The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DAVID POSCHMANN,
Plaintiff,
v. Case No: 5:20-cv-227-JSM-PRL
UNIFIED ENTERPRISES, LLC,
Defendant.
ORDER
Before the court are two discovery matters: (1) the attorney’s fees to be awarded to
Plaintiff pursuant to the court’s order on his motion to compel (Doc. 33), and (2) Plaintiff’s
motion for contempt, attorney’s fees, and sanctions due to the defendant’s failure to comply
with this court’s Order. (Doc. 37). The court will discuss each in turn.
1. Attorney’s Fees
On March 30, 2021, the court granted Plaintiff’s motion to compel and ordered
Defendant to pay to the plaintiff the reasonable attorney’s fees and expenses incurred in
preparing and filing the motion. (Doc. 33). The court directed the plaintiff to file an affidavit
supporting the request for fees and expenses and permitted the defendant to file a response in
opposition ten days thereafter. As directed, Plaintiff filed the Affidavit of Attorney Drew M.
Levitt. (Doc. 34). Defendant filed a response in opposition and disputes the number of hours
the plaintiff’s attorney worked on the motion. (Doc. 41).
While Plaintiff has a right to attorney’s fees incurred, the court has a corresponding
duty to ensure that such an award is reasonable. In determining a reasonable attorney’s fee,
the Court applies the federal lodestar approach, which is calculated by multiplying the number
of hours reasonably expended on the litigation by the reasonable hourly rate for the services
provided by counsel for the prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.
1994). “[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). Once the court has determined the lodestar, it may adjust the amount
upward or downward based upon a number of factors, including the results obtained. Norman
v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).
“Ultimately, the computation of a fee award is necessarily an exercise of judgment,
because ‘[t]here is no precise rule or formula for making these determinations.’” Villano v. City
of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 436). The
Court is “an expert on the question [of attorney’s fees] 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.” Norman, 836 F.2d at 1303
(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)).
Defendant only challenges the hours expended on the motion. The attorney fee
applicant should present records detailing the amount of work performed and “[i]nadequate
documentation may result in a reduction in the number of hours claimed, as will a claim for
hours that the court finds to be excessive or unnecessary.” Rowe, 472 So.2d at 1150. Then, the
fee opponent “has the burden of pointing out with specificity which hours should be
deducted.” Rynd v. Nationwide Mut. Fire Ins. Co., No. 8:09-cv-1556, 2012 WL 939387, at *3
(M.D. Fla. Jan. 25, 2012) (quoting Centex-Rooney Const. Co., Inc. v. Martin Cty., 725 So.2d 1255,
1259 (Fla. 4th DCA 1999). Attorneys “must exercise their own billing judgment to exclude
any hours that are excessive, redundant, or otherwise unnecessary.” Galdames v. N&D Inv.
Corp., 432 F. App’x 801, 806 (11th Cir. 2011). A court may reduce excessive, redundant, or
otherwise unnecessary hours, or may engage in “an across-the-board cut,” as long as the court
adequately explains its reasons for doing so. Id.
Plaintiff’s attorney, Mr. Levitt, spent 5.6 hours working on the motion and is seeking
$350 an hour. (Doc. 36-1). The hours consist of 1.4 hours calling Mr. Homich, the defendant’s
attorney, leaving voicemails, and drafting and reviewing emails about the discovery motions;
2.5 hours researching and drafting the motion; .5 hour reviewing the court’s orders and the
defendant’s responses; and 1.2 hours emailing Mr. Homich about the discovery motion and
drafting a supplement to the motion to compel. Plaintiff seeks a total of $1,960.00 for
preparing the motion and related work. (Doc. 36-1).
The court finds that 5.6 hours are a reasonable number of hours expended for
preparing the motion, under the circumstances. Mr. Levitt spent a significant amount of time
attempting to confer with Mr. Homich about the discovery issues in an effort to avoid filing
the motion to compel. Additionally, having considered the experience of counsel, the location
of the practice, and the court’s knowledge of market rates in the Ocala Division, the court
agrees that the requested hourly rate of $350.00 is appropriate.
Accordingly, within ten days of this Order, Defendant shall pay to Plaintiff $1,960.00
which represents the reasonable attorney’s fees and expenses incurred in the preparation and
filing of the Plaintiff’s motion to compel.
2. Plaintiff’s Motion for Contempt, Attorney’s Fees, and Sanctions
On March 30, 2021, the court granted Plaintiff’s motion to compel and ordered the
defendant to produce all requested discovery documents on or before April 5, 2021 and
ordered the parties to confer about scheduling the inspection about the defendant’s property.
(Doc. 33). Plaintiff now claims that the defendant has failed to comply with the court’s order.
(Doc. 37).
Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), the court may issue an order
awarding sanctions if, when as here, a party fails to obey an order to provide or permit
discovery. Accordingly, the court finds that sanctions are appropriate.
