Southern-Owners Insurance Company v. Marquez

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-81431-CIV-MATTHEWMAN

SOUTHERN-OWNERS INSURANCE COMPANY,

Plaintiff,

v.

SERGIO MARQUEZ, et al.,

Defendants.

____________________________________________/

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ AMENDED VERIFIED MOTION FOR ENTITLEMENT

AND AWARD OF ATTORNEYS’ FEES AND COSTS [DE 86]

THIS CAUSE is before the Court upon Defendants Sergio and Jenna Marquez’s Amended

Verified Motion for Entitlement and Award of Attorneys’ Fees and Costs (“Motion”) [DE 86].

Plaintiff Southern-Owners Insurance Company (“Southern-Owners”) has filed a Response [DE

87], and Defendants Sergio and Jenna Marquez have filed a Reply [DE 88]. Thus, the matter is

now ripe for review.

I. BACKGROUND

On August 6, 2020, Christopher Murphy, a minor, by and through his parents and natural

guardians, James and Sarah Murphy, and James and Sarah Murphy in their individual capacity

(collectively, the Murphys), filed a “Complaint and Demand for Jury Trial” against VillageWalk

of Wellington Homeowners Association, Inc. (“Association”) and Sergio and Jenna Marquez (“the

Marquezes”). [DE 1-1]. The Complaint and Demand for Jury Trial—filed in the Fifteenth Judicial

Circuit in and for Palm Beach County and assigned Case Number 2020-CA-008311—is

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hereinafter referred to as the “Underlying Complaint.” Similarly, Case Number 2020-CA-008311

is hereinafter referred to as the “Underlying Lawsuit” in which the Underlying Complaint was

filed.

In the Underlying Complaint, the Murphys alleged three counts—negligence against the

Marquezes (Count I), negligence against the Association (Count II), and a “parent’s claim for

injuries to their child” (Count III), presumably against both the Marquezes and the Association.

[DE 1-1 at 2–4]. These claims were connected to the Marquezes’ purportedly negligent

entrustment of a golf cart to their fourteen-year-old daughter and her actions in allegedly “running

down” seven-year-old Christopher Murphy while he was on a pedestrian walkway maintained by

the Association. Id. Specifically, in Count I of the Underlying Complaint, the Murphys alleged

that the Marquezes “negligently permitted their daughter to operate the golf cart on the

[Association’s] pedestrian walkway, which constituted negligence . . . in the ownership and

maintenance of a portion of the [Association] premises which w[as] not reserved to [the

Marquezes’] exclusive use or occupancy.” Id. at 2 ¶ 7. In Count II, the Murphys alleged that “the

Association owned, operated, and was in possession and control of the common areas of

Villagewalk of Wellington, including the pedestrian walkway where the child was run down and

injured,” and that “[t]he Association negligently failed to reasonably maintain the premises” by,

inter alia, “[f]ailing to prohibit the use of golf carts on . . . pedestrian walkways.” Id. at 2 ¶¶ 10–

11. Lastly, in Count III, the Murphys alleged that, “[a]s a consequence of the injury to their child,

[they] have incurred expenses of hospitalization, medical and nursing care and treatment,” with

said expenses being “permanent or continuing.” Id. at 4 ¶ 14.

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Subsequently, on August 28, 2020, Southern-Owners filed a Complaint for Declaratory

Judgment (“Operative Complaint”) [DE 1] against the Murphys and the Marquezes in this Court.

Within the Operative Complaint, Southern-Owners stated it had issued a Commercial General

Liability policy to the Association—policy #032382-72691586-20 (“the Policy”)—and that the

Marquezes had, in turn, “submitted a claim to Southern-Owners for coverage [under the Policy

for] the damages alleged against them in the Underlying Lawsuit.” [DE 1 at 4 ¶¶ 17–18]. Southern-

Owners further stated that it was “providing a defense to the [Marquezes] under a Reservation of

Rights” in the Underlying Lawsuit but was “uncertain as to whether the damages alleged against”

the Marquezes were covered under the Policy issued to the Association. Id. at 4 ¶ 19. Accordingly,

Southern-Owners sought “declaratory relief in order to determine and enforce contractual/legal

rights under the . . . [P]olicy . . . and the applicable law.” Id. at 4 ¶ 21.

The Policy under which Southern-Owners requested declaratory relief contains the

following “Endorsement” language:

ADDITIONAL INSURED

HOMEOWNERS ASSOCIATION MEMBERS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

A. SECTION II – WHO IS AN INSURED is amended to include as an

additional insured each individual member of the insured Homeowners

Association, but only with respect to liability arising out of the ownership,

maintenance or repair of that portion of the premises which is not reserved

for that member’s exclusive use or occupancy.

[DE 1-2 at 8] (italicized emphasis added). Utilizing such language, Southern-Owners alleged that

the Marquezes’ “liability for the damages at issue in the Underlying Lawsuit d[id] not arise out of

the ownership, maintenance, or repair of any portion of the [Association’s] premises not reserved

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for [the Marquezes’] exclusive use or occupancy.” [DE 1 at 5 ¶ 25]. Instead, Southern-Owners

contended that the Marquezes’ “liability for the damages alleged in the Underlying Lawsuit ar[ose]

out of [the Marquezes’] ownership of the golf cart which was involved in the collision with

Christopher Murphy.” Id. at 5 ¶ 24. In other words, Southern-Owners maintained that there was

“no coverage for the [Marquezes] for the claims alleged in the Underlying Lawsuit,” requesting

that the Court enter an order stating the same. Id. at 5.

On August 28, 2020—the same day that Southern-Owners filed the Operative Complaint—

Southern-Owners also filed a “Motion to Intervene for Limited Purpose and Motion to Stay” in

the Underlying Lawsuit. [DE 61 at 3] (citing DE 15 of the Underlying Lawsuit). In the motion,

“Southern-Owners argued that it had an interest in the Underlying Lawsuit and sought a stay

pending this Court’s determination as to whether there [was] coverage for the claims in the

Underlying Lawsuit.” Id. (alteration added) (citing DE 22 of the Underlying Lawsuit). Ultimately,

the state court granted Southern-Owners’ motion as to the request to intervene but denied the

motion as to the request to stay. Id. (citing DE 22 of the Underlying Lawsuit).

Thus, while the Underlying Lawsuit continued to proceed as normal, the Marquezes filed

their “Answer and Affirmative Defenses to [Southern-Owners’ Operative] Complaint . . . and

Counterclaim” [DE 13] in the instant case.1 Within the Marquezes’ Counterclaim, the Marquezes,

too, sