Melendez v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM H. MELENDEZ,

Plaintiff,

v. Case No. 3:20-cv-1023-BJD-JBT

RICKY D. DIXON, et al.,

Defendants.

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ORDER

This cause is before the Court on (1) Plaintiff’s supplement to his request

for attorney’s fees (Doc. 363; Att’y Fees Mot.) with respect to his previously

granted motion to compel (Doc. 349) and (2) Plaintiff’s motion to compel

responses to a Rule 45 subpoena or to exclude evidence and testimony related

to the subpoenaed records (Doc. 376; Mot. to Compel).

I. Attorney’s Fees Motion

By order dated December 16, 2022, the Court granted Plaintiff’s motion

to compel the Florida Department of Corrections (FDOC) to disclose certain

documents. See Order (Doc. 357). Plaintiff sought an award of attorney’s fees

for bringing the motion. The Court found Plaintiff was entitled to recover

reasonable attorney’s fees but found Plaintiff had not sufficiently

demonstrated the amount requested ($8,117.25) was reasonable. Id. Thus, the

Court directed Plaintiff’s counsel to confer in good faith with counsel for the

FDOC to settle on a fair amount and, if negotiations were unsuccessful, to file

a motion with supporting documentation showing the rate requested and the

hours expended are reasonable. Id. The parties were unable to agree on a fair

amount. See Notice (Doc. 361); Att’y Fees Mot. at 2-3. Plaintiff seeks to recover

attorney’s fees in the amount of $8,117.25 for spending just over 34 hours on

the motion to compel at the PLRA (Prison Litigation Reform Act) statutory

maximum hourly rate of $237.00 per hour. See Att’y Fees Mot. at 2-3.

The Supreme Court has explained the calculation of attorney’s fees as

follows:

The most useful starting point for determining

the amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by a

reasonable hourly rate. This calculation provides an

objective basis on which to make an initial estimate of

the value of a lawyer’s services. The party seeking an

award of fees should submit evidence supporting the

hours worked and rates claimed. Where the

documentation of hours is inadequate, the district

court may reduce the award accordingly.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar calculation (hourly

rate multiplied by the number of hours expended) governs the attorney’s fees

analysis, though courts may consider, as relevant, the factors set forth in

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Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).1 See

Thornton v. Wolpoff & Abramson, L.L.P., 312 F. App’x 161, 164 (11th Cir. 2008)

(citing Hensley, 461 U.S. at 436-37).

Hourly Rate

A reasonable hourly rate for an attorney’s services “is the prevailing

market rate in the relevant legal community for similar services by lawyers of

reasonably comparable skills, experience, and reputation.” Loranger v.

Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). The moving party must produce

evidence that the requested rate “is in line with prevailing market rates.” Id.

In determining reasonableness of an attorney’s hourly rate, a court also may

draw on its own expertise. See Norman, 836 F.2d at 1304. Regardless of the

prevailing market rate for an attorney’s services, however, the PLRA limits the

amount of attorney’s fees a party may recover: “No award of attorney’s fees …

shall be based on an hourly rate greater than 150 percent of the hourly rate

established under section 3006A of Title 18 for payment of court-appointed

counsel.” 42 U.S.C. § 1997e(d)(3).2

1 Generally, the Johnson factors are subsumed in the lodestar calculation. See

Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).

2 The parties agree that the PLRA applies and that the maximum hourly rate

under the PLRA for the relevant time is $237.00. Under section 3006A of Title

18, the hourly rate in 2022 was set at $158.00. See Criminal Justice Act (CJA)

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The attorney who handled the motion compel, Ms. Berkowsky, explains

she is a third-year attorney who litigates exclusively civil rights actions on

behalf of prisoners and victims of police violence for the MacArthur Justice

Center (MJC). See Att’y Fees Mot. at 7. Prior to graduating cum laude from

Northwestern Pritzker School of Law, Ms. Berkowsky served for two years as

a clinical student under the supervision of one of Plaintiff’s other attorneys,

Alexa Van Brunt. Id. Ms. Berkowsky cites a slew of Florida district court cases,

which have found an hourly rate of over $250.00 for a third-year attorney to be

reasonable, but none of the cases were in the Jacksonville Division of the

Middle District. Id. at 8-9 (citing cases). However, she also contends that the

law firm of Nelson Mullins recently was awarded fees in a case pending in the

circuit court in Nassau County “in which the hourly rates of $375 and $300

were found to be reasonable for third-year associates.” Id. at 9.

