Adonizio v. Credit Control Services, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

PATRICK ADONIZIO,

Plaintiff,

Vv. Case No. 6:21-cv-144-JA-DAB

CREDIT CONTROL SERVICES,

INC.,

Defendant.

ORDER

Although the Supreme Court has cautioned 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 indeed has occurred in this case. The parties resolved

the merits of this Fair Debt Collection Practices Act action in March 2022

through an accepted offer of judgment that provided that the judgment to be

entered “shall include reasonable attorneys’ fees and costs incurred by Plaintiff

as allowed by the Court pursuant to this offer.” (Doc. 26-1 at 2). But both before

and since then, the parties have been fighting about what amount of attorney’s

fees is reasonable. As explained in this Order, the Court determines that that

amount is $8,895.00—far less than the $45,000.00 requested by Plaintiff.

L Background

This acrimonious litigation began with a $93.31 bill for medical laboratory

work. (See Compl., Doc. 1, § 12). Although Plaintiff apparently paid that bill,

beginning in February 2020 Defendant repeatedly sent Plaintiff dunning letters

attempting to collect payment from him. (See id. 4 13-18). Eventually, in June

2020, Defendant reported adverse credit information to credit reporting

agencies, (see id. § 19), and this inaccurate information allegedly affected

Plaintiffs ability to obtain favorable rates on a mortgage and mortgage

insurance, (see id. 4] 22-23).

Plaintiff filed this lawsuit in January 2021 under the federal Fair Debt

Collection Practices Act (FDCPA) and the Florida Consumer Collection

Practices Act (FCCPA), both of which allow for recovery of actual damages,

statutory damages of up to $1,000.00, and reasonable attorney’s fees and costs.

See 15 U.S.C. § 1692k(a) (FDCPA); § 559.77(2), Fla. Stat. (FCCPA). The

Complaint alleged that Plaintiff had “suffered significant actual damages,”

(Compl. 4 24), including the higher mortgage-related costs.

The parties mediated the case on January 31, 2022, but did not resolve it

at that time. (See Mediator’s Notice of Impasse, Doc. 23). Two months later,

Plaintiff accepted an offer of judgment from Defendant—after having rejected

two other offers made since the mediation. (See Doc. 39-1). The accepted offer

provided for entry of judgment against Defendant in the amount of $1,001.00 on

the FDCPA claim, plus $1,001.00 on the FCCPA claim, plus $448.00 in actual

damages—a total of $2,450.00 in damages— and provided that “[t]he Judgment

shall include reasonable attorneys’ fees and costs incurred by Plaintiff as

allowed by the Court.” (d. at 16).

The day after Plaintiff filed his Notice of Accepted Offer of J udgment (Doc.

26), the assigned magistrate judge ordered the parties to mediate the issue of

fees and costs. (See Order, Doc. 28). But Plaintiff then filed a Motion to Amend

the Court’s Mediation Order (Doc. 29), seeking relief from the mediation

requirement.' A different magistrate judge granted that motion in part,

scheduling a settlement conference to be held by her in lieu of mediation with a

private mediator. (See Mins., Doc. 32; Order, Doc. 34). That settlement

conference was held in May 2022, but the parties did not reach an agreement

on attorney's fees during that two-hour proceeding. (See Mins., Doc. 37).

Plaintiff then filed his Motion for Attorney’s Fees, requesting $39,990.00

in fees (133.3 hours at an hourly rate of $300 per hour) plus $1,481.10 in costs.

(See Doc. 39). Defendant filed a Motion to Compel and Motion to Stay (Doc. 40),

seeking an order requiring Plaintiff to produce his retainer agreement with

Plaintiffs counsel and staying resolution of Plaintiffs motion for fees until

resolution of the motion to compel. Before the Court ruled on that motion,

‘In that motion, Plaintiff requested that the Court either (1) remove the

mediation requirement outright because the parties were not likely to reach an

agreement; (2) require Defendant to cover the costs of the mediation; or (3) relieve

Plaintiff, personally, of the obligation to attend the mediation and allow Plaintiffs

attorney to attend alone. In support of the third form of requested relief, the motion

stated in part, “Plaintiff himself has nothing to do with deciding the amount of

reasonable attorney’s fees and costs.” (Doc. 29 at 3).

Defendant filed a Response (Doc. 42) to Plaintiff's fee motion; Defendant did not

challenge the requested hourly rate but did contest the reasonableness of the

number of hours claimed. Defendant also objected to all but $400.00—the court

filing fee—of Plaintiff's requested costs. (See id. at 18-19).

Both motions were referred to the assigned magistrate judge, who issued

a nine-page Report (Doc. 44) recommending a fee award of $6,000.00 and that

the Motion to Compel and Motion to Stay be denied as moot. Plaintiff has filed

Objections (Doc. 45)? to the Report, and Defendant has filed a Response (Doc.

46) to those Objections. Having conducted the required de novo review of those

portions of the Report to which objection has been made,? the Court finds merit

in some, but not most, of Plaintiffs objections. Accordingly, the magistrate

judge’s Report will be approved in part, and Plaintiff will be awarded more than

the Report recommends.

Il. The Report and Recommendation (Doc. 44)

As noted, the Report recommends a fee award of $6,000.00—significantly

less than what Plaintiff requested. The Report explains that Defendant’s

challenges to Plaintiffs claimed hours focus on the evolution of the case and the

fact that the maximum amount and the type of Plaintiffs damages changed

2 With his Objections, Plaintiff submitted updated time sheets (through the

filing of the Objections), requesting an additional $5,010.00 (16.7 hours x $300/hour)

in attorney’s fees. (See Doc. 45 at 10; Doc. 45-1 at 24-25). His total request is now for

$45,000.00 in attorney’s fees plus $1,481.00 in costs.

3 See 28 U.S.C. § 636(b)(1).

shortly after suit was filed. Specifically, in May or June 2021—four or five

months into the suit—Plaintiff sold the house that was the subject of the “higher

cost” mortgage allegedly caused by the FDCPA and FCCPA violations.4 Yet,

Plaintiff did not disclose this turn of events—which stopped Plaintiffs actual

economic damages from accruing further, leaving only de minimis actual

damages plus statutory damages capped at $1,000.00 on each of the two

counts—and Defendant did not become aware of it until seven or eight months

later, at the January 31, 2022 mediation. As the Report explains, Defendant

thus argued that “the case was extended and complicated because Plaintiff and

his counsel failed to advise of this significant change in the basis for the

litigation,” and Defendant urged “that the great bulk of attorney time spent

after” the June 2021 home sale was “unnecessary and therefore unreasonable.”

(Doc. 44 at 6).

The magistrate judge agreed in large part with Defendant, concluding

that “Plaintiffs failure to be forthcoming as to the fact [that after the home sale]

the case concerned only essentially a de minimis damage claim undoubtedly

interfered with the progress of the case.” (Id. at 7). The magistrate judge noted

+ The house was sold in either May or June 2021. Plaintiff refers to the sale as

having occurred in June, (see Doc. 39 at 2): Defendant identifies a date in May as the

sale date, (see Doc. 42 at 3, 5, & 6; Doc. 42-2 at 2); and the magistrate judge’s Report

refers to the sale occurring in June, (see Doc. 44 at 6). The Court assumes for the

purpose of resolving the attorney’s fee issues that the sale occurred in June 2021.

that “Plaintiff is not entitled to be compensated [flor fees he incurred or time

unreasonably devoted by his attorney in respect to” unnecessary proceedings.

(UId.).

In the end, the magistrate judge concluded that considering the

circumstances of the case; the reasonable number of hours expended by

Plaintiffs counsel was 20—not the 133.3 claimed. (Ud. at 8). The magistrate

judge then multiplied 20 by the $300 hourly rate to arrive at a “lodestar” fee

amount of $6,000.00. (See id.). The magistrate judge did not make any

adjustments to the lodestar, nor did he address the items of Plaintiffs requested

costs. The Report recommends entry of final judgment in Plaintiffs favor for

$2,002.00 in statutory damages, $448.00 in costs—apparently a misreading of

the offer of judgment’s provision for $448.00 in actual damages—and $6,000.00

in attorney’s fees, (id. at 9), for a total judgment of $8,450.00. The Report also

recommends denying as moot Defendant’s Motion to Compel and Motion to Stay.

(See id. at 1). Plaintiff objects to the Report insofar as it pertains to his fee

motion, but neither party has objected to the recommendation that Defendant’s

Motion to Compel and Motion to Stay be denied as moot.

III. Discussion

When a magistrate judge issues a report and recommendation on a

matter, a district judge “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1). Here, having considered Plaintiffs Objections and Defendant’:

Response, the Court accepts some of the magistrate judge’s findings anc

recommendations but rejects others.

Plaintiff asserts a laundry list of objections to the Report, but the Court

finds merit only in: (1) the objection to the Report’s description of the amounts

of costs and damages in the offer of judgment and (2) the objection to the

Report’s failure to allow any fees for litigating the amount of fees. The Court

will discuss, but rejects, Plaintiff's objections regarding the magistrate judge’s

computation of 20 reasonable hours. Finally, the Court will analyze and resolve

the parties’ arguments over Plaintiffs request for $1,481.10 in costs, a task not

undertaken by the magistrate judge.

A. The Report’s Reference to the Offer of Judgment’s “Actual

Damages” Amount as “Costs”

Plaintiff first objects to the Report's statement that “Plaintiff filed a

Notice of Acceptance of Offer of Judgment for $2,002.00[] plus costs of $448. 00.”

(Doc. 45 at 1 (emphasis added) (quoting Report at 2)). Plaintiff aptly notes that

the reference to “costs of $448.00” “is inaccurate,” (id.); the accepted offer of

judgment provides for $2,002.00 in statutory damages plus $448.00 in actual

damages (not costs), (Doc. 26-1 at 2).5 The parties did not resolve the issue of

> The Report repeats this error on the last page in its itemization of the

components of the judgment that it recommends be entered. (See Doc. 44 at 9).

costs in the offer of judgment, instead leaving that matter, along with the

amount of reasonable attorney’s fees, for determination by the Court. As

acknowledged by Plaintiff, the magistrate judge apparently “misread” this

portion of the offer of judgment. (Doc. 45 at 1). The Court will correct this

misreading when directing entry of judgment.

B. Failure to Award Fees for Litigating the Amount of Fees

Plaintiff also objects to the Report’s failure to allow any hours for litigation

of the fee amount. “[W]here attorney fees are allowed to the prevailing party by

federal statute, the compensable fees include time spent litigating both the

entitlement to and amount of fees incurred... .” Wolff v. Royal Am. Mgmt.,

Inc., 545 F. App’x 791, 796 (11th Cir. 2013). The Eleventh Circuit has reversed

statutory fee awards that do not include some amount for litigating the fee issue.

See, e.g., Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d 1242, 1245, 1246

(11th Cir. 2003) (noting, in a case brought pursuant to 42 U.S.C. § 1981, that a

district court “may not entirely deny civil rights litigants the recovery of

statutory fees (which we have said includes fees for litigating fees),” and

reversing for abuse of discretion where the district court provided “no

compensation for the time . .. spent on the fee issue”). Because the Report does

6 As explained later in this Order, however, the Court does not agree with

Plaintiff that the magistrate judge’s misreading of this part of the offer of judgment “is

critical” or undermines the magistrate judge’s thoughtful analysis of the course of the

litigation or his determination of the reasonable number of hours expended in the

litigation. (See Doc. 45 at 1).

not specifically provide for any time spent litigating fees, the Court will, a:

discussed later in this order, include compensation for some hours for that task

C. Reasonable Hours

1. The Magistrate Judge’s Determination of Twenty Hours

The rest of Plaintiffs objections attack, in one way or another, the

magistrate judge’s determination of the reasonable number of hours expended

by Plaintiffs counsel in this litigation. But the Court finds no error in the

magistrate judge’s assessment that 20 hours—not including time reasonably

spent litigating fees—is the reasonable number of hours for which fees should

be awarded in this case.

In his Objections, Plaintiff repeatedly quibbles with the magistrate

judge’s description of the nature of Plaintiffs claims. For example, in reaction

to the Report’s statement that “Plaintiff sold the property on which his damage

claim was based,” (Doc. 44 at 5), Plaintiff insists that “[t]here was no ‘damage

claim’ in this case, per se,” but instead the claims were “for debt collection

violations . . . which include actual damages as one prong of total potential

recovery. (Doc. 45 at 2). The Court is puzzled by Plaintiffs assertion here.

Plaintiff clearly sought—and is obtaining through an accepted offer of

judgment—damages in this case. Indeed, when Plaintiff is not attacking the

magistrate judge’s use of the term “damages,” Plaintiff himself repeatedly uses

it in his Objections when describing the case, belying his misleading and plainly

inaccurate assertion that “[t]here was no ‘damage claim.” (See, e.g., Doc. 45 at

2 (“Part of the potential recovery under the FDCPA and FCCPA is actual

damages—in addition to statutory damages.... Plaintiff was actually

damaged by Defendant.”)).

Plaintiff continues his semantic attack about “damages” when he asserts

error in the Report’s statement that “[t]he case began and was litigated on the

premise (as alleged in the Complaint) that Plaintiffs claim included decades of

potential damages from a higher mortgage interest rate.” (Doc. 45 at 3 (quoting

Report at 6)). Plaintiff contends that the Complaint “never discussed ‘decades

of potential damages’ or any timeframe whatsoever.” Id. But even if a specific

timeframe was not stated in the Complaint, Plaintiffs actual economic damages

were alleged to have arisen from a mortgage, and in his fee motion Plaintiff

describes the “30-year home mortgage” and claims that when he sold his home

in June 2021, he “mitigate[d] part of his actual damages to only one year rather

than the full 30 years.” (Doc. 39 at 2). The Court thus rejects Plaintiffs assault

on the magistrate judge’s quite accurate description of Plaintiffs initial

assertion of his damages.

Plaintiff also objects to the Report’s mention (in a footnote) of Plaintiffs

Initial Disclosures becoming misleading once the house was sold. (See Report

at 6 n.5 (“Plaintiff concedes that his Initial Disclosures, never amended or

supplemented, sought damages based on the life of the mortgage. That

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assertion was materially misleading once the house was sold.”)). □□□□□□□□

Plaintiff argues that “[t]his is inaccurate,” (Doc. 45 at 4), Plaintiff did, in his fee

motion, acknowledge the eventual inaccuracy of his Initial Disclosures, (see Doc

39 at 5 (“The only thing that became (very slightly) inaccurate were the Initia.

Disclosures... .”)).

Focusing on the same footnote of the Report, Plaintiff then asserts that

the Report “is inaccurate” when it states that once Plaintiff sold his home, the

“maximum recovery □□□ statutory damages of $1,000 per count’—“a

fundamental change in Plaintiffs claim itself, not a matter of ‘mitigation’ of

damages.” (Doc. 45 at 4 (quoting Report at 6 n.5)). Plaintiff insists that his

“claims never changed,” just “the specific amount of actual damages’ did. □□□□□□

But the point being made in this footnote of the Report is that once the actual

damages stopped accruing—damages that Plaintiff initially estimated at more

than $100,000—the case fundamentally changed to one involving finite (and no

longer increasing) actual damages plus $2,000 more in statutory damages.?

The Court also rejects Plaintiffs contention that the Report's erroneous

reference to the $448.00 in the offer of judgment as “costs” rather than “actual

’ Plaintiff makes similar arguments on the next page of his Objections, again

challenging the Report’s characterization of his damages as “no more than $1,000 per

count” once the house sold. (See Doc. 45 at 5 (quoting Report at 7)). But these

arguments profit Plaintiff none; the Report’s characterization of what more was at

stake once actual damages stopped accruing is accurate.

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damages” undermines the magistrate judge’s analysis of the case. Th

magistrate judge clearly understood that—as Plaintiff acknowledges—when th

home was sold in June 2021, Plaintiffs actual damages ceased to accrue. (Se

Report at 5-6 (noting Defendant's argument that the home sale “reducfe

Plaintiffs] potential claim (due to higher interest costs) from many years to jus

a few months”)). Although the Report does also mention that once the hom:

sold “the possible recoverable damages were no more than $1,000 per count,” id

at 7, the settled amount of actual damages was $448.00—a proportionately □□

minimis sum that does not affect the accuracy of the Report’s description of the

course of the case and the effect on the litigation of Plaintiff's failure to □□□□□□□□

the sale of the house.

And speaking of that failure to disclose, Plaintiff and his counsel continue

to attempt to defend it, but those efforts fall short. Counsel refuses to state in

his filings when he became aware of the sale. (See, e.g., Doc. 45 at 5 (“As far ag

can be discerned, Plaintiffs counsel became aware of this fact at the same time

Defendant’s counsel became aware of this fact—during the first mediation.”)).

But emails between counsel seem to reflect that Plaintiffs counsel knew that

Plaintiff moved out of state around June 1, 2021, though counsel maintained

that he did not deduce from that fact that Plaintiff had sold the house with the

at-issue mortgage. (See Doc. 42-2 at 2 (Plaintiffs counsel insisting in an email,

“I've had clients in the past move to a new state while stil] keeping their house

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in the original state ... . I was never told they sold the house until mediation.”))

And even if Plaintiffs counsel did not know, Plaintiff certainly did, and he

cannot expect Defendant to foot the bill for attorney hours expendec

unnecessarily because of his failure to disclose. See, e.g., ACLU of Ga. v. Barnes

168 F.3d 423, 428 (11th Cir. 1999) (“Courts are not authorized to be generous

with the money of others, and it is as much the duty of the courts to see that

excessive fees and expenses are not awarded as it is to see that an adequate

amount is awarded.”). In sum, the Court agrees with the discussion in the

Report regarding Plaintiffs failure to disclose the sale to Defendants and its

prolonging effect on the litigation. See, e.g., Lee v. Thomas & Thomas, 109 F.3d

302, 307 (6th Cir. 1997) (“[A]ble counsel should aspire to achieve their client’s

objectives economically, and counsel should not expect to reap financial rewards

for prolonging litigation unnecessarily.” (citation omitted)).

Plaintiff also objects that the Report does not “include an analysis of the

three offers of judgment issued by Defendant.” (Doc. 45 at 6). Although Plaintiff

is correct that the Report does not recount the history of the three offers of

judgment, this omission is not significant and, if anything, that history cuts

against, rather than in favor of, Plaintiff. On February 11, 2022—a week and a

half after the mediation—Plaintiffs counsel wrote to opposing counsel advising

that he had “been instructed not to accept any offers which does [sic] not cover

attorneys [sic] fees and costs already incurred.” (Doc. 40-1 at 3). Eleven days

13

later, on February 22, 2022, Defendant made its first offer of judgment t

Plaintiff. That offer provided for entry of judgment against Defendant in th

amount of $1,001.00 on the FDCPA claim, plus $1,001.00 on the FCCPA claim

plus $448.00 in actual damages—a total of $2,450.00 in damages—plu:

“reasonable fees and accrued costs incurred by Plaintiff up to and through the

date of [the] Offer.” (Doc. 39-1 at 3). Although this language seems to conforn

to Plaintiffs counsel's February 11 email, Plaintiff nevertheless “rejected this

[offer], as Plaintiff did not wish to voluntarily waive the ‘fees on fees’ that he

would otherwise be entitled to receive,” (Mot., Doc. 39, at 4).

Defendant made a second offer of judgment six days later, on February

28, 2022. (Doc. 39-1 at 10-12). Like the first offer, the second offer provided for

entry of judgment for total damages of $2,450.00, and Defendant also agreed in

that offer to pay Plaintiffs accrued costs and reasonable attorney’s fees totaling

$7,550.00. Ud. at 11). Plaintiff rejected this second offer “on substantially the

same grounds the last offer was rejected.” (Id. at 14). Inexplicably, in his fee

motion, Plaintiff characterizes this second offer as “not contain[ing] any

provision for reasonable attorney’s fees and costs at all,” (Doc. 39 at 4), and in

his Objections, Plaintiff refers to it as “taking away Plaintiff's ability to seek his

fees and costs at all,” (Doc. 45 at 6). Although Plaintiff may disagree with

whether the amount offered was reasonable, the second offer specifically

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allocated $7,550.00 for fees and costs, and Plaintiff's characterizations of it ar

misleading at best.

Defendant’s third offer—the one that Plaintiff accepted—was made or

March 30, 2022. (See Doc. 39-1 at 15-17). Again, it included the same damage:

amounts (totaling $2,450.00) as the first two offers and provided that “[t]he

Judgment shall include reasonable attorneys fees and costs incurred by

Plaintiff as allowed by the Court.” (Id. at 16).

It is clear from the record that Plaintiff continued to insist on specific

language in the offer even though Defendant had included—in the first offer—

the terms Plaintiff demanded on February 11.8 Although Plaintiff asserts that

“analysis of the three offers of judgment” supports his fee request, it does not

aid Plaintiffs position.

Twice in his objections, Plaintiff asserts that the magistrate judge lowered

the lodestar for improper reasons. (See Doc. 45 at 3, 8-9). But the magistrate

judge did not adjust the lodestar—the mathematical product of the number of

reasonable hours and the hourly rate—at all. The magistrate judge determined

that the number of reasonable hours was 20 and multiplied that by the $300

8 And although Plaintiff complains that Defendant caused him to incur more

attorney's fees by pursuing discovery in March, (see Doc. 39 at 5), in the February 11

email Plaintiffs counsel stated: “I feel like this is a sticking point that will not be

resolved by agreement. So, let’s just set depositions and move towards MSJ practice.”

(Doc. 40-1 at 3).

15

hourly rate proposed by Plaintiff, resulting in a lodestar of $6,000.00—th

amount the Report recommends awarding. Plaintiffs “lodestar adjustment

objections thus are not well-taken.

And Plaintiffs challenge to the magistrate judge’s methodology i

determining the number of reasonable hours is without merit. A court “shoul

exclude from thle] initial fee calculation hours that were not ‘reasonably

expended,” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quoting S. Rep. No

94-1011, at 6 (1976)), and, whether “trial or appellate, [the court] is itself ar

expert on the question and may consider its own knowledge and experience

concerning reasonable and proper fees,” Norman v. Hous. Auth. of Montgomery

836 F.2d 1292, 1303 (11th Cir. 1988) (quoting Campbell v. Green, 112 F.2d 143

144 (Sth Cir. 1940)); see also id. (“‘[W]here the time or fees claimed seer

expanded ... the court may make the award on its own experlence.”). Applying

these principles and his extensive experience, the magistrate judge here

explained the history of the case and determined that only 20 hours—rather

than the 133.3 claimed—were reasonably expended in the case. The Report

breaks down these 20 hours by task: 4 hours for pre-suit investigation and

drafting: 5 hours for “[plost filing case management, Rule 26 disclosures and

conferring with opposing counsel (through June 2021)”; 7 hours for discovery

and communications through the January 31, 2022 mediation; and 4 hours

“[a]llowance for post mediation documentation of accepted offer.” (Doc. 44 at 8).

16

The magistrate judge cogently explained his rationale and commented that evel

20 hours “may be overly generous,” noting that counsel spent fewer than 2(

hours on the case through the time Plaintiff sold his house. (Ud. n.6).

“If the court disallows hours, it must explain which hours are disallowec

and show why an award of these hours would be improper.” Norman, 836 F.2¢

at 1304. This “does not mean that [the court] must exhaustively detail, hour

by-hour, what fees it excluded. The rule is more practical.” Walker v. Iron Sush

LLC, 752 F. App’x 910, 913 (11th Cir. 2018) (citing Loranger v. Stierheim, 1(

F.3d 776, 783 (11th Cir. 1994)). An order on fees “simply must include sufficient

detail to allow... meaningful review of the award.” Id. (citing Thompson v

Pharmacy Corp. of Am., 334 F.3d 1242, 1244 (11th Cir. 2003)). And Eleventk

Circuit “decisions contemplate a task-by-task examination of the hours billed,’

Barnes, 168 F.3d at 429—the type of examination undertaken by the magistrate

judge in the Report in this case. Cf, e.g., id. at 429-32 (concluding that the

district court abused its discretion in not excluding as excessive some of the

hours for the task of drafting complaint and, rather than remanding for the

district court to exclude hours, reducing compensable hours for that task from

147.88 to 40).

Despite these principles and the Report’s thorough explanation of the

determination of reasonable hours, Plaintiff accuses the authoring magistrate

judge of “fabricatling] a timesheet” and calls the Report's delineation (by task)

17

of twenty hours reasonably worked by counsel “wholly unacceptable.” (Doc. 4

at 8). Plaintiffs counsel’s disrespect for the Court—already apparent from the

tone of the rest of the Objections—is palpable here. Counsel’s word choices □□□

completely uncalled for. It is not for counsel to decide or declare what is or is

not “wholly unacceptable” when speaking of a judicial officer’s work. Anc

counsel's repeated use of the word “fabricate” is especially troubling. While the

word does, in certain contexts, have a neutral or even positive connotation—

such as when it refers to “constructing” or “manufacturing” a building or ar

object, see Fabricate, Merriam-Webster’s Collegiate Dictionary (10th ed. 1993)—

in the legal arena, it is most often used in its underhanded sense: “to make ut

for the purpose of deception,” id.; see also Fabricate, Black’s Law Dictionary (9th

ed. 2009) (“To invent, forge, or devise falsely.”).

Thus, what is “wholly unacceptable” here is Plaintiffs counsel’s

disrespectful and unfounded accusation against a member of the judiciary. Rule

4-8.2 of the Rules Regulating the Florida Bar prohibits lawyers from

“Impugning Qualifications and Integrity of Judges or Other Officers.” If the

invective that Plaintiff's counsel used here in attacking the magistrate judge’

does not violate this rule, it at least comes perilously close to doing so. And to

what end? Ad hominem attacks are not persuasive to a reviewing court; in fact,

° The magistrate judge who authored the Report is greatly respected and widely

recognized for his extraordinary competence and professionalism.

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they have the opposite effect—to diminish the credibility of the one □□□□□□□

insulting hyperbole. But more importantly, such comments undermin

confidence in the judiciary and the fair administration of justice.

Finally, Plaintiffs reliance on Bivins v. Wrap It Up, Inc., 548 F.3d □□□□

(11th Cir. 2008), in attacking the Report’s methodology misses the mark. Th

Bivins court did, as noted by Plaintiff, state that “[w]hen a district court find:

the number of hours claimed is unreasonably high, the court has two choices: i

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

with an across-the-board cut.” 548 F.3d at 1350. That court did so in the courss

of finding error in the district court’s application of both methods to the claimec

hours in that case: the district court had “engaged in an hour-by-hour analysis’

and “found a certain portion of those hours to be ‘reasonable,” but it “ther

applied a further 35% across-the-board reduction in the requested hours.” Id

at 1351. In other words, the district court declared a number of “reasonable’

hours, cut that number by 35%, and then called the resulting numbe1

“reasonable” as well. This, said the Eleventh Circuit, resulted in improper

“double-discounting” of the requested hours. Jd. at 1352 & n.5.

In the case at bar, the magistrate judge engaged in no such “double.

discounting,” nor did he otherwise use an inappropriate method to determine

reasonable hours. The magistrate judge analyzed the case and the numerous

19

entries on the submitted timesheets,!" explained which tasks were reasonable

and necessary, and gauged—based on his experience and expertise—how many}

hours were reasonably spent on each task. He thus engaged in a “task-by-tasl}

examination of the hours billed,” Barnes, 168 F.3d at 429, and “include[d

sufficient detail to allow... meaningful review,” Walker, 752 F. App’x at 918

Such methodology does not run afoul of controlling precedent as suggested by

Plaintiff.

In sum, the Court finds no error in the Report’s assessment of the □□□□□□

of fees reasonably expended in the litigation up until acceptance of the offer o:

judgment. The Court will award 20 hours of fees as recommended in the Report

2. Fees on Fees

As noted earlier, Plaintiffs objection to the Report’s failure to award any

fees for time spent litigating the amount of fees is well-taken. Under controlling

precedent, Plaintiff's counsel is entitled to some compensation for litigating fees

See, e.g., Thompson, 334 F.3d at 1245-46.

'0 Plaintiff's counsel submitted twenty-three pages of timesheets along with the

fee motion, and almost every page includes more than twenty entries. The vast

majority of the entries denote six-minute increments of time for sending or receiving

emails to Plaintiff or opposing counsel, even when several were sent or received on the

same day. (See Doc. 39-5). “[E]xcessive, redundant, or otherwise unnecessary’ hours

should be excluded from the amount claimed.” Norman v. Hous. Auth. of Montgomery.

836 F.2d 1292, 1801 (11th Cir. 1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434

((1983)). This means that applicants for attorney’s fees must “exercise ‘billing

judgment,” and “exclude[] ... those [hours] that would be unreasonable to bill to a

client and therefore to one’s adversary.” Jd. (first quoting Hensley, 461 U.S. at 437:

and then quoting id. at 434).

20

The claimed hours for litigating fees are, of course, subject to review fo:

reasonableness. Here, Plaintiffs counsel claims 44.1 hours after the March 30

2022 Notice of Accepted Offer of Judgment (Doc. 26). Plaintiff has no

summarized the number of hours spent on particular tasks, but the Court ha:

examined and categorized the entries in the submitted timesheets (to the exten’

the entries are sufficiently specific to allow categorization). Plaintiff seeks

compensation for, among other tasks: .9 hours for attending an April 27, 202:

Zoom hearing with the magistrate judge regarding Plaintiff's motion to dispense

with mediation on the fee issue: 2.1 hours for attending the May 19, 2022 Zoom

settlement conference with the magistrate judge: 14.3 hours for writing the fee

motion; 6.7 hours researching and drafting a Rule 11 motion that was neve!

filed; and 6.3 hours for writing objections to the magistrate judge’s report.

Upon review of the timesheets and the record, not all of the post-March

30 claimed hours are reasonable for litigating the fee issue. See, e.g., Norman,

836 F.2d at 1303 (“[W]here the time or fees claimed seem expanded . . . the court

may make the award on its own experience.”). First, 14.3 hours for drafting the

fee motion is grossly excessive. The motion is eight pages long, and five pages

of it consists of Plaintiff anticipating, and arguing against, “Defendant’s Likely

Opposition.” (Doc. 39 at 2). The rest of the motion contains six paragraphs of

basic principles of attorney’s fee determination, assertions about Plaintiffs

counsel’s hours and hourly rate, and delineation of the requested costs. (See id.

ao]

at 6-8). Upon consideration, the Court concludes that 2 hours will be □□□□□□□

for this task; the additional 12.3 hours claimed will be excluded.

Similarly, 6.3 hours for drafting the Objections (Doc. 45) to the Report i:

excessive. The Court will allow 2 hours for creation of that ten-page document

much of which—as discussed herein—nitpicks and rants about the Report ir

unproductive ways.

The Court will allow .75 hours for attendance at the April 27, 2022 Zoor

hearing on Plaintiffs motion to amend the mediation order. (See Clerk’s Mins.

Doc. 32 (noting that the hearing lasted 45 minutes)). The Court will also allow

2 hours for attendance at the May 19, 2022 Zoom settlement conference requirec

by the Court. (See Clerk’s Mins., Doc. 37 (noting that the settlement conference

lasted an hour and 56 minutes)). And the Court will allow an additional □□□□

for counsel’s work preparing an outline of the history of settlement negotiations

and conferring with opposing counsel to prepare a draft/working settlement

agreement in advance of the settlement conference as required by the

settlement magistrate judge. (See Order, Doc. 34, at 2-3).

In addition to those hours specifically allowed above, the Court will allow

5 hours (rather than the 1.2 hours claimed) for drafting the Motion to Amend

Mediation Order (Doc. 29) and will allow the .4 hours requested for writing the

Response (Doc. 43) to Defendant’s Motion to Compel and Motion to Stay. Aside

from these hours, one additional hour (rather than the sum of the numerous .1

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hours claimed) will be allowed for correspondence with opposing counsel and th«

chent after March 30.

