The opinion
USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TF LCOORUIDRTA
Case No. 20-82399-CIV-SINGHAL/MATTHEWMAN
WAGNER PONTES LIMA, individually,
and derivatively on behalf of D4U USA LAW
GROUP, LLC,
Plaintiffs/Counter-Defendants,
v.
Y. KRIS LEE,
Defendant/Counter-Claimant.
________________________________________/
Y. KRIS LEE,
Third-Party Plaintiff,
v.
D4U USA LAW FIRM, LLC and D4U
USA CONSULTING LLC,
Third-Party Defendants.
________________________________________/
ORDER AWARDING ATTORNEY’S FEES
TO DEFENDANT/COUNTERCLAIMANT
AND AGAINST PLAINTIFFS/COUNTER-DEFENDANTS
THIS CAUSE is before the Court upon Defendant/Counterclaimant’s (“Defendant”)
Memorandum of Attorney’s Fees and Costs. [DE 83]. Plaintiff/Third-Party Defendant (“D4U
Parties”) filed a response [DE 89], and Defendant replied [DE 91]. The Court has carefully
reviewed the filings and the Court’s prior Orders, as well the entire docket in this case.
I. BACKGROUND
On November 9, 2021, the Court entered an Order [DE 80], which, in relevant part, stated
that “Defendant is entitled to reasonable attorney’s fees and costs to be paid by the D4U Parties
that were incurred by Defendant in bringing the Motion to Compel, reviewing the response to the
Motion to Compel, replying to the response to the Motion to Compel, and in attending the
November 9, 2021 hearing.” The award of reasonable attorney’s fees and costs was ordered
pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), which provides that, if a motion to compel
is granted, “the court must . . . [order the opposing party] to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.” The Court set a briefing schedule for
Defendant to file “an appropriate Memorandum of Attorney’s Fees and Costs addressing the
reasonable attorney time incurred, the reasonable hourly rate, and any specific costs or expenses
incurred,” as well for a response and reply.
Defendant timely filed the Affidavit of Javier A. Lopez, Esq [DE 83-1], in which attorney
Lopez represents that Defendant is seeking $9,700.00, comprising a total of 22.5 hours of work.
According to attorney Lopez, (1) he is a managing partner, his regular hourly rate charged for
commercial litigation matters is $675.00, and he billed 0.3 hours for attending the November 9,
2021 hearing; (2) John I. Criste is an associate, his regular hourly rate charged for commercial
litigation matters is $450.00, and he billed 2.5 hours for reviewing the pleadings; and (3) Rasheed
K. Nader is an associate, his regular hourly rate charged for commercial litigation matters is
$425.00, he drafted the motion to compel, reviewed the response, drafted the reply, and argued at
the hearing; and he billed 19.7 hours for this work. Defendant attached a detailed statement of the
above attorneys’ timecards to reflect monthly statements of accounts of all fees incurred by
Defendant during the months of September 2021 through November 2021 in relation to the motion
to compel. [DE 83-2].
In response, the D4U Parties argue that Defendant’s requested amount of fees and costs is
not reasonable because (1) using Defendant’s own exhibit totaling the amount of hours, the total
should be $9,572.50, and not $9,700; (2) attorney Nader prepared for the hearing and was the only
one who argued at the hearing, therefore, Defendant should be entitled for only the reasonable fees
billed by attorney Nader; and (3) the hourly rate billed is unreasonable because the motion to
compel did not involve a novel or complex issue and Defendant’s filings were brief and mostly
contained background.
In reply, Defendant states that (1) it acknowledged a 0.3-hour difference between the hours
claimed in its memorandum and the hours in the spreadsheet attached to the memorandum in
correspondence with counsel for the D4U Parties; (2) it is reasonable for the D4U Parties to pay for
attorney Criste and attorney Lopez to attend the hearing because they are the two other attorneys
of record in this case and must remain up to date on the discovery disputes; and (3) the rates billed
by Defendant’s attorneys are reasonable.
II. DISCUSSION AND ANALYSIS
While Defendant has a right to attorney's fees incurred, the Court has a corresponding duty
to ensure that such an award is reasonable. A reasonable attorneys’ fee award is “properly
calculated by multiplying the number of hours reasonably expended on the litigation times a
reasonable hourly rate.” Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1994)). This “lodestar” may then be adjusted for the
results obtained by the attorney. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10 F.3d
776, 781 (11th Cir. 1994)). “In determining what is a ‘reasonable’ hourly rate and what number of
compensable hours is ‘reasonable,’ the court is to consider the 12 factors enumerated in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Bivins v. Wrap It Up, Inc., 548 F.3d
1348, 1350 (11th Cir. 2008). These factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of
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or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the “undesirability” of the
case; (11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.
Id. at 1350 n. 2 (citation omitted).
The reasonable hourly rate is defined as the “prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience, and
reputation.” Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1999)). The fee applicant bears the burden of establishing the claimed market
rate. See Barnes, 168 F.3d at 427. The Court may use its own experience in assessing the
reasonableness of attorneys’ fees. Norman, 836 F.2d at 1299. “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, 548
F.3d at 1350 (citing Loranger, 10 F.3d at 783); Freestream Aircraft USA Ltd. v. Chowdry, No. 16-
CV-81232, 2017 WL 4785458, at *1 (S.D. Fla. Oct. 20, 2017).
As an initial matter, the Court will only consider the hours reflected in the exhibits to
Defendant’s memorandum. [DE 83-2]. In reply, Defendant admits that there a 0.3-hour difference
between the hours claimed in Defendant’s memorandum and the hours in the spreadsheet attached
to the memorandum. However, Defendant argues that this error should be excused because
Defendant’s counsel subsequently discussed it with the D4U Parties’ counsel and that Defendant’s
counsel “accidentally redacted one entry for 0.3 hours on October 15, 2021, for “review[ing] [the]
response to [the] motion to compel.” However, the Court finds that any entitlement to 0.3 hours
for time reviewing the response to the motion to compel has been waived. Defendant did not seek
to amend its memorandum or its exhibit, and the Court will not consider Defendant’s explanation
for the first time in reply. Accordingly, the Court will review the hours reflected in the exhibits to
Defendant’s memorandum for reasonableness. [DE 83-2].
The Court finds that the number of hours claimed is unreasonably high. Defendant seeks
attorney’s fees for a total of 22.2 hours of work in connection with the motion to compel. The
breakdown by attorney is as follows: 19.4 hours for attorney Nader’s time, 0.3 hours for attorney
Lopez’s time, and 2.5 for attorney Criste’s time. While a perfectly appropriate filing, the motion to
compel was, nonetheless, only six pages in length, consisted of mostly background information,
and did not contain any complex arguments. [DE 52 & 53]. Freestream Aircraft USA Ltd. v.
Chowdry, 16-CV-81232, 2017 WL 4785458, at *3 (S.D. Fla. Oct. 20, 2017) (finding that 22 hours
to draft and finalize a 12-page motion for sanctions was excessive); see also Johnson v. FedEx
Ground Package Sys. Inc., 519CV00196JSMPRL, 2020 WL 10334683, at *2 (M.D. Fla. June 23,
2020) (finding 6.40 hours reasonable for preparing a motion to compel and preparing the
declaration); Brancato v. Cotrone, No. 5:18-cv-368, 2019 WL 6051432, at *2 (M.D. Fla. Nov. 15,
2019) (finding 8.1 hours reasonable for a motion to compel, response to a cross motion, and the
instant motion). The Court finds that 22.2 hours is excessive under the circumstances.
