fee. Neither a fee

adjustment nor use of a multiplier is warranted in this case.

(4) Interest on Attorney Fees

Nurkin seeks interest on the attorney fees to be paid by HMA

“from the date Nurkin became a successful relator.” (Doc. #13,

p. 13.) This apparently occurred on October 22, 2018, when Sanders

signed the Joint Stipulation of Dismissal. (Doc. #13-5, ¶ 33.)

Neither side provides any law for the imposition of pre-judgment

interest on an attorney fee award under a federal fee-shifting

statute.

Florida law requires the imposition of prejudgment interest

on an award of attorney fees. Quality Engineered Installation,

Inc. v. Higley S., Inc., 670 So. 2d 929, 931 (Fla. 1996). Since

the claim in this case was not based on Florida law, however, this

line of cases is not controlling. As a magistrate judge in the

Southern District of Florida recently stated, “[t]he undersigned

could find no federal authority for awarding prejudgment interest

on attorneys’ fees.” Ortiz v. Sch. Bd. of Broward County, Florida,

18-60209-CIV, 2020 WL 1361486, at *4 (S.D. Fla. Jan. 13, 2020),

report and recommendation approved, 18-60209-CIV, 2020 WL 4926581

(S.D. Fla. Apr. 24, 2020). The Court declines to award pre-

judgment interest on the attorney fees (or expenses and costs)

awarded in this case.

(5) Who Gets the Money?

While the fee motion and its Memorandum and Reply are not

clear on the issue, it appears that Nurkin believes that any of

the attorney fees, costs, or expenses belong to Sanders, in

addition to what Sanders has received pursuant to the contingent

fee Contract. This is certainly the way defendants read relator’s

papers. (Doc. #24, p. 30 n.32.) In this case, however, that view

is incorrect.

To be sure, there are situations when an attorney is entitled

to the amount agreed upon in a contingent fee agreement plus the

amount awarded pursuant to a fee-shifting statute. For example,

a relator may prevail, but the recovery is so humble that the

resulting percentage does not result in a reasonable attorney fee.

In such a situation, counsel would be entitled to some or all of

the shifted attorney fees in order to accomplish a reasonable

attorney fee. Thus, the Supreme Court has held that a contingent

fee agreement does not impose a ceiling of the recovery of an

attorney fee. Blanchard, 489 U.S. at 93-94.

This is not one of those situations. By all accounts, the

recovery made by the government attributable to Nurkin’s case was

excellent. The resulting dollar amount of Nurkin’s share was

substantial enough to result in a contingent attorney fee which

was ample and did not need to be supplemented to arrive at a

“reasonable” amount. Therefore, the amount awarded as shifted

attorney fees, expenses, and costs belong to Nurkin.

Both Sanders and Nurkin have stated that the contingency fee

Contract assigned any recovery of attorney fees to Sanders. (Doc.

#13-5, ¶ 20; Doc. #13-5, p. 16.) This is clearly incorrect.

Nothing in that Contract (Doc. #13-3) assigns attorney fees to

Sanders or any one else. Nurkin filed a Declaration stating he

“hereby assigns” the attorney fees to Sanders, and that he has

acquired other obligations to Sanders. (Doc. #13-5.) Nothing in

the Declaration suggests that the “hereby assigns” language

creates a binding assignment. If Nurkin owes Sanders fees for

services not encompassed by the FCA representation, then obviously

he may use any of his resources, including these awarded fees, to

pay his obligations. However, this award of attorney fees does

not belong to Sanders, but to Nurkin, as the relator. See 31

U.S.C. § 3730(d) (“Any payment to a [qui tam plaintiff28] shall be

made from the proceeds. Any such person shall also receive an

amount for reasonable expenses which the court finds to have been

necessarily incurred, plus reasonable attorneys' fees and

costs.”).

28“Section 3730(b) allows a private plaintiff, known as a

relator, to bring a qui tam action in the name of the United States

against a violator.” Cochise, 887 F.3d at 1086.

In the exercise of its discretion based on the reasonable

hourly rates and reasonable number of hours discussed above, the

Court awards attorney’s fees totaling $952,480.