No fees will be awarded for time spent on Rule 11 research and drafting

Plaintiff has not established that these hours were necessary or reasonable.

The Court has reviewed all the time entries submitted, and to the exten

not specifically mentioned herein, all other claimed time is excluded as

unreasonable and excessive. The Court will award fees only for the 9.65 hours

described above.

3: Total Fee Award

In sum, the Court agrees with the magistrate judge’s determination that

Plaintiff's counsel reasonably expended 20 hours in this case, exclusive of time

spent litigating the fee issue. And as set forth above, the Court awards fees fot

an additional 9.65 hours for litigating the amount of fees. This results in a total

of 29.65 hours and a total fee award of $8,895.00 (29.65 hours x $300/hour).

D. Costs

In his motion, Plaintiff requests $1,481.10 in total costs, which consists

of: the $400 court filing fee; $46.10 to serve the complaint; and $1,035.00 fo1

Plaintiffs half of the cost of the January 30, 2022 mediation. (See Doc. 39 at 8).

Defendant contests all but the $400 filing fee. Although costs are typically taxed

23

by the Clerk at the conclusion of a case,!! because the parties have alread;

litigated the appropriate amount of costs in the motion (Doc. 39) and □□□□□□□□□□

(Doc. 42), the Court will resolve costs now and include them in the judgment. 1:

The court filing fee of $400—which is uncontested by Defendant—will be

allowed. But the Court will not allow the $46.10 in service fees because Plaintif

has not established that he requested that Defendant waive service. See, e.g.

Flores v. Sch. Bd. of DeSoto Par., 116 F. App’x 504, 507-08 (5th Cir. 2004

(affirming denial of motion for costs of service where plaintiff did not establisk

that she requested waiver of service); cf. Fed. R. Civ. P. 4(d)(2) (providing that

court must impose on defendant expenses incurred in making service i

defendant refuses request for waiver of service). Nor will the Court allow

Plaintiffs share of the costs of the J anuary 2022 mediation; district courts in

this circuit have, with approval of the Eleventh Circuit, declined to award

mediation costs under the FDCPA because such costs are not allowed under the

general costs provision, 28 U.S.C. § 1920. See, e.g., Embree v. Medicredit, Inc.,

752 F. App’x 697, 700-01 (11th Cir. 2018) (finding, in FDCPA case, no abuse of

discretion in district court's “looking to § 1920 and limiting the plaintiffs’ award

to costs taxable under that section,” and declining to extend Evans v. Books-A-

'l See Fed. R. Civ. P. 54(d)(1) (providing for taxation of costs by clerk and review

of taxed costs by court upon motion).

12 As noted earlier, the Report does not address the requested costs or

Defendant’s objections to them.

24

Million, 762 F.3d 1288, 1299-1300 (11th Cir. 2014)—an ERISA case in whicl

mediation costs were awarded—to FDCPA cases).

In sum, the Court will allow $400.00 as reasonable costs.

IV. Conclusion

It is ORDERED as follows:

1. The Report and Recommendation (Doc. 44) is ADOPTED insofar a:

it accepts Plaintiffs proposed $300 hourly rate and concludes that the

reasonable number of hours expended by counsel in this litigation was twenty—

not including the time spent litigating the amount of fees and costs.

2. Plaintiffs Motion for Attorney's Fees and Costs (Doc. 39) is

GRANTED in part and DENIED in part. The motion is GRANTED to the

extent that Plaintiff is awarded attorney’s fees in the amount of $8,895.00 anc

costs in the amount of $400.00. Otherwise, the motion is DENIED.

3. In light of Plaintiff's acceptance of Defendant’s March 30, 2022 □□□□□

of judgment, this case is DISMISSED with prejudice.

4. In accordance with this Order and the accepted offer of judgment.

the Clerk is directed to enter a judgment providing that Plaintiff shall recover

from Defendant the sum of $11,745.00, 3 plus interest from the date ot

13 This total sum consists of $2,450.00 in damages as agreed by the parties in

the accepted offered of judgment, plus $8,895.00 in attorney's fees and $400.00 in costs

as determined by the Court in this Order.

D5

judgment, for all of which let execution issue.

5. Defendant’s Motion to Compel and Motion to Stay (Doc. 40) i:

DENIED as moot.

6. After entry of judgment, the Clerk shall close this case.

DONE and ORDERED in Orlando, Florida, an Soave, A 20273.

/ /

JOHN/ANTOON II

United States District J udge

Copies furnished to:

United States Magistrate Judge

Counsel of Record

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