Ms. Berkowsky further provides the declaration of the Executive

Director of Uptown People’s Law Center (UPLC) (Doc. 363-2; Pl. Ex. B), Alan

Mills, who avers the PLRA statutory maximum hourly rate, which Ms.

Berkowsky seeks, “is significantly lower than the market rate for attorneys of

her experience in the Chicago-area.” See Pl. Ex. B ¶10. The prevailing market

Guidelines, available at https://www.uscourts.gov/rules-policies (last visited

Apr. 20, 2023).

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rate for an attorney in Chicago is not determinative of a reasonable hourly rate

for an attorney of the same experience practicing in Jacksonville. However,

Mills offers helpful information about Ms. Berkowsky’s skills, experience, and

reputation. Mills avers the “MJC is considered to be a leading national civil

rights organization by those in the field.” Id. ¶ 8. Additionally, Mills contends

that, given Ms. Berkowsky has focused her three-year legal career and nearly

half of her law school career “on a highly specialized area of law” (civil rights

of prisoners), she “has far more experience litigating prisoners’ rights cases in

the few years she has been practicing than do lawyers with decades of

experience.” Id. ¶¶ 11, 12.

In its response (Doc. 370; FDOC Resp.), the FDOC contends Ms.

Berkowsky’s requested hourly rate is excessive, noting that she is a third-year

attorney seeking the maximum PLRA rate—the same amount a seasoned

lawyer would be entitled to recover—and that Mills’s declaration speaks to the

reasonable market rate for civil rights attorneys in Chicago, not in

Jacksonville. See FDOC Resp. at 3-4. The FDOC cites no authority for the

suggestion that a lawyer with three years of experience and a lawyer with ten

years of experience should not both be permitted to recover the maximum

PLRA rate. See id. at 4. Moreover, one of the two cases on which the FDOC

relies permits the conclusion that a rate of more than $237.00 is reasonable for

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a lawyer with three years of experience in this general region of Florida. See

EEOC v. Chalfont & Assocs. Grp., Inc., No. 6:19-cv-1304-ORL-78GJK, 2020 WL

1433054, at *4 (M.D. Fla. Mar. 24, 2020) (implicitly finding that a reasonable

hourly rate for an attorney in Orlando with one to three years of experience

was $250.00 in 2020).

Upon review, the Court finds the maximum PLRA rate of $237.00 is

reasonable under the circumstances. Ms. Berkowsky has expertise handling

civil rights cases on behalf of prisoners, solely dedicating her practice to such

matters. Though she provides no relevant comparators for the Court to

consider (i.e., a reasonable hourly rate for a third-year lawyer focusing solely

on civil rights cases in the Jacksonville Division of the Middle District),

considering its own expertise and judgment, the Court is persuaded that a

third-year lawyer in Jacksonville with expertise in civil rights matters

reasonably could charge a client more than $237.00 per hour for her services.

For the reasons stated, the Court finds the PLRA rate of $237.00 is

reasonable.

Hours Expended

To establish the number of hours expended on a motion was reasonable,

a movant “must provide a billing statement that sets out with sufficient

particularity the general subject matter of the time expenditures so that the

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district court can assess the time claimed for each activity.” Laube v. Allen, 506

F. Supp. 2d 969, 984 (M.D. Ala. 2007) (citing ACLU of Ga. v. Barnes, 168 F.3d

423, 427 (11th Cir. 1999)). Fee applicants must exercise “billing judgment,”

meaning they should omit hours that are excessive, redundant, or otherwise

unnecessary, regardless of experience or skill. Barnes, 168 F.3d at 428. As

such, “[i]t is appropriate for [a] court to exclude excessive, redundant, and

unnecessary hours; hours which are inadequately documented; and hours

which would be unreasonable for an attorney to bill the client or opposing

counsel in the exercise of good billing judgment.” Access for the Disabled, Inc.

v. Missouri Mart, Inc., No. 8:05-cv-392-T-23MSS, 2006 WL 5432711, at *2

(M.D. Fla. Dec. 7, 2006) (citing Hensley, 461 U.S. at 434).

Once the fee applicant produces adequate billing records, “[t]he fee

opponent then ‘has the burden of pointing out with specificity which hours

should be deducted.’” EEOC, 202 WL 1433054, at *2 (alteration in original)

(quoting Rynd v. Nationwide Mutual Fire Ins. Co., No. 8:09-cv-1556-T-27TGW,

2012 WL 939387, *3 (M.D. Fla. Jan. 25, 2012)).

In her renewed motion, Ms. Berkowsky provides a more detailed billing

chart than that offered with the motion to compel (Doc. 363-1; Pl. Ex. A). Of

the 34.25 hours billed, Ms. Berkowsky spent 24.03 hours on tasks related to

writing, editing, and preparing to file the motion to compel, including

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reviewing relevant records and researching various legal issues. See Pl. Ex. A

at 2-3. The remainder of the time billed was spent reviewing production

responses, flagging and researching issues, and conferring with opposing

counsel, which included discussions about a revised HIPAA agreement that

would cover the information the FDOC wanted to redact from the subject

records. See id. at 2.

The FDOC contends the number of hours billed was not reasonable

because there is no itemization of tasks completed, more time was spent than

was necessary to prepare a “very simple motion,” counsel “engages in block

billing and duplicative efforts,” and editing the HIPAA agreement was not

pertinent to the motion. FDOC Resp. at 5-8. The FDOC asks the Court to cap

the total amount of hours at 5.5, which is the number of hours the Orlando

Division found to have been reasonable “for a highly skilled litigator who

brought a simple motion to compel.” See id. at 8 (citing Rodriguez v. GEICO

Gen. Ins. Co., No. 6:19-cv-1862-ORL-40GJK, 2020 WL 1451659, at *1, 3 (M.D.

Fla. Mar. 25, 2020)).

Many of the FDOC’s arguments are unconvincing. Plaintiff does indeed

provide a chart that explains the tasks completed in preparing the motion to

compel. See generally Pl. Ex. A. And given the number of email

communications and phone calls between the parties and that the subject

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disclosures involved potential HIPAA concerns, it does not appear the motion

or the issues were “very simple.” See, e.g., Order (Doc. 357). Cf. Rodriguez, 2020

WL 1451659, at *1, 3 (noting the motion to compel was unopposed). In fact,

HIPAA concerns appear to have been central to the parties’ dispute. As the

Court noted in its Order granting the motion to compel, the FDOC redacted

information from the subject documents in part because the HIPAA agreement

the parties entered did not cover the information and the FDOC refused to

entertain a new or revised agreement that would. See Order (Doc. 357) at 6-7.

As such, the FDOC’s contention that the HIPAA entry (on the billing chart)

was not pertinent to the motion to compel is unconvincing. See FDOC Resp. at

7-8.

The Court finds one of the FDOC’s points compelling with respect to the

number of hours billed. A review of the billing chart shows some “block billing”

and what appear to be redundant or repetitive tasks. See Pl. Ex. A at 2-3. An

attorney “is not required to record in great detail how each minute of [her] time

was expended.” Hensley, 461 U.S. at 437 n.12. However, at a minimum, counsel

should “identify the general subject matter of [her] time expenditures.” Id.

“Block billing” has been criticized for “mak[ing] judicial review unnecessarily

difficult” because such billing practices “lump[] together multiple activities in

a single entry with no indication how much time was spent on each task.”

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Zachloul v. Fair Debt Collections & Outsourcing, No. 8:09-cv-128-T-27MAP,

2010 WL 1730789, at *3 (M.D. Fla. Mar. 19, 2010) (citing Hensley, 461 U.S. at

437). See also Trove Brands, LLC v. JH Studios, Inc., No. 8:19-cv-1809-KKM-

AAS, 2022 WL 827789, at *4 (M.D. Fla. Mar. 3, 2022) (“When attorneys include

multiple tasks in a single time entry, it is nearly impossible for a reviewing

court to determine what time was spent on what task.”).

Most of the hours Ms. Berkowsky recorded (23.76) were dedicated to

writing, editing, or preparing to file the motion to compel. See Pl. Ex. A at 2-3.