Time Period Total Hours Total Hours Total Fees

Claimed Allowed

Pre-Complaint 1,441.55 855.35 $342,140

($400/h)

Post Complaint, 1,577.0 1,050.15 $420,060

Pre-Intervention

($400/h)

Post Intervention 1,143.6 445.7 $178,280

($400/h)

Attorney Fee 457.8 40 $12,000

Application

($300/h)

Total 4,619.95 2,391.2 $952,480

V.

The Relator also seeks to recover costs and expenses of

$14,730.30. (Doc. #13-5, ¶ 47; Doc. #13-12, pp. 2-3.) Defendants

suggest that reasonable expenses are $6,869.70. (Doc. #24-15,

Exh. 12.) Defendants’ view is more generous than the Court’s, so

the Court will award the amount agreed-to by defendants.

Relator seeks $360 as reimbursement of the filing fee. The

Court will allow $350 for the filing fee29 and $13.00 for certified

mail as taxable costs under 28 U.S.C. § 1920(1).

Relator seeks travel expenses of $1,068.48 for a January 14,

2011 for a trip to Fort Myers to file the Complaint. The Court

29 Counsel requests $360 for the filing fee, but the filing

fee in 2011 was only $350.

previously found this trip unnecessary, and declines to allow these

as reasonable expenses.

Relator seeks reimbursement of $2,449.77 expenses for a March

15, 2011, trip in which Sanders flew to Tampa for a relator

interview with an AUSA concerning the qui tam action. The Court

will allow this travel expense, with one exception. Without

receipts or an explanation, the Court finds that over $500 for

meals for a one-day trip based on the billing records (Doc. #13-

4, p. 19) is excessive. The Court will allow the airfare, lodging,

car rental, parking, meals of $150, for a total of $2,086.77.

On October 27, 2011, Sanders flew to D.C. to meet with the

Department of Justice, Health and Human Services, and the Federal

Bureau of Investigations for an interview of Nurkin. Sanders

returned to Mississippi on October 29, 2011. (Doc. #13-4, p. 30.)

The Court will reduce the meals to $300, and otherwise allow the

expenses. The Court will allow a total of $1,870.00.

Nurkin seeks expenses of $1,269.38 for Sanders’ travel on

July 25, 2012, to Boston for grand jury proceedings, and to prepare

Nurkin’s testimony. Sanders returned on July 29, 2012. (Doc.

#13-4, p. 42.) These proceedings were presumably related to

Nurkin’s potential testimony in the Joshua Putter case, or at least

some criminal case, the travel was unrelated to the advancement of

the FCA civil case. The Court will not allow these expenses.

Nurkin seeks expenses of $1,056.07 for Sanders’ travel on

October 9, 2013, to Florida to consult with Peter Ringsmuth and

Ms. Burby as Nurkin’s criminal defense attorneys, and returned the

same day. (Doc. #13-4, p. 53.) The Court will disallow these

expenses relating to potential criminal charges.

Nurkin seeks expenses of $1,620.67 for Sanders’ travel on

October 23, 2013, to Atlanta and Fort Myers for a meeting with

Nurkin and Ms. Burby. Sanders also attended a meeting with DOJ,

and returned to Mississippi on October 25, 2013. Since these

meetings appear to be concerning criminal matters, the Court will

disallow all these expenses.

The Court will not allow the October 26, 2014, expenses of

$1,645.61 for travel to Fort Myers for Putter’s trial. Not only

was there a local attorney for the civil case, but Nurkin also had

criminal counsel locally and Nurkin did not testify.

Therefore, the Court will allow $363 in taxable costs, plus

expenses of $6,869.70, as suggested by defendants, for a total of

$7,232.70 in costs and expenses.

Accordingly, it is hereby

ORDERED:

The Relator's Motion for Award of Attorney Fees, Costs, and

Expenses (Doc. #12) is GRANTED in part. Bradley Nurkin is awarded

$952,480 in attorney fees, $363 in taxable costs, and $6,869.70 in

expenses against defendants Health Management Associates, Inc.,

Charlotte HMS, LLC and Punta Gorda HMA, LLC, jointly and severally.

The Clerk shall enter judgment in favor of relator and against

defendants accordingly.

DONE and ORDERED at Fort Myers, Florida, this 8th day of

February, 2021.

9 m= (>of 0

VAM Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record