On March 26, 2021, the defendant responded to the court’s order to show cause and
noted that it anticipated providing the requested discovery documents within the next 10 days.
(Doc. 29). Taking the defendant’s statement into account, the court ordered the defendant to
provide the requested documents on or before April 5, 2021. (Doc. 33). Defendant claims it
provided all of the discovery on March 27, 2021 with the exception of the requested bank
statements. (Doc. 40). Plaintiff’s attorney, Mr. Levitt, asserts that he attempted to reach
Defendant’s attorney, Mr. Homich, ten times between March 31, 2021 and April 7, 2021 to
discuss the outstanding discovery requests. (Doc. 37). Mr. Homich provided several reasons
as to why he did not timely respond to Mr. Levitt: he was on vacation, he became ill, he had
to assist his mother with a medical visit, and the internet was not functioning. (Doc. 40). Mr.
Homich provided the remaining bank statements on the first day he was able to do so.
While the court understands that unexpected events arise, the parties should strive to
communicate about these events in order to avoid unnecessary motions practice. Plaintiff
requests that the defendant be barred from asserting any defenses on Plaintiff’s claims
involving Defendant’s finances. However, a blanket bar on the defendant’s ability to assert
any defenses on claims involving its finances is not warranted at this time. Instead, the court
will require the defendant and Mr. Homich to pay the plaintiff’s attorney’s fees and costs
incurred in preparing the instant motion.
As to the inspection of Defendant’s premises, Mr. Homich has requested that the
inspector either be vaccinated for COVID-19 or show proof of a negative test taken within 24
hours of the inspection. Additionally, Mr. Homich told Mr. Levitt that if the defendant
received any bookings for the proposed inspection date, they would have to reschedule. After
considering these conditions, Mr. Levitt agreed that the expert would be tested within one
week of the inspection, and that all parties would wear masks and social distance during the
inspection. Mr. Levitt would not agree to retaining an expert for an inspection with the risk
of having it rescheduled if the defendant received a booking. The court agrees with these
proposed conditions.
Accordingly, within ten days of this Order, the parties shall confer to schedule an
inspection. The defendants should not accept bookings on the date of the inspection for the
rooms that will be inspected. Mr. Levitt has agreed to have the expert be tested for COVID-
19 within one week of the inspection, and that all parties attending the inspection would wear
masks and social distance. No additional conditions should be placed on the inspection.
Local Rule 3.01(g) provides that “[b]efore filing a motion in a civil action, except a
motion for injunctive relief, for judgment on the pleadings, for summary judgment, or to
certify a class, the movant must confer with the opposing party in a good faith effort to resolve
the motion.” The purpose of Local Rule 3.01(g) “is to require the parties to communicate and
resolve certain types of disputes without court intervention.” Desai v. Tire Kingdom, Inc., 944
F. Supp. 876, 878 (M.D. Fla. 1996). Further, the term “communicate” has been defined as
“to speak to each other in person or by telephone, in a good faith attempt to resolve disputed
issues.” Davis v. Apfel, No. 6:98-CV-651-ORL-22A, 2000 WL 1658575 at n. 1 (M.D. Fla. Aug.
14, 2000). The court expects counsel to comply with both the letter and spirt of Local Rule
3.01(g). The parties exchanged many emails but did not specify that they ever spoke in person
or by telephone to resolve the disputed issues.
Moreover, the parties are reminded that “[d]iscovery in this district should be practiced
with a spirit of cooperation and civility. The district’s attorneys and the court are justifiably
proud of the courteous practice that is traditional in the Middle District.” Middle District
Discovery (2015) at 3. Cooperation, courtesy, civility—these ideals should be strived for by
all parties, even the parties here, on both an individual and a collective basis. Being
cooperative, courteous, and civil doesn’t mean that parties can’t be adversarial, or attorneys
anything less than zealous advocates.
Generally, as the comments to the 2015 Amendment acknowledge, “discovery will be
effectively managed by the parties.” Id. As the comments also acknowledge, however, “there
will be important occasions for judicial management, both when the parties are legitimately
unable to resolve important differences and when the parties fall short of effective, cooperative
management on their own.” Id. Here, a simple phone call may have resolved the issues
regarding the inspection and the delay in providing the financial documents.
Accordingly, Plaintiff’s motion (Doc. 37) is granted to the extent that Defendant shall
promptly schedule an inspection of its property in accordance with this Order and Mr.
Homich and the defendant shall pay all costs and fees incurred by Plaintiff in making the
instant motion.
Within ten days, Plaintiff should file the appropriate motion to collect expenses under
Rule 37(b)(2)(C), and Defendant may file a response within seven days thereafter.
DONE and ORDERED in Ocala, Florida on April 21, 2021.
PHILIP R. LAMMENS
United States Magistrate Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties
_7-