But seven of the entries (totaling 18.91 hours) are described in a “block,” with

no indication of how much time was spent on each task. Id. at 2. Additionally,

some of the tasks included in the “block” description appear redundant. For

instance, prior to drafting the motion to compel, Ms. Berkowsky spent time

“review[ing] production to flag issues,” and “[r]esearching issues.” Id. When

drafting and editing the motion to compel, Ms. Berkowsky again “[r]eview[ed]

records produced” and “[r]esearch[ed] the validity of the defenses and claims”

the FDOC raised. Id. The Court acknowledges this is a complex case that has

required extensive discovery, and research is not a static endeavor but a

recursive process. However, these entries appear duplicative. Finally, five of

the last six entries in the billing chart are not sufficiently explained but rather

vaguely say, “see above,” appear clerical in nature, or appear redundant (1.71

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for “Docketing/Pleadings” and 2.14 for the same; .30 for “calculating hours”; .12

for “finalizing exhibits”; and .58 for editing). Id. at 3.

For the reasons noted, the Court cannot conclude the total hours

expended on the motion to compel (34.25) were reasonable and finds a

reduction is appropriate. Given the use of “block billing” for a majority of the

hours spent on the motion to compel (23.76), which includes entries that

appear duplicative of others, the Court finds an across-the-board reduction is

warranted. See Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008)

(“When a district court finds the number of hours claimed is unreasonably

high, the court has two choices: it may conduct an hour-by-hour analysis or it

may reduce the requested hours with an across-the-board cut.”).

The Court will reduce the number of hours Ms. Berkowsky claims by

thirty percent (from 34.25 to 23.97).

Conclusion on Attorney’s Fees

Plaintiff is entitled to recover from the FDOC attorney’s fees incurred in

bringing the subject motion to compel in the amount of $5,680.89 (23.97 hours

multiplied by an hourly rate of $237.00).

II. Motion to Compel Subpoena Responses or to Exclude Related

Evidence and Testimony

Plaintiff asks the Court to compel non-party Carl Wesley Kirkland, Jr.

to produce documents responsive to a Rule 45 subpoena, which Plaintiff served

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on January 4, 2023, or alternatively to exclude evidence and testimony relating

to the undisclosed documents under Rule 37(c)(1). See Mot. to Compel at 1.

Plaintiff also seeks to recover reasonable attorney’s fees incurred in bringing

the motion under Rule 37(a)(5).3 Id. In response (Doc. 381; Mot. to Compel

Resp.), the FDOC contends it produced the requested documents the same day

the motion was filed and before Kirkland’s second deposition was taken.4 See

Mot. to Compel Resp. at 2, 6. Plaintiff filed a reply (Doc. 384) but did not receive

leave of Court before doing so. As such, the reply is due to be stricken. See M.D.

Fla. R. 3.01(d) (“Without leave, no party may file a reply directed to a response

except a response to a motion for summary judgment.”).

Given Plaintiff received a response to the subpoena, the motion is due to

be denied as moot.

3 Plaintiff does not explain whether Rule 37 subparagraphs (a)(5) or (c)(1)

would apply in the context of a party seeking to enforce a non-party subpoena

served under Rule 45. See, e.g., Bailey Indus., Inc. v. CLJP, Inc., 270 F.R.D.

662, 672 (N.D. Fla. 2010) (“Rule 37(a) does not appear to govern motions to

compel production of documents made pursuant to Rule 45.”). The Court need

not decide whether Rule 37 applies under the circumstances because it appears

the motion is moot.

4 The FDOC identified Kirkland as a hybrid expert witness. See Mot. to Compel

at 2. As such, Plaintiff served a Rule 45 subpoena “to establish the foundation

for the opinion testimony [Kirkland] intends to proffer at trial.” Id. at 3. See

also Doc. 376-1 (subpoena). The FDOC initially moved to quash the subpoena

on numerous grounds, see Doc. 368, but, after conferring with opposing

counsel, withdrew the motion, see Doc. 373.

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III. Conclusion

Accordingly, it is now

ORDERED:

1. The FDOC must pay Plaintiff attorney’s fees in the amount of

$5,680.89.

2. Plaintiff's motion to compel responses to a Rule 45 subpoena or to

exclude evidence and testimony related to the subpoenaed records (Doc. 376)

is DENIED as moot.

3. Plaintiffs unauthorized reply (Doc. 384) is STRICKEN.

DONE AND ORDERED at Jacksonville, Florida, this 25th day of April

2023.

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BRIAN/J . DAVIS

United States District Judge

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C:

Counsel of Record

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