The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HYDE PARK STORAGE SUITES
DAYTONA, LLC; and HYDE PARK
STORAGE SUITES, INC.,
Plaintiffs,
v. Case No. 6:20-cv-1320-RBD-RMN
CROWN PARK STORAGE SUITES,
LLC; and RICHARD A. LOMAN,
Defendants.
____________________________________
ORDER
Before the Court are Defendant Richard A. Loman’s Motion for Attorney’s
Fees (Doc. 206 (“Motion”)), U.S. Magistrate Judge Robert M. Norway’s Report and
Recommendation (Doc. 215 (“Second R&R”)), and Loman’s Objections (Doc. 216).
On de novo review, the Second R&R is due to be adopted.
BACKGROUND
Plaintiffs brought claims against Defendants for trade dress infringement,
false advertising, common law unfair competition, and against Loman specifically,
breach of contract—on all of which Defendants prevailed at trial. (Doc. 178.)
Defendant Crown Park Storage Suites then moved for attorney’s fees and costs
under the Lanham Act, and Defendant Loman moved for attorney’s fees and costs
associated with the breach of contract claim against only him. (Doc. 190.) On
referral, Judge Norway recommended that the Court deny Crown Park’s
requested Lanham Act fees but grant Loman breach of contract fees—but only if
they were “segregable from the fees incurred defending against” Plaintiffs’ other
claims. (Doc. 203 (“First R&R”), p. 19.) The parties did not object, so the Court
adopted and confirmed the First R&R in its entirety. (Doc. 205.)
Loman then filed this Motion asking the Court to award him $73,805.00 in
attorney’s fees and $5,372.45 in costs. (Doc. 206, p. 15.) On referral, Judge Norway
determined that only two of Loman’s billing entries—totaling $255.00 in attorney’s
fees—were “segregable” from the fees incurred defending against Plaintiffs’ other
claims, as he previously cautioned. (Doc. 215, pp. 9, 13.) Judge Norway also
recommended that the Court award Loman no costs. (Id. at 10–13.) Loman timely
objected to the Second R&R (Doc. 216) and Plaintiffs filed a response (Doc. 221).
The matter is ripe.
STANDARDS
When a party objects to a magistrate judge’s findings, the district judge must
“make a de novo determination of those portions of the report . . . to which an
objection is made.” 28 U.S.C. § 636(b)(1). The district judge “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” Id. The district judge must consider the record independent of
the magistrate judge’s report. See Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990). “Parties filing objections to a magistrate’s report
and recommendation must specifically identify those findings objected to.
Frivolous, conclusive, or general objections need not be considered by the district
court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). “[A] party who fails
to object to a magistrate judge’s report and recommendation waives the right to
challenge on appeal the district court’s order based on unobjected-to factual and
legal conclusions.” Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185,
1191 (11th Cir. 2020) (cleaned up).
ANALYSIS
After de novo review, the Court agrees with the Second R&R. Loman raises
various objections to the Second R&R, most of which relate to calculating his fee
award. (See Doc. 216, p. 4.) Loman’s real beef is with the First R&R, not the
Second—he disagrees with the First R&R’s conclusion that he can only claim fees
for tasks “segregable” to his breach of contract defense. (See Doc. 203, p. 19.)
Loman had the opportunity to object to the First R&R but did not, and the Court
adopted it, so it binds him. See 28 U.S.C. § 636(b)(1); Harrigan, 977 F.3d at 1191.
Attempts to re-litigate that determination here are too little —too late.
Loman next argues that Judge Norway ignored depositions, discovery, and
other tasks from the entries that were segregable, plus 219.4 hours of work either
“relating to or inseparable from” the breach of contract claim. (Doc. 216, pp. 6, 9.)
“The party seeking fees has the burden to allocate them to the issues for which fees
are awardable or to show that the issues were so intertwined that allocation is not
feasible.” Gray v. Novell, Inc., No. 8:06-cv-1950, 2012 WL 3871872, at *4 (M.D. Fla.
Sept. 6, 2012) (cleaned up). Here, Judge Norway reviewed the entries (Doc. 206-2)
and only found that $255 of those fees were segregable as breach of contract time
entries. (See Doc. 215, p. 9.) Judge Norway also disallowed the 219.4 hours of work
Loman claims is connected to the breach of contract claim, presumably because
“relating to or inseparable from” is the opposite of “segregable.” Loman also failed
to indicate which entries contained this supposably segregable work. So Loman
failed to meet his burden. See Gray, 2012 WL 3871872, at *4.
Relatedly, Loman argues that all his trial fees are segregable for the breach
of contract claim because the Court restricted his ability to participate in the trial
to just that claim. (Doc. 216, pp. 2–3, 9–10.) The Court did not. The Court told each
Defendant’s counsel they could not duplicate openings, closings, or witness
examinations to the extent their interests aligned—an unremarkable instruction.
(Doc. 213, pp. 8:23–9:8, 11:7–25; see Doc. 216-1, p. 3.)
Finally, Loman objects to Judge Norway’s recommendation that the Court
award no mediation costs. (Doc. 216, p. 4.) Mediation costs are neither provided
for in the Lease Agreement (see Doc. 206-1, ¶ 27), nor are taxable costs awardable
under 28 U.S.C. § 1920. (See Doc. 215, pp. 11-12); see also Gary Brown & Assocs., Ine.
v. Ashdon, Inc., 268 F. App’x 837, 846 (11th Cir. 2008). So Loman cannot recover
them.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED:
1. Loman’s Objections (Doc. 216) are OVERRULED.
2. The Second R&R (Doc. 215) is ADOPTED AND CONFIRMED and
made a part of this Order in its entirety.
3. The Motion (Doc. 206) is GRANTED IN PART AND DENIED IN
PART:
a. The Motion is GRANTED in that Defendant Richard A. Loman
is AWARDED $255.00 in attorney’s fees.
b. In all other respects, the Motion is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 10, 2024.
Miki
ROY B. DALTON, JR.
United States District Judge