In addition, the Court finds that it was unreasonable to have three attorneys attend the
hearing on the motion to compel. While “[t]here is nothing inherently unreasonable about a client
relying on more than one lawyer or having an attorney review and revise his or her colleague's
work[,] . . . a fee applicant bears the burden of establishing that billed time reflects distinct
contributions by each lawyer.” People for Ethical Treatment of Animals, Inc. v. Dade City's Wild
Things, Inc., No. 8:16-cv-2899, 2018 WL 1605842, at *3 (M.D. Fla. Apr. 3, 2018). Defendant has
not met her burden to establish that having three attorneys present at a simple motion to compel
hearing was reasonable. It is undisputed that attorney Nader was the only one who argued during
the hearing. Defendant’s explanation in requesting the fees of two other attorneys is that the
presence of attorney Criste and attorney Lopez was reasonable because they are both attorneys of
record in this case and must remain up to date on discovery disputes. A review of the record shows
that attorney Lopez also attended a previous discovery hearing with attorney Nader in this case [DE
35]; therefore, the Court finds that Defendant reasonably billed for the time of two lawyers to appear
at the hearing but there is no reasonable justification to have a third attorney present during the
hearing, and a third attorney’s presence was duplicative. See Nation Motor Club, Inc. v. Stonebridge
Cas. Ins. Co., No. 10-81157-CIV, 2013 WF 6729648, *2 (S.D. Fla. Aug. 2, 2013) (“[E]ach
attorney’s contributions must be distinct, and not redundant, in order to merit compensation.”).
In sum, the number of hours claimed is unreasonably high and a 50% reduction for the
attorneys’ time is appropriate. Therefore, the Court finds that 9.7 for attorney Nader, 0.15 for
attorney Lopez, and 1.25 for attorney Criste is reasonable under the circumstances.
Next, the Court turns to whether the requested hourly rates are reasonable for attorney
Nader, attorney Lopez, and attorney Criste. In support of the claimed reasonable hourly rates, the
declaration of attorney Lopez avers that his regular hourly rate for commercial litigation matters is
$675.00. [DE 83-1 ¶ 8]. Attorney Lopez avers that this is a reasonable rate because he is a managing
partner of the firm, he graduated from George Washington University School of Law, has been
practicing law in Miami since 2005, and has litigated hundreds of cases in state and federal court.
Id. Attorney Lopez then avers that the regular hourly rate charged by attorney Criste for commercial
litigation matters is $450.00. Id. ¶ 9. Attorney Criste is an associate who received his undergraduate
degree from Stanford University and his law degree from the University of Miami School of Law,
and he has been practicing law in Miami since 2015. Id. Finally, attorney Lopez avers that Attorney
Nader’s regular hourly rate for commercial litigation matters is $425. Id. ¶ 10. Attorney Nader is
an associate, graduated from Florida International University College of Law, has been practicing
law since 2017, and served as a law clerk at the Florida Supreme Court and United States Court of
Appeals for the Eleventh Circuit. Id.
Based on the Court's own experience and knowledge of prevailing market rates for similar
services in the South Florida legal community as well as on the Court’s review of the qualifications,
the Court finds that an hourly rate of hourly rate of $400.00 for attorney Lopez and an hourly rate
of $300 for both Attorney Criste and Attorney Nader is reasonable. See, e.g., Nation Motor Club,
Inc., No. 10-81157-CIV, 2013 WF 6729648, *2 (finding $400.00 to be a reasonable hourly rate in
responding to a motion for protective order for a partner with twenty-five years' experience); see
also Freestream Aircraft USA Ltd. v. Chowdry, 16-CV-81232, 2017 WL 4785458, at *2–3 (S.D.
Fla. Oct. 20, 2017).
Finally, in order to calculate the appropriate fee award, the Court must multiply the reduced
reasonable rates of the attorneys by the number of reasonable hours spent in connection with the
motion to compel. The Court finds Defendant reasonably incurred 11.1 hours of attorney work,
and Defendant should be awarded a total $3,345.00 in fees calculated as follows: $2,910.00 for
attorney Nader, $375.00 for attorney Criste, and $60.00 for attorney Lopez.
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that the D4U Parties shall reimburse
Defendant for her attorney’s fees in the amount of $3,345.00. The D4U Parties are ordered to make
such payment to Defendant’s counsel’s trust account within twenty (20) days from the date of this
Order. Thereafter, the parties shall file a Notice in the record advising that payment has been made
or advising that payment has not been made within the time period ordered by the Court. In the
event of non-payment, Defendant may move for entry of a judgment against the D4U Parties and
for any other appropriate relief.
DONE and ORDERED in chambers at West Palm Beach, Palm Beach County, Florida,
this 15th day of December 2021.
WILLIAM MATTHEWMAN
United States Magistrate Judge