Rodriguez v. GeoVera Specialty Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-21173-CIV-O=SULLIVAN

Case No. 18-23585-CIV-O’SULLIVAN

[CONSENT]

JOSE RODRIGUEZ and

MARCEE K. RODRIGUEZ,

Plaintiffs,

v.

GEOVERA SPECIALTY

INSURANCE COMPANY,

Defendant.

________________________________/

ORDER

THIS MATTER is before the Court on the Plaintiffs Jose Rodriguez’s and Marcee

K. Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for

Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.

18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20).

BACKGROUND

This matter stems from two breach of contract actions brought by Jose

Rodriguez and Marcee K. Rodriguez (collectively, “plaintiffs”) against their homeowner’s

insurance carrier, GeoVera Specialty Insurance Company (hereinafter “defendant”). The

cases were consolidated and on February 26, 2020, the jury returned a verdict in favor

of the plaintiffs in both cases in the total amount of $111,087.63. See Verdict Form (DE#

119 in Case No. 19-cv-21173-JJO; DE# 142 in Case No. 18-cv-23585-JJO, 2/27/20).

Consistent with the jury’s verdict, the Court entered a final judgment in favor of the

plaintiffs and against the defendant on the same day. See Final Judgment (DE# 113 in

Case No. 19-cv-21173-JJO; DE# 136 in Case No. 18-cv-23585-JJO, 2/26/20).

On March 24, 2020, the plaintiffs filed a motion to tax costs in the amount of

$59,788.87. See Plaintiffs Jose Rodriguez's and Marcee K. Rodriguez's Motion to Tax

Costs and Supporting Memorandum of Law, Sworn Bill of Costs and Supporting

Documentation (DE# 129 in Case No. 19-cv-21173-JJO; DE# 152 in Case No. 18-cv-

23585-JJO, 3/24/20). “In the reply, the plaintiff[s] agreed to reduce the amounts

requested for mediation, travel, research, courier/shipping charges, and parking” by

$6,739.56, thereby reducing their costs to $53,049.31. See Order (DE# 145 in Case No.

19-cv-21173-JJO; DE# 168 in Case No. 18-cv-23585-JJO at 2 n. 1, 5/26/20). Of this

amount, the Court awarded the plaintiffs $9,175.97 in taxable costs pursuant to 28

U.S.C. § 1920. Id. at 23.

On May 13, 2020, the plaintiffs filed the instant motion for attorney’s fees and

costs. See Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to

Determine Amount of Attorneys’ Fees and Costs, for Lodestar Multiplier, and for

Entitlement to Prejudgment Interest (DE# 138 in Case No. 19-cv-21173-JJO; DE# 161

in Case No. 18-cv-23585-JJO, 5/21/20) (hereinafter “Motion”). The defendant filed its

response in opposition on June 8, 2020. See Response in Opposition to Plaintiffs Jose

Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to Determine Amount of

Attorneys’ Fees And Costs, for Lodestar Multiplier, and for Entitlement to Prejudgment

Interest (DE# 148 in Case No. 19-cv-21173-JJO; DE# 171 in Case No. 18-cv-23585-

JJO, 5/21/20) (hereinafter “Response”). The plaintiffs filed their reply on June 18, 2020.

See Plaintiffs Jose Rodriguez and Marcee K. Rodriguez’s Reply to Defendant’s

Response in Opposition to Plaintiffs[’] Verified Motion to Determine Amount of

Attorneys’ Fees and Costs, for Lodestar Multiplier, and for Entitlement to Prejudgment

Interest and Objection to Defendant’s Request for Hearing (DE# 155 in Case No. 19-cv-

21173-JJO; DE# 176 in Case No. 18-cv-23585-JJO, 6/18/20) (hereinafter “Reply”).

This matter is ripe for adjudication.

REQUEST FOR HEARING

The defendant requests a hearing on the instant Motion. Response at 1-2. The

plaintiffs object to the defendant’s request for a hearing stating that “it is not necessary

and would not serve any constructive purpose in light of the extensive expert

reports on both sides including sworn testimony by counsel and their experts and

detailed costs documentation.” Reply at 2.

The Court has carefully reviewed the parties’ filings, including their supporting

documents, and finds that a hearing on the instant motion is not necessary. “A hearing

on [a] fee issue is required ‘where an evidentiary hearing was requested, where there

were disputes of fact, and where the written record was not sufficiently clear to allow the

trial court to resolve the disputes of fact . . . . An evidentiary hearing is unnecessary for

issues about which the district court possesses sufficient expertise: ‘Such matters might

include the reasonableness of the fee, the reasonableness of the hours and the

significance of [the] outcome.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242,

1245 (11th Cir. 2003) (quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d

1292, 1303-04 (11th Cir. 1988)). Accordingly, the defendant’s request for a hearing is

DENIED.

ANALYSIS

A. Attorney’s Fees

The plaintiffs seek $1,337,264.42 in attorney’s fees. Motion at 1. The defendant

argues that significant reductions to the amount of fees sought by the plaintiffs are

warranted. See Response at 8-20.

1. Entitlement

The plaintiffs obtained a judgment in their favor in the total amount of

$111,087.63. See Final Judgment (DE# 113 in Case No. 19-cv-21173; DE# 136 in Case

No. 18-cv-23585, 2/26/20). Accordingly, the plaintiffs are the prevailing party and are

entitled to an award of reasonable attorney’s fees.

2. Amount

Having determined that the plaintiffs are entitled to an award of attorney’s fees,

the Court must next address the appropriate amount of that fee award.

In calculating a reasonable fee award, the Court must consider the number of

hours reasonably expended on this litigation, together with the customary fee charged in

this community for similar legal services. See Norman, 836 F.2d at 1299. These two

figures are then multiplied together, resulting in a sum commonly referred to as the

“lodestar.” The lodestar “embodies a presumptively reasonable fee.” Yellow Pages

Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1164 (11th Cir. 2017). Nonetheless, the

lodestar may be adjusted in order to reach a more appropriate fee award under certain

circumstances. Blum v. Stenson, 465 U.S. 886, 888 (1984).

a. Hourly Rate

The Court must first evaluate plaintiffs’ fee request in terms of the appropriate

hourly rate. The Supreme Court has held that a reasonable hourly rate is to be

measured by “prevailing market rates in the relevant community.” Blum, 465 U.S. at

895. In determining the prevailing market rates, the Court should consider several

factors including: “the attorneys’ customary fee, the skill required to perform the legal

services, the attorneys’ experience, reputation and ability, the time constraints involved,

preclusion from other employment, contingency, the undesirability of the case, the

attorneys’ relationship to the client, and awards in similar cases.” Mallory v. Harkness,

923 F. Supp. 1546, 1555 (S.D. Fla. 1996), aff'd, 109 F.3d 771 (11th Cir. 1997) (citing

Dillard v. City of Elba, 863 F. Supp. 1550, 1552 (M.D. Ala. 1993)).

Generally, acceptable proof of the market rate may be comprised of testimony

and direct evidence from other legal practitioners in the relevant legal community who

are familiar with the type of legal service provided and the prevailing market rate for

such work. Norman, 836 F.2d at 1299. Furthermore, the Court may make a fee award

based on its own experience where documentation and testimony are inadequate or the

fees claimed seem expanded. Id. at 1303 (citing Davis v. Bd. of Sch. Comm’rs of Mobile

Cty., 526 F.2d 865, 868 (5th Cir. 1976)).

The hourly rates requested for each timekeeper are outlined in the chart towards

the end of this section. See infra. The plaintiffs argue that “[t]he rates charged by the

respective Plaintiffs’ counsels are well within the range of hourly rates charged by

attorneys of similar experience in the local market.” Motion at 6-7. The plaintiffs support

the requested hourly rates with the declaration of their expert, Ramon A. Abadin, and

the affidavits of its attorneys, Anthony Accetta, Lazaro Vazquez and Eduardo Gomez.

Reply at 2; Declaration of Reasonable Attorney’s Fees in Support of Plaintiffs' Motion for

Attorneys' Fees and Costs (DE# 138-5, 5/13/20) (hereinafter “Decl. of Pls.’ Expert”);

Certification, Verification, and Affidavit of Lazaro Vazquez (DE# 138-1, 5/13/20)

(hereinafter “Aff. of Lazaro Vazquez”); Certification, Verification, and Affidavit of Anthony

Accetta, Esquire (DE# 138-2, 5/13/20) (hereinafter “Aff. of Anthony Accetta”);

Certification, Verification, and Affidavit of Eduardo Gomez (DE# 138-4, 5/13/20)

(hereinafter “Aff. of Eduardo Gomez”). The plaintiffs have also filed state court orders

awarding fees to Mr. Accetta, Mr. Vazquez and Mr. Gomez. See State Court Fee

Orders (DE# 138-1 at 31-41;138-2 at 21-55; 138-4 at 17, 5/13/20).

The defendant’s expert opines that “the rates . . . claimed by Attorney Lazaro

Vazquez, Attorney Anthony Accetta, and Attorney Eduardo Gomez are not in keeping

with the prevailing and customary rates and hours incurred in cases of this nature in

Miami-Dade County” and proposes the following hourly rate ranges as reasonable:

“Anthony Accetta ($475 - $525); Lazaro Vazquez ($400 - $450); Eduardo Gomez ($400

- $450); Paralegal ($150); and Law Clerk ($75).” Response at 10; Declaration of

Thomas Scott (DE# 148-1 at ¶ 11, 6/8/20) (hereinafter “Decl. of Def’s Expert”).1

The plaintiffs state that their lead counsel,2 Anthony Accetta, “is a Board Certified

1 The defendant has also filed the affidavit of their counsel, Robert C. Groelle. See

Affidavit of Robert C. Groelle (DE# 148-4, 6/8/20). Mr. Groelle attests that his law firm

billed at hourly rates of $165.00 for partners, $145.00 for associates and $95.00 for

paralegals. Id. at ¶ 3. Mr. Groelle does not disclose the background and experiences of

these timekeepers, the number of hours his firm expended or the total amount billed for

this case. It is not uncommon for law firms to negotiate a lower hourly rate in exchange

for a higher volume of cases from an insurance carrier. Without more information, the

hourly rates charged by timekeepers at Mr. Groelle’s law firm is of limited assistance to

the Court.

2 Mr. Vazquez served as lead counsel until Mr. Accetta joined the case in August 2019

and took over as lead counsel. Declaration of Lazaro Vazquez (DE# 138-1 at ¶ 27,

5/13/20).

Civil Trial Lawyer as recognized by the Florida Bar” and “has a very busy law practice

. . . [that] handles mostly commercial cases that compensate him by his hourly rate and

not on a contingency basis.” Reply at 2-3. The plaintiffs argue that if the Court were to

reduce Mr. Accetta’s $650 hourly rate (and not apply the requested 2.0 multiplier), it

would discourage Mr. Accetta from representing other insureds in the future. Id. at 3

(stating that “[i]f this Court were to consider the Defendant’s request to reduce [Anthony

Accetta’s] hourly rate and deny his request for a multiplier, this would deter Mr. Accetta

from ever assisting other insureds who have been wronged by insurance companies but

cannot afford his representation.”). At the same time, the plaintiffs maintain that “Mr.

Accetta has extensive experience litigating in insurance coverage and commercial

litigation matters” and, along with his co-counsel in the instant case, “are clearly known

as a threat to the insurance industry.” Response at 3-4.

The plaintiffs submitted eight state court fee orders in support of the hourly rates

requested for Mr. Vazquez, Mr. Accetta and Mr. Gomez. The Court notes that none of

these cases awarded a multiplier to these attorneys.3 See State Court Fee Orders (DE#

138-1 at 31-41;138-2 at 21-55; DE# 138-4 at 17; 5/13/20). In fact, only one case even

3 In total, the plaintiffs filed eight state court orders. However, two of those orders

concerned fees for sanctions under 57.105 and for violating a procedural rule. See

State Court Order (DE# 138-2 at 24-30; DE# 138-4 at 17). Thus, a multiplier would not

have been at issue in those proceeding.

discussed the imposition of a multiplier and the state court judge declined to award it. Id.

at 138-2 at 22.

Given that insurance coverage litigation already represents a significant part of

Mr. Accetta’s law practice, to the extent that he, along with his co-counsel, assert that

they are considered “a threat to the insurance industry,” the Court is confident that a

reasonable hourly rate consistent with the prevailing market rates in this community

would not deter Mr. Accetta and his co-counsel from continuing to litigate insurance

coverage cases.

The plaintiffs also note that the defendant’s expert advocated for an hourly rate of

$625.00 for certain law partners in a different case, Graves v. Plaza Med. Centers,

Corp., Case No. 10-cv-23382-FAM. See Reply at 3 (stating that “[i]t’s noteworthy that

[the defendant’s expert] testified in Graves, that a rate of $625/hr. is reasonable for

select partners in a claim brought under the Fair Claims Act, which settled without a

jury trial.”) (emphasis in original).

Graves was a qui tam civil action which included allegations of Medicare Part C

fraud. Graves v. Plaza Med. Centers, Corp., No. 1:10-23382-CV, 2018 WL 3699325, at

*4 (S.D. Fla. May 23, 2018), report and recommendation adopted, No. 10-23382-CIV,

2018 WL 3697475 (S.D. Fla. July 13, 2018). The plaintiffs emphasize that Graves

“settled without a jury trial.” Reply at 3. Although the parties in Graves did not go to trial,

the case was litigated extensively. At the time of the fee award, the parties in Graves

had litigated the case for approximately nine years and nine months and there were 960

docket entries.

The Court in Graves awarded a $625.00 hourly rate to only two attorneys.4 One

of those attorneys was “the former Deputy Chief of the Criminal Fraud Division and

head of the Health Care Fraud Unit of the United States Department of Justice [and

was] widely recognized to be among the most sophisticated health care attorneys in the

United States.” Graves, 2018 WL 3697475 at *7. The other attorney had been practicing

for 48 years and “ha[d] extensive experience in medical malpractice cases, including

more than 200 jury trials, 100 bench trials, and 25 verdicts in excess of seven figures.”

Id. at *4. Given the impressive backgrounds and qualifications of these attorneys, it is

not surprising that the defendant’s expert would opine that an hourly rate of $625.00

was reasonable.

Having considered the parties’ submissions, counsels’ reputation and experience

in the applicable legal areas and the Court’s familiarity with fees in general, the Court

finds that the following hourly rates are reasonable and appropriate for this case:

Timekeeper Position Hourly Rate Hourly Rate

Sought5 Awarded

Anthony Accetta Attorney $650.00 $525.00

Lazaro Vazquez Attorney $500.00 $450.00

Eduardo Gomez Attorney $525.00 $450.00

Charles A. Luke, Jr. Law Clerk $125.00; $200.00 $125.00

Leslie M. Canales Paralegal $150.00 $150.00

4 The $625.00 hourly rate awarded was a substantial reduction from the hourly rates of

$1,090.00-$1,110.00 and $900.00 sought by the movant. Graves, 2018 WL 3699325, at

*4.

5 See Motion at 3; id. at 7 n.5.

Yanely Rodriguez- Paralegal $150.00 $150.00

Accetta

Brandon F. Paralegal $75.00 $75.00

Rodriguez

Barbie Delgado Paralegal $95.00 $95.00

Rosa Fernandez Paralegal $125.00 $125.00

The Court recognizes that Mr. Accetta, Mr. Vazquez and Mr. Gomez are skilled

attorneys, but finds the requested hourly rates to be excessive. Based on the Court’s

own knowledge and expertise in the award of attorney’s fees, the Court will award

hourly rates of $525.00 for Mr. Accetta and $450.00 for Mr. Vazquez and Mr. Gomez.

The Court finds that $150.00 is an appropriate hourly rate for paralegals in the instant

case. However, where the paralegal billed at a lower hourly rate, the Court will award

the rate requested. Law clerk Charles A. Luke, Jr. billed at two different rates, $125.00

and $200.00. The most likely explanation is that Mr. Luke became an attorney.

However, because the plaintiffs provided no explanation for the rate change, the Court

will award Mr. Luke the lower of the two hourly rates.

b. Hours Expended

The Court must next evaluate the plaintiffs’ requested fee for reasonableness in

terms of the total hours expended by the plaintiffs’ counsel. The Court must exercise

independent judgment when reviewing a claim for hours reasonably expended. Norman,

836 F.2d at 1301-02. Hours deemed to be “excessive, redundant, or otherwise

unnecessary” should be excluded. Id. at 1301.

