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

> District Court, M.D. Florida · February 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10106883

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 8, 2021
- **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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106883. Public record. Not legal advice.