It is important to keep accurate and current records of work done and time spent

on a case, especially when a third party — someone other than the client — may pay

the bills. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “Attorneys who anticipate

making a fee application must maintain contemporaneous, complete and standardized

time records which accurately reflect the work done by each attorney.” Nat’l Ass’n of

Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). It is

necessary for attorneys to identify the subject matter of their time expenditures.

Hensley, 461 U.S. at 437. If there is inadequate documentation or if the Court finds a

claim for hours to be excessive or unnecessary, the Court may reduce the number of

hours for which fees will be awarded. See Loper v. New York City Police Dep’t, 853 F.

Supp. 716, 721 (S.D.N.Y. 1994) (“where adequate contemporaneous records have not

been kept, the court should not award the full amount requested”).

The plaintiffs’ Motion requests reimbursement for 1,711.65 hours for work

performed by attorneys, paralegals and a law clerk. The plaintiffs support their fee

request by submitting itemized billing records, the affidavits of attorneys Anthony

Accetta, Lazaro Vazquez, Eduardo Gomez and the declaration of the plaintiffs’ fee

expert. The total number of hours requested for each timekeeper is outlined in the chart

below.

Timekeeper Position Hours Sought

Anthony Accetta Attorney 374.85

Lazaro Vazquez Attorney 606.10

Eduardo Gomez Attorney 258.05

Charles A. Luke, Jr. Law Clerk 12.63

Yanely Rodriguez-Accetta Paralegal 116.35

Leslie M. Canales Paralegal 187.07

Brandon F. Rodriguez Paralegal 124.40

Barbie Delgado Paralegal 16.50

Rosa Fernandez Paralegal 15.70

Motion at 3; id. at 7 n.5.

The plaintiffs argue that because there was a contingency fee agreement,

“counsel was motivated to be as economical and efficient with their time as possible in

fully prosecuting these cases.” Motion at 5. They further argue that “many of the hours

expended by the [plaintiffs’ counsel were] largely the product of defense counsel’s

aggressive defense of these cases on the basis of insurance fraud and failure to

cooperate with deadlines involving preparing the pretrial stipulation, and conferring on

joint jury instructions and verdict forms.” Id. The plaintiffs also cite the defendant’s

numerous document requests. Id. (stating that “Geo[V]era chose to request a large

number of documents through various document requests which the [plaintiffs’ counsel]

had to carefully review and analyze.”) Id. Lastly, the plaintiffs cite their favorable

outcome. Id. at 6 (noting that prior to the litigation, the defendant had offered the

plaintiffs no money, during the litigation the defendant offered the plaintiffs $5,000.00

each per claim and at the conclusion of the litigation, the jury awarded the plaintiffs

$111,087.63).

The defendant seeks to substantially reduce the amount of attorney’s fees

requested by the plaintiffs. The defendant notes that its expert found “several instances

of duplicative work, overstaffing, internal conferences between lawyers, and other

problematic billing practices.” Response at 11 (internal quotation marks omitted). The

defendant also challenges the plaintiffs’ characterization of the defendant’s litigation

strategy as an “aggressive defense.” Id. at 12. The defendant notes that the plaintiffs

only questioned one witness regarding the defendant’s affirmative defense of

fraud/misrepresentation and that only approximately five pages of the trial transcript

addressed the topic. Id. The defendant also notes that its counsel “routinely prepared

the first drafts of the Joint Stipulations, Jury Instructions, Witness Lists, Exhibits Lists,

and other similar joint submissions.” Id. Lastly, with respect to the plaintiffs’ complaints

about voluminous document production, the defendant asserts that in both cases, the

plaintiffs produced approximately 385 pages of documents. Id.

i. Plaintiffs’ Attempt to Cure Block Billing Entries

The defendant argues that “numerous billing entries could not be properly

evaluated because they were either vague or ‘block billing.’” Response at 14. “‘Block

billing’ occurs when an attorney lists all the day’s tasks on a case in a single entry,

without separately identifying the time spent on each task.” Ceres Envtl. Servs., Inc. v.

Colonel McCrary Trucking, LLC, 476 F. App’x 198, 203 (11th Cir. 2012).

The plaintiffs attempt to cure their attorneys’ use of block billing by submitting

amended time entries with their Reply. See Response to Defense Expert’s [Lazaro

Vazquez] Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 1-8;

6/18/20); Response to Defense Expert’s [Anthony Accetta] Affidavit Time Analysis re.

Block Billing Objections DE# 155-2 at 9-16; 6/18/20); Response to Defense Expert’s

[Eduardo Gomez] Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 17-

20; 6/18/20).

The Court will not accept the plaintiffs’ belated attempts at curing their block

billing entries. “Attorneys who anticipate making a fee application must maintain

contemporaneous . . . time records which accurately reflect the work done by each

attorney.” Nat’l Ass’n. of Concerned Veterans, 675 F.2d at 1327 (emphasis added).

Here, the plaintiffs’ attorneys’ belated revisions, some which date back to 2017, 2018

and 2019, represent mere guesswork by counsel as to the amount of time actually

spent on each task. Block billing “mak[es] it difficult to ascertain how much time was

spent on each task.” Office of the Attorney Gen. v. Moving & Storage Accounting Inc.,

No. 18-CV-63144, 2020 WL 5217183, at *4 (S.D. Fla. Aug. 14, 2020), report and

recommendation adopted, No. 18-CIV-63144-RAR, 2020 WL 5215151 (S.D. Fla. Aug.

31, 2020). Block billing also “results in imprecision in an attorney’s records.” Prince v.

Marson, No. 8:19-CV-549-T-35AAS, 2020 WL 1891191, at *2 (M.D. Fla. Apr. 16, 2020)

(citation and internal quotation marks omitted). Counsels’ belated guestimates do not

render the plaintiffs’ billing records any more precise. Therefore, the Court will not

accept these revised time entries. An across-the-board reduction to account for

impermissible block billing is warranted and will be applied below. See Ceres Envtl.

Servs., Inc., 476 F. App’x at 203 (noting that “Courts have . . . approved across-the-

board reductions in block-billed hours to offset the effects of block billing.”).

ii. Expert Declarations

The parties’ experts disagree on the complexity of the instant case. The plaintiff’s

expert describes the instant case as one that was vigorously and aggressively defended

by the defendant. Decl. of Pls.’ Expert at ¶ 12. He notes that this matter involved two

separate claims which “were litigated over the course of [two] years and ultimately

consolidated for trial.” Id. at ¶ 17. The plaintiffs’ expert notes that there were 79

motions6 filed, including cross-motions for summary judgment and ten motions in limine,

nine depositions taken and that the jury trial lasted three days. Id.

By contrast, the defendants’ expert characterizes the case as “a simple breach of

contract claim by an insured against its homeowner[’s insurance] carrier for water

damage arising from two incidents in December of 2015 and as a result of Hurricane

Irma on September 10, 2017.” Decl. of Def’s Expert at ¶ 12. The defendant’s expert

notes that the total amount recovered for both claims was $111,087.61. Id. The

defendant’s expert further notes that the trial only lasted three days, that seven

witnesses were called and that there were approximately 30 trial exhibits introduced by

each party. Id. The defendant’s expert further states that while cross-motions for

summary judgment were filed, they were “largely denied” and that the motions in limine

were “[n]oncomplex.” Id.

Although the parties’ experts disagree on the complexity of the case and the

manner in which it was litigated, both experts propose reductions to the plaintiffs’ billing

records. The plaintiffs’ expert proposes an across-the-board ten percent reduction to the

billing records of Mr. Accetta, Mr. Vazquez and Mr. Gomez to account for “[t]he reality

[that] . . . multiple lawyers working on the same case necessarily results in duplication of

6 It is unclear how the plaintiffs’ expert arrives at 79 motions. According to CM/ECF, to

date, 31 motions (12 motions by the plaintiffs and 19 motions by the defendant) have

been filed in Case No. 18-cv-23585-JJO and 40 motions (12 motions by the plaintiffs

and 28 motions by the defendant) have been filed in Case No. 19-cv-21173-JJO, for a

total of 71 motions. The Court notes that many of the same motions were filed in both

cases and were nearly identical. See, e.g., Motions in Limine. Thus, the total number of

unique motions between the two cases is less than the 79 motions suggested by the

plaintiffs’ expert.

work among the law firms involved.” Decl. of Pls.’ Expert at ¶ 18.

The defendant’s expert proposes “a thirty five percent reduction for A. Accetta

. . ., [a] twenty five percent reduction for L. Vazquez and [a] twenty five percent

[reduction] for E. Gomez.” Decl. of Def’s Expert at ¶ 19. The defendant’s expert

proposes these reductions to account for “multiple problems in the billing records” for

the reasons discussed below. Id.

The defendant’s expert identified in Mr. Accetta’s billing records 63 entries with

an even number of hours which the defendant’s expert believes is one of several “red

flags.” Decl. of Def’s Expert at 15(h).7 The defendant’s expert lists several instances

where Mr. Accetta’s time entries appear excessive for the work performed. According to

the defendant’s expert, Mr. Accetta billed a total of 123 hours for reviewing the file, 22

hours for preparing for and attending the deposition of Brad LaBonde (a deposition

which lasted only 1.55 hours) and 92.5 hours for trial preparation and trial attendance

(including three consecutive days where Mr. Accetta billed 20 hours each day). Id. The

defendant’s expert further notes that some time entries included block billing. Id.

With respect to the billing records for Mr. Vazquez’ law firm, the defendant’s

expert notes numerous instances of excessive time entries. Decl. of Def’s Expert at

¶ 15(i). According to the defendant’s expert, Mr. Vazquez had 20 entries for client

conferences totaling 61 hours. Id. The defendant’s expert opined that 61 hours for a

case involving “two claims for property damage . . . seem[ed] disproportionately high.”

7 The Court disagrees with the defendant’s expert that having 63 time entries with an

even number of hours, in and of itself, is a red flag. Nonetheless, the Court has carefully

reviewed the billing records for Mr. Accetta’s law firm and concludes that significant

reductions to the time entries submitted are warranted as discussed in more detail

below.

Id. The defendant’s expert also found 41 time entries for reviewing the file for a total of

83 hours. Id.

Finally, with respect to Mr. Gomez’ billing records, the defendant’s expert

calculates that Mr. Gomez spent 36 hours in lawyer conferences, 84 hours on legal

research and used block billing on some entries. Decl. of Def’s Expert at ¶ 15(j).

iii. Reductions to the Billing Records

“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.” Bivins v. Wrap It Up, Inc., 548 F.3d

1348, 1350 (11th Cir. 2008). “[T]he district court is to apply either method, not both.” Id.

at 1351.

“[I]n cases ‘[w]here fee documentation is voluminous,’ it [would] not be feasible to

require a court to 'engage in such a precise review.’” Villano v. City of Boynton Beach,

254 F.3d 1302, 1311 (11th Cir. 2001) (quoting Loranger v. Stierheim, 10 F.3d 776, 783

(11th Cir. 1994)). In the instant case, the billing records submitted by the plaintiffs total

1,711.65 hours. Therefore, an across-the-board cut rather than an hour-by-hour

analysis is appropriate. See Villano, 254 F.3d at 1311 (finding that “569.30 hours for

compensation” were “extensive enough that [the Eleventh Circuit] [did] not expect the

district court or the magistrate judge to conduct an hour-by-hour analysis”).

Upon careful review of the plaintiffs’ billing records, the Court finds that the time

entries were, for the most part, contemporaneous, complete, standardized and

accurately reflect the work done by each attorney. Some time entries, however, are

excessive, are duplicative, lack adequate detail, use block billing or constitute non-

compensable clerical work. Accordingly, a reduction to the hours requested by the

plaintiffs’ counsel is warranted.

(a.) Mr. Accetta’s Billing Records

The Court has carefully reviewed the billing records for Mr. Accetta’s law firm and

concludes that significant reductions to the time entries submitted are warranted. Mr.

Accetta’s law firm blocked billed some time entries which make it impossible for the

Court to ascertain the reasonableness of the time expended. See Response to Defense

Expert’s [Anthony Accetta] Affidavit Time Analysis re. Block Billing Objections DE# 155-

2 at 9-16; 6/18/20) (attempting to cure 41 time entries which were block billed).

Additionally, Mr. Accetta spent an excessive amount of time on certain tasks. As

noted by the defendant’s expert, Mr. Accetta spent 22 hours for preparing for and

attending the deposition of Brad LaBonde (a deposition which lasted only 1.55 hours)

and 92.5 hours for trial preparation and trial attendance (including three consecutive

days where Mr. Accetta billed 20 hours each day). Decl. of Def’s Expert at 15(h).

Other time entries are non-descript and make it difficult, if not impossible, to

determine if the task was necessary or duplicative of other time entries. For example, on

August 15, 2019, August 16, 2019, August 21, 2019, August 28, 2019 and August 29,

2019, Mr. Accetta billed one hour each day for reviewing the file. See AA Billing

Records (DE# 138-2 at 72-73). Without any additional information concerning which

portions of the file Mr. Accetta reviewed and for what purpose he was reviewing the file,

the Court cannot ascertain whether these time entries were reasonable or necessary.

The Court also finds that the participation of three law firms in this case, resulted

in overlap between the work performed by the three firms. According to the defendant’s

expert, Mr. Accetta’s law firm billed 123 hours for reviewing the file and Mr. Vazquez’

law firm billed 83 hours for reviewing the file. See Decl. of Def’s Expert at ¶ 15(h) and

(i).8 The billing records for Mr. Gomez’ law firm also include time entries for reviewing

the file (see EG Billing Records # 40, 61, 96, 102 (DE# 138-4 at 35, 37, 40-41)).

However, because of block billing, it is impossible to precisely ascertain how much time

each attorney spent reviewing the file. In any event, the Court finds that an excessive

and duplicative amount of time was spent by the plaintiff’s three attorneys in reviewing

the file.

The Court will also apply a reduction to the time entries submitted by Mr.

Accetta’s firm to account for non-compensable clerical work. For instance, on February

11, 2020, paralegal Yanely Rodriguez-Accetta billed 2.00 hours for preparing labels and

folders and assembling boxes for use at trial. See AA Billing Records (DE# 138-2 at 89).

Again, on February 12, 2020, paralegals Yanely Rodriguez-Accetta and Brandon F.

Rodriguez billed 4.00 hours and 2.00 hours, respectively, for preparing labels and

folders or assisting with preparing labels and folders. Id. On February 20, 2020, Mr.

Rodriguez spent an additional hour assembling boxes. Id. at 95. The failure to remove

clearly non-compensable billing entries such as time spent on assembling boxes and

creating labels before submitting billing records to the Court does not demonstrate good

billing judgment. “Counsel for the prevailing party should make a good faith effort to

exclude from a fee request hours that are excessive, redundant, or otherwise

8 It appears that the defendant’s expert may have calculated these totals by including

some block billed entries which contained other tasks. Even accounting for this

overinclusion of time, the Court still concludes that an excessive amount of time was

expended by the three law firms in reviewing the file.

unnecessary, just as a lawyer in private practice ethically is obligated to exclude such

hours from his fee submission.” Hensley, 461 U.S. at 434.

Paralegal Brandon F. Rodriguez billed a total of 8 hours (2.00 hours each time)

for transporting documents to and from the courthouse. See AA Billing Records (DE#

138-2 at 90, 99, 100, 101). This activity is not compensable. Other non-compensable

time entries include calling the Court to inquire about the delivery of binders and

discussing a retainer fee with the trial technical support personnel. See AA Billing

Records (DE# 138-2 at 89-90, 99-101).

The Court also found an excessive amount of time entries for organizing or

assembling binders. See AA Billing Records (DE# 138-2 at 65, 80, 85, 88-90, 92-93, 96-

97, 99, 101). In total, Mr. Accetta’s three paralegals spent approximately 39.80 hours

(almost a full workweek) assembling binders for the three-day jury trial: 18.50 hours

spent by Brandon F. Rodriguez, 12.30 hours spent by Leslie M. Canales and 9.00 hours

spent by Yanelis Rodriguez-Accetta. Id. at 85, 88-90, 92-93, 96-97, 99, 101. Paralegal

Leslie M. Canales spent an additional 7.20 hours assembling binders for other non-trial

related purposes. Id. at 65, 80, 85. These totals do not include an additional 8.00 hours

spent by paralegal Yanelis Rodriguez-Accetta organizing photocopies for trial. Id. at 88,

95. The Court finds that the amount of time expended for these activities is

unreasonable.

The Court finds many examples of excess billing, duplicative billing, block billing

and non-compensable clerical work which warrant a 35 percent reduction to the billing

records submitted by Mr. Accetta’s firm.

(b.) Mr. Vazquez’ Billing Records

The Court has carefully reviewed the billing records for Mr. Vazquez’ law firm and

concludes that some reductions to the time entries submitted are warranted. As already

noted by the defendant’s expert, Mr. Vazquez spent an excessive amount of time (61

hours) meeting with his clients and reviewing the file (83 hours). See Decl. of Def’s

Expert at ¶ 15(i). Even accounting for the likelihood that the defendant’s expert’s

calculations include some block billed entries which contain other tasks, the Court finds

that there was an excessive amount of time spent by Mr. Vazquez for these tasks which

require a reduction.

Further reductions are merited for block billing. Mr. Vazquez acknowledges at

least 28 instances of block billed entries which he belatedly attempted to cure in an

exhibit attached to the Reply. See Response to Defense Expert’s [Lazaro Vazquez]

Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 1-8; 6/18/20).

The Court also found instances of unnecessary and/or duplicative work in Mr.

Vazquez’ billing records. The Court notes that on August 16, 2020, Mr. Vazquez billed

2.00 hours for conferencing with co-counsel regarding the deposition of defendant’s

expert Ryon Plancer, 3.25 hours for attending the deposition of Mr. Plancer and 1.00

hour of travel time related to the deposition of Mr. Plancer. See LV Billing Records (DE#

138-1 at 77). These time entries are duplicative of the work performed by Mr. Accetta

who took the deposition of Mr. Plancer and billed 9.00 hours preparing for and attending

Mr. Plancer’s deposition. See AA Billing Records (DE# 138-2 at 72). This amount is in

addition to the 5.00 hours billed by Mr. Accetta’s paralegal, Leslie M. Canales, for

accessing and reviewing the file to assist Mr. Accetta with organizing the file in

preparation for Mr. Plancer’s deposition, which itself is excessive and likely non-

compensable clerical work. Id.

The Eleventh Circuit recognizes that “[t]here is nothing inherently unreasonable

about a client having multiple attorneys, and they may all be compensated if they are

not unreasonably doing the same work and are being compensated for the distinct

contribution of each lawyer.” Norman, 836 F.2d at 1302 (citing Johnson v. Univ. Coll. of

Univ. of Alabama in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)). To recover

time for multiple attorneys, the fee applicant bears the burden of showing that the time

spent by those attorneys reflects the distinct contribution of each lawyer to the case and

the customary practice of multiple-lawyer litigation. ACLU v. Barnes, 168 F.3d 423 (11th

Cir. 1999). The plaintiffs have not shown that the tasks performed by Mr. Vazquez and

Mr. Accetta relating to the deposition of Mr. Plancer reflect distinctive contributions to

the case. As such, a reduction is necessary to account for duplicative or unnecessary

time entries.

Mr. Vazquez was the only timekeeper listed on his billing records. The Court

found instances of secretarial or paralegal work which do not merit Mr. Vazquez’ high

hourly rate. See, e.g., LV Billing Records (DE# 138-1 at 47) (drafting summons); Id. at

67-68, 75-76) (drafting notices, re-notices and cross-notices of deposition); id. at 56, 73

(drafting notice of selection of mediator); id. at 63 (cancelling deposition of plaintiffs and

confirming deposition of witness).

The Court also found instances where Mr. Vazquez’ billing entries are excessive

for the task described or are insufficiently detained to support the time billed. For

example, on August 31, 2018, Mr. Vazquez’ billed a total of 4.00 hours for legal

research concerning the procedure for removal of a case to federal court, the timeliness

of the notice of removal and the waiver of removal. See LV Billing Records (DE# 138-1

at 47-48). The Court finds 4.00 hours to be excessive for the descriptions provided. On

the same day, Mr. Vazquez billed 2.00 hours for “review[ing] all information exchanged

before the removal re[garding] damages sought in state court action.” Id. at 48. Without

a more detailed description, it is impossible for the Court to evaluate the

reasonableness of the time spent on this task.

The Court found many examples of excessive time entries, duplicative billing,

block billing and secretarial or paralegal work performed by an attorney which warrant a

25 percent reduction to the billing records submitted by Mr. Vazquez’ firm

(c.) Mr. Gomez’ Billing Records

The Court has carefully reviewed the billing records for Mr. Gomez’ law firm and

concludes that some reductions to the time entries submitted for Mr. Gomez’ law firm

are warranted.

The Court will reduce Mr. Gomez’ time entries to account for block billing. Mr.

Gomez acknowledges nine instances of block billing which he attempts to cure in an

exhibit attached to the Reply. See Response to Defense Expert’s [Eduardo Gomez]

Affidavit Time Analysis re. Block Billing Objections (DE# 155-2 at 17-20; 6/18/20).

As previously noted, the defendant’s expert calculates that Mr. Gomez spent 36

hours in lawyer conferences, 84 hours on legal research and used some block billed

entries. Decl. of Def’s Expert at ¶ 15(j). Even accounting for an overestimation due to

some block billed entries which include other tasks, the Court finds that Mr. Gomez’

billing records should be reduced to account for excessive time spent on these tasks.

The Court found other instances of excessive time. For instance, Mr. Gomez

billed 4.00 hours for conferring with co-counsel in preparation for a “case management

conference” and 3.00 hours for “attend[ing the] case management conference with

Judge O’Sullivan.” See EG Billing Records (DE# 138-4 at 24). The undersigned holds

status conferences in lieu of the case management conference. The docket reflects that

the status conference before the undersigned lasted approximately 25 minutes. See

Minute Entry (DE# 92 in Case No. Case No. 18-cv-23585-JJO, 12/13/19). Billing 7.00

hours (almost a full day) for preparing for and attending a 25-minute status conference

is grossly excessive.

The Court also notes that Mr. Gomez’ paralegal, Barbie Delgado, billed 0.20

hours (12 minutes) for reviewing the paperless minute entry for that status conference

and updating the file. See EG Billing Records (DE# 138-4 at 24). It is unclear what

update Ms. Delgado could have made to the file based on the information in the

paperless minute entry or how Ms. Delgado could have spent 12 minutes reviewing a

total of 40 words.

The Court also found multiple instances of duplicative and/or unnecessary work.

For example, Mr. Gomez billed 2.00 hours for attending the deposition of Christopher

Thompson, the plaintiff’s expert. See EG Billing Records (DE# 138-4 at 19). Mr.

Vazquez also billed for preparing for the deposition of Christopher Thompson (3.15

hours), travel time associated with Mr. Thompson’s deposition (1.00 hour) and

attendance at Mr. Thompson’s deposition (2.00 hours). See LV Billing Records (DE#

138-1 at 59-60). No explanation has been provided for having two attorneys attend the

deposition of this witness.

Mr. Gomez also billed for 1.30 hours for research in preparation for the

deposition of Bradley LaBonde and 2.80 hours for preparing for and attending Mr.

LaBonde’s deposition. See EG Billing Records (DE# 138-4 at 20). Mr. Gomez’ co-

counsel also billed for work related to Mr. LaBonde’s deposition. As noted by the

defendant’s expert, Mr. Accetta spent 22 hours for preparing for and attending the

deposition of Mr. LaBonde, a deposition which lasted only 1.55 hours. Decl. of Def’s

Expert at 15(h). Mr. Vazquez billed 3.00 hours for attending the deposition of Mr.

LaBonde (2.00 hours) and travel time (1.00 hour). See LV Billing Records (DE# 138-1 at

64). Aside from Mr. Accetta’s excessive billing, the Court finds no explanation in the

record for having three attorneys attend the deposition of this witness.

The Court finds many examples of block billing, excess time entries and

duplicative billing which warrant a 25 percent reduction to the billing records submitted

by Mr. Gomez’ law firm.

In sum, the Court will apply a 35 percent reduction to the time entries submitted

for Mr. Accetta’s law firm and a 25 percent reduction to the time entries submitted by the

law firms of Mr. Vazquez and Mr. Gomez to account for the billing issues identified in

this Order, including block billing, excessive and duplicative time entries, non-descript

time entries and non-compensable clerical work. The Court finds that the reductions

listed in the chart below are reasonable and appropriate to account for the billing issues

discussed in this Order.

Mr. Accetta’s Law Firm

Timekeeper Position Hours Percentage Hours Hourly Lodestar

Sought Reduction After Rate

Reduction Awarded

Anthony Attorney 374.85 35% 243.6525 $525.00 $127,917.56

Accetta

Yanely Paralegal 116.35 35% 75.6275 $150.00 $11,344.13

Rodriguez-

Accetta

Leslie M. Paralegal 187.07 35% 121.5955 $150.00 $18,239.33

Canales

Charles A. Law 12.63 35% 8.2095 $125.00 $1,026.19

Luke, Jr. Clerk

Brandon F. Paralegal 124.40 35% 80.86 $75.00 $6,064.50

Rodriguez

Total Amount for Mr. Accetta’s Law Firm: $164,591.71

Mr. Vazquez’ Law Firm

Timekeeper Position Hours Percentage Hours Hourly Lodestar

Sought Reduction After Rate

Reduction Awarded

Lazaro Attorney 606.10 25% 454.575 $450.00 $204,558.75

Vazquez

Total Amount for Mr. Vazquez’ Law Firm: $204,558.75

Mr. Gomez’ Law Firm

Timekeeper Position Hours Percentage Hours Hourly Lodestar

Sought Reduction After Rate

Reduction Awarded

Eduardo Attorney 258.05 25% 193.5375 $450.00 $87,091.88

Gomez

Barbie Paralegal 16.50 25% 12.375 $95.00 $1,175.63

Delgado

Rosa Paralegal 15.70 25% 11.775 $125.00 $1,471.88

Fernandez

Total Amount for Mr. Gomez’ Law Firm: $89,739.39

Total Amount for All Law Firms: $458,889.85

c. Multiplier

“In contingency fee cases that apply Florida law, once the lodestar is established,

the [C]ourt must consider whether a multiplier is appropriate.” Defronzo v. Liberty Mut.

Ins. Co., No. 6:19-CV-244-ORL-78-LRH, 2020 WL 5881702, at *13 (M.D. Fla. July 28,

2020), report and recommendation adopted, 2020 WL 5881595 (M.D. Fla. Aug. 14,

2020) (citing Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990);

Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985)). “The decision

to award a multiplier is discretionary.” Crossman v. USAA Cas. Ins. Co., No. 6:18-CV-

1301-ORL-31-GJK, 2020 WL 1172048, at *4 (M.D. Fla. Feb. 7, 2020), report and

recommendation adopted, 2020 WL 1170757 (M.D. Fla. Mar. 11, 2020).

In determining whether to apply a multiplier, the Court should consider the

following factors:

(1) whether the relevant market requires a contingency fee multiplier to

obtain competent counsel; (2) whether the attorney was able to mitigate

the risk of nonpayment in any way; and (3) whether any of the factors set

forth in Rowe9 are applicable, especially, the amount involved, the results

obtained, and the type of fee arrangement between the attorney and his

client.

9 The Rowe factors are the following:

(1) the time and labor required, the novelty and difficulty of the question

involved, and the skill requisite to perform the legal service properly; (2)

the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer; (3) the fee

customarily charged in the locality for similar legal services; (4) the

amount involved and the results obtained; (5) the time limitations imposed

by the client or by the circumstances; (6) the nature and length of the

professional relationship with the client; (7) the experience, reputation, and

ability of the lawyer or lawyers performing the services; and (8) whether

the fee is fixed or contingent.

Rowe, 472 So. 2d at 1150.

Quanstrom, 555 So. 2d at 834 (footnote added).

The plaintiffs seek the application of a risk multiplier:

The instant matter is suitable for the imposition of a 2.0 contingency

multiplier, as the clients could only hire an attorney on a contingency

basis. The clients’ financial situation meant they could not afford

representation absent a contingency fee with the possibility of the

application of a contingency fee multiplier. Additionally, the jury’s verdict

amount was over five (5) times the amount of Geo[V]era’s proposal for

settlement. And in light of [its] fraud defenses, Geo[V]era believed the

Plaintiffs were not entitled to any monies whatsoever for either claim.

Based on the foregoing, and the fact that success was minimal from the

outset, and that the [plaintiffs’ counsel] would not have taken on the

representation but-for the expectation of a multiplier, the Plaintiffs[ ]

request that a fee multiplier of 2.0 be applied to the lodestar.

Motion at 10.

The plaintiffs’ expert notes that the case was “heavily litigated,” that [v]arious

dispositive motions were filed and that the defendant served offers of judgment which

are “indicative of Defendant’s position that it had a high likelihood of prevailing against

the Plaintiffs in these cases.” Decl. of Pls.’ Expert at ¶ 44. The plaintiffs’ expert further

notes, that because of those offers of judgment, there was significant financial risk to

the plaintiffs if they failed to prevail on their claims. Id. The plaintiffs’ expert opines that

“very few competent and qualified attorneys in South Florida would have taken these

matters on a contingency basis but for the availability of a fee multiplier.” Id. at ¶ 46. The

plaintiffs’ expert discussed the instant case with two first party insurance attorneys who

stated that they would not have taken the instant case without the expectation of a

multiplier, particularly in light of the fraud/misrepresentation affirmative defense. Id. at

¶ 48.

The defendant opposes the application of a multiplier. Response at 15-20. The

defendant argues that the first factor in Quanstrom is not met because the “[p]laintiffs

have not provided any evidence to suggest that they had interviewed or otherwise

discussed these matters with other legal counsel and were denied legal representation.”

Id. at 17; id. at 19 (noting that “Plaintiffs have not provided any testimony that they had

difficulty in obtaining legal counsel, or that they had been rejected by any other

attorneys for these matters”). The defendant further argues that the second factor is not

satisfied merely because counsel represented the plaintiffs on a contingency basis and

“federal courts in Florida have found that the existence of the attorney fee statute for

first party cases is a sufficient mitigation of nonpayment.” Id. at 17-18. Lastly, the

defendant argues that the “Plaintiffs cannot meet the third factor because Plaintiffs’

emphasis on the purported complexity of their case is not supported by the record

before the Court” and the plaintiffs have offered no evidence to support their “claim that

they could not afford representation absent a contingency fee with the possibility of the

application of a contingency fee multiplier.” Id. at 18.

The plaintiffs assert in their Reply that the defendant incorrectly applies a

subjective standard to the first factor. Reply at 8 (stating that “the

enhancement/multiplier issue ha[s] to be viewed from the objective basis of its need in

the marketplace, rather than from the subjective basis of whether the individual fees

claimant had encountered actual difficulty in obtaining counsel”). The plaintiffs further

argue that in determining whether to apply a multiplier, the Court should consider the

purpose of the multiplier which “is to equal the playing field.” Id.

The instant case does not warrant the application of a multiplier under the

Quanstrom factors. The first factor – whether the relevant market requires a

contingency fee multiplier to obtain competent counsel – has not been met. There is no

record evidence that the plaintiffs were turned away by other law firms or had any

difficulty obtaining legal representation in this case. See David L. Goldstein DMD PA v.

Phoenix Ins. Co., No. 6:17-CV-1963-ORL-31-TBS, 2018 WL 5084750, at *6 (M.D. Fla.

Aug. 21, 2018) (declining to apply multiplier, in part, because there was “no showing

that other firms refused to take the case under a standard contingency arrangement so

as to satisfy the Court that the possibility of recovering a contingency fee multiplier was

necessary for [p]laintiff to obtain competent counsel”).

Although the plaintiffs three attorneys assert that they would not have accepted

this case without the possibility of a multiplier, the Court notes that none of the state

court fee cases submitted in support of the instant Motion awarded a multiplier to these

attorneys. See State Court Fee Orders (DE# 138-1 at 31-41;138-2 at 21-55; 138-4 at

17, 5/13/20). In fact, Mr. Vazquez represents the plaintiffs in four separate claims

against GeoVera, including the two claims which comprise the instant case. See Aff. of

Lazaro Vazquez at ¶ 6.

Even applying an objective standard, the Court notes that property damage

cases such as the instant case are not uncommon in South Florida, particularly claims

involving hurricane damage, and attorneys who practice in this area are not in short

supply. See St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., No. 18-21365-CIV, 2019

WL 7905013, at *7 (S.D. Fla. Oct. 10, 2019) (“as the number of cases filed in this Court

illustrates, a plethora of experienced practitioners routinely pursue insurance cases

following hurricanes or other significant causes of loss”). Mr. Vazquez acknowledges in

his affidavit that Geo[V]era “defends many cases in South Florida through jury trial and

appeal.” See Aff. of Lazaro Vazquez at ¶ 9.

The Florida Supreme Court has noted that “[a] primary rationale for the

contingency risk multiplier is to provide access to competent counsel for those who

could not otherwise afford it.” Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 411 (Fla.

1999). Here, the record does not reflect that a multiplier is necessary to entice

competent attorneys to litigate cases such as this one. “This alone is fatal to . . . [the]

request for a fee multiplier because ‘[i]f there is no evidence that the relevant market

required a contingency fee multiplier to obtain competent counsel, then a multiplier

should not be awarded.’” St. Louis Condo. Ass’n, Inc., 2019 WL 7905013, at *7 (quoting

USAA Cas. Ins. Co. v. Prime Care Chiropractic Enters, P.A., 93 So. 3d 345, 347 (Fla.

2d DCA 2012)).

The second factor asks whether the attorneys were able to mitigate the risk of

nonpayment in any way. Mr. Accetta, Mr. Vazquez and Mr. Gomez represented the

plaintiffs on a contingency fee basis. However, “the existence of a contingent fee

agreement alone does not mandate the application of a multiplier.” St. Louis Condo.

Ass’n, Inc., 2019 WL 7905013, at *8. Here, the plaintiffs offer only conclusory

statements concerning their inability to pay their attorneys. See, e.g., Aff. of Lazaro

Vazquez at ¶ 20 (attesting that “Mr. Rodriguez and Mrs. Rodriguez are not financially

able to hire an attorney to handle these cases on an hourly fee basis.”); Decl. of Pls.’

Expert at ¶ 11 (attesting that “[b]ased on [his] discussion with Mr. Vazquez, Mr. and Mrs.

Rodriguez are not financially able to hire an attorney to handle these cases on an hourly

fee basis”). Additionally, the fee shifting provision itself provides mitigation against the

risk of non-payment. See Hegel v. First Liberty Ins. Corp., No. 8:12-CV-1161-T-17MAP,

2014 WL 5473185, at *5 (M.D. Fla. Oct. 23, 2014) (stating “the Court is unconvinced

that counsel’s acceptance of this case on a contingency basis alone justifies

enhancement. Fla. Stat. § 627.428 guarantees attorneys[’] fees if [p]laintiffs prevailed,

and [p]laintiffs did prevail”).

Lastly, the third factor – whether any of the Rowe factors are applicable,

especially, the amount involved, the results obtained, and the type of fee arrangement

between the attorney and his client – has not been met. The plaintiffs were successful

at trial and, as a result of that success, the plaintiffs were awarded a money judgment

and are receiving a substantial attorney’s fee award. The Court remains unconvinced

that the instant case involved complex litigation. At bottom, the instant case was an

insurance coverage case which included an affirmative defense for

fraud/misrepresentation. To the extent the plaintiffs are relying on the defendant’s

alleged vigorous defense of the case, the lodestar adequately accounts for it. See Pa. v.

Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 730 (1987) (stating that “[t]he

matter may have been difficult, wearing, and time consuming, but that kind of effort has

been recognized in the lodestar award.”).

Accordingly, no multiplier will be awarded in this case.

B. Costs

In order to address the plaintiffs’ costs request, a review of some of the

procedural history of this case is helpful.

On March 24, 2020, the plaintiffs filed a motion to tax costs and a bill of costs

totaling $59,788.87. See Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Motion

to Tax Costs and Supporting Memorandum of Law, Sworn Bill of Costs and Supporting

Documentation (DE# 152 in Case No. 18-cv-23585-JJO; DE# 129 in Case 19-cv-21173-

JJO, 3/24/20) (hereinafter “Motion to Tax Costs”); Bill of Costs (DE# 152-1 in Case No.

18-cv-23585-JJO; DE# 129-1 in Case 19-cv-21173-JJO at 2-3 in Case No. 19-cv-

21173-JJO, 3/24/20). The Motion to Tax Costs was accompanied by approximately 215

pages of invoices, checks, credit card authorization forms, pay-by-phone parking

screenshots, order summaries, charts and shipment receipts. The Motion to Tax Costs

was separate from the instant Motion for Attorney’s Fees which also includes the same

bill of costs and the same approximately 215 pages of supporting documents.

The defendant filed a response in opposition and the plaintiffs filed a reply in

support of the Motion to Tax Costs. See GeoVera’s Response to Plaintiffs Jose

Rodriguez and Marcee K. Rodriguez’s Motion to Tax Costs (DE# 153 in Case No. 18-

cv-23585-JJO; DE# 130 in Case 19-cv-21173-JJO, 4/7/20) (hereinafter “Response to

Motion to Tax Costs”); Plaintiffs’ Reply to Geo[V]era’s Response to Plaintiffs Jose

Rodriguez and Marcee K. Rodriguez’s Motion to Tax Costs (DE# 158 in Case No. 19-

cv-21173; DE# 135 in Case No. 19-cv-21173-JJO, 4/14/20) (hereinafter “Reply in

Support of Motion to Tax Costs”).

After the Motion to Tax Costs was fully briefed, the Court issued a 23-page Order

awarding the plaintiffs $9,175.97 in taxable costs under 28 U.S.C. § 1920. See Order

(DE# 145 in Case No. 19-cv-21173-JJO; DE# 168 in Case No. 18-cv-23585-JJO,

5/26/20).

Given that the plaintiffs’ Motion to Tax Costs was separately filed, was fully

briefed and the Court issued an Order awarding costs under section 1920, the Court is

not convinced that the plaintiffs’ costs remain pending (or that they are part of the

instant Motion for Attorney’s Fees). Nonetheless for the sake of completeness, the

Court will address the plaintiffs’ assertion in their Reply that they are now seeking costs

under Fla. Stat. § 57.041. See Reply at 9-10.

The Court notes that nowhere in the body of the Motion for Attorney’s Fees

currently pending before the Court — Plaintiffs Jose Rodriguez’s and Marcee K.

Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for

Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.

18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20) — is there any

specific discussion of a request for costs under section 57.041. There are scattered

references to the plaintiffs’ entitlement to costs throughout the Motion for Attorney’s

Fees. See Motion for Attorney’s Fees at 1-2, 4, 6, 9, 11. But the only reference to

section 57.041 is in an introductory sentence on the first page which also includes a

reference to section 1920. Motion for Attorney’s Fees at 1.

In their Reply, the plaintiffs state that they are seeking $50,612.90 in costs under

section 57.041 because the Court has already awarded the plaintiffs $9,175.97 in

taxable costs pursuant to 28 U.S.C. § 1920. See Reply at 9; Order (DE# 168 in Case

No. 18-cv-23585-JJO; DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20). In other words,

the plaintiffs took the $59,788.87 they originally sought for costs and subtracted the

$9,175.97 awarded by the Court pursuant to 28 U.S.C. § 1920 to come up with the new

costs amount of $50,612.90.

In reaching this new costs calculation, the plaintiffs ignore the fact that they

unequivocally withdrew $6,739.56 from their original costs. See Reply in Support of

Motion to Tax Costs at 8-9 (withdrawing costs for mediation, PACER, travel, research,

courier/shipping charges and parking). Having withdrawn these charges, the plaintiffs

cannot simply tack them back on again for the Court’s reconsideration in a reply to the

fees motion.

Prior to issuing its Order awarding costs to the plaintiffs, the Court painstakingly

reviewed the plaintiffs’ Motion for Costs (including the approximately 215 pages in

supporting documents), the Response to Motion to Tax Costs and the Reply in Support

of Motion to Tax Costs. After careful consideration, the Court determined that a

significant portion of the costs sought by the plaintiffs were not taxable under 28 U.S.C.

§ 1920 in a detailed 23-page Order. See Order (DE# 168 in Case No. 18-cv-23585-JJO;

DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20). The plaintiffs cannot simply undo all

of the Court’s labor by asserting (after the issuance of the Court’s Order awarding costs

and in the reply brief to the fees motion)10 that they are actually seeking costs pursuant

to section 57.041 of the Florida Statutes. Reply at 9.

Nowhere in the body of the Motion for Attorney’s Fees that the Court is presently

ruling on — Plaintiffs Jose Rodriguez’s and Marcee K. Rodriguez’s Verified Motion to

Determine Amount of Attorneys’ Fees and Costs, for Lodestar Multiplier, and for

Entitlement to Prejudgment Interest (DE# 161 in Case No. 18-cv-23585-JJO; DE# 138

in Case No. 19-cv-21173-JJO, 5/13/20) — is there any specific discussion of a request

for costs pursuant to section 57.041. A party cannot raise a new argument for the first

10 The only reference to section 57.041 in the instant Motion for Attorney’s Fees is the

following statement: “Plaintiffs, JOSE RODRIGUEZ and MARCEE K. RODRIGUEZ, by

and through undersigned counsel and pursuant to 28 U.S.C. § 1920, Fed. R. Civ. P.

54(d), Local Rule 7.3, the Court’s Final Judgment, and sections 626.9373, 626.911,

627.428, 57.041, Florida Statutes, and other applicable Florida law, respectfully request

this Court for [sic] an award of attorneys’ fees in the amount of $1,337,264.42, and an

award of costs in the amount of $59,788.87.” Motion at 1 (emphasis added). There is no

other reference or discussion of section 57.041 in the instant Motion.

time in a reply brief. See Herring v. Secretary, Dep’t of Corrs., 397 F.3d 1338, 1342

(11th Cir. 2005) (“As we repeatedly have admonished, arguments raised for the first

time in a reply brief are not properly before a reviewing court.”) (internal quotations

omitted); Willis v. DHL Global Customer Sols. (USA), Inc., No. 10-62464-CIV, 2011 WL

4737909, at *3 (S.D. Fla. Oct. 07, 2011) (noting that “[j]udges in this district . . . have

repeatedly rejected attempts by parties to raise new arguments in reply

memoranda”).The plaintiffs are not entitled to a “do over” costs determination under

section 57.041, simply because they are dissatisfied with the costs awarded under

section 1920.

The plaintiffs correctly note that “[t]he category of costs that are to be awarded

per 57.041, Florida Statutes, encompasses a broader category of costs that are

compensable . . . . .” Reply at 9. The problem for the plaintiffs, however, is that the basis

for their Motion to Tax Costs was section 1920.

The Motion to Tax Costs contains one lone reference to section 57.041:

Plaintiffs JOSE RODRIGUEZ and MARCEE K. RODRIGUEZ (hereinafter

“Plaintiffs”), by and through their undersigned counsel, and pursuant to

this Court’s Final Judgment entered on February 26, 2020, Rule 54(d),

Federal Rules of Civil Procedure, Local Rule 7.3 of the Southern District of

Florida, and in accordance with Fla. Stat. §§ 626.9373, 626.911, 627.428,

57.041 and other applicable Florida law, hereby moves this Court for an

Order taxing costs against Defendant, GEOVERA SPECIALTY

INSURANCE COMPANY, in the amount set forth below.

Motion to Tax Costs at 1 (emphasis added). Notwithstanding this introductory

statement, the Motion to Tax Costs contains no legal analysis of section 57.041.

By contrast, the Motion to Tax Costs quotes the text of 28 U.S.C. § 1920 almost

entirely. Motion to Tax Costs at 10. The plaintiffs specifically cite to section 1920 as the

basis for their requests for costs incurred in relation to fees of the clerk, summonses

and subpoenas, transcripts, photocopies, exemplifications, materials/supplies and

PACER fees. Id. at 10-12. The plaintiffs also include cases which apply section 1920.

Id. at 11.

The plaintiffs’ reliance on section 1920 as the sole basis for their costs motion is

even more evident in their Reply in Support of Motion to Tax Costs. In that document,

the plaintiffs make eight references to section 1920 and cite approximately 16 cases

discussing costs under section 1920. Reply in Support of Motion to Tax Costs at 3-8.

The Reply in Support of Motion to Tax Costs also includes the following statement:

“Defendant has not specified exactly what costs it is requesting be ‘denied’ therefore,

the Plaintiffs request that any costs not specifically addressed by this Reply be

awarded under 28 U.S.C. [§]1920 against the Defendant in these actions.” Id. at 9

(emphasis added). There is no discussion of section 57.041 in the Reply in Support of

Motion to Tax Costs.

Given the plaintiffs’ heavy reliance on section 1920 and the lone reference to

section 57.041 in an introductory paragraph, the lack of any legal analysis concerning

section 57.041 and the extensive discussion by the plaintiffs of costs under section

1920, it was reasonable for the Court to conclude that the plaintiffs were only seeking

costs under section 1920. The Court analyzed the plaintiffs’ Motion to Tax Costs under

section 1920 and awarded the plaintiffs $9,175.97 in taxable costs. See Order (DE# 168

in Case No. 18-cv-23585-JJO; DE# 145 in Case No. 19-cv-21173-JJO, 5/26/20).

The Court will award no additional costs to the plaintiffs.

C. Prejudgment Interest

The plaintiffs also seek prejudgment interest beginning on March 19, 2020, the

date the defendant stipulated to the plaintiffs’ entitlement to fees and costs. Motion at 2.

The defendant does not address the plaintiffs’ request for prejudgment interest other

than stating it did not agree to the amount of prejudgment interest. See Response at 2

(stating that “[e]ven though Plaintiffs’ Motion is titled ‘Unopposed,’ GeoVera had not

agreed to individual line items for fees, the amount of fees and costs, hourly rate,

whether a multiplier is applicable, the amount of pre-judgment interest, and other

items included with Plaintiffs’ request for fees.”) (emphasis added).

“Pre-judgment interest is recognized as merely another element of pecuniary

damages such that when a verdict liquidates damages on a plaintiff's out-of-pocket

pecuniary losses, plaintiff is entitled, as a matter of law, to pre-judgment interest at the

statutory rate from the date of that loss.” Fid. & Guar. Ins. Underwriters, Inc. v.

Federated Dep't Stores, Inc., 845 So. 2d 896, 903 (Fla. 3d DCA 2003). Because the

defendant did not oppose the plaintiff’s entitlement to pre-judgment interest, but rather

contested the amount, the plaintiffs’ request for pre-judgment interest will be

GRANTED.

CONCLUSION

For the reasons stated herein, the Court will award the plaintiffs attorney’s fees in

the amount of $458,889.85 ($164,591.71 for the work performed by Mr. Accetta’s law

firm plus $204,558.75 for the work performed by Mr. Vazquez’ law firm plus $89,739.39

for the work performed by Mr. Gomez’ law firm). Accordingly, it is

ORDERED AND ADJUDGED that the Plaintiffs Jose Rodriguez’s and Marcee K.

Rodriguez’s Verified Motion to Determine Amount of Attorneys’ Fees and Costs, for

Lodestar Multiplier, and for Entitlement to Prejudgment Interest (DE# 161 in Case No.

18-cv-23585-JJO; DE# 138 in Case No. 19-cv-21173-JJO, 5/13/20) is GRANTED in

part and DENIED in part as follows:

1. The parties shall confer and attempt to agree on the amount of pre-

judgment interest. Within one (1) week from the date of this Order, the parties shall file

a joint notice of calculation of pre-judgment interest. If the defendant does not agree to

the plaintiffs’ calculation of pre-judgment interest, the defendant shall state with

specificity and with supporting authority its objection to the manner in which the pre-

judgment interests was calculated in the joint notice.

2. Upon the filing of the joint notice of calculation of pre-judgment interest,

the Court will enter a separate fees judgment in the amount of $458,889.85 plus pre-

judgment interest.

DONE AND ORDERED in Chambers at/Viami, Florida, this 19th day of

November, 2020. CL /

JOHN‘J/ O'SULELIVAN

CHIEF UNITED STATES MAGISTRATE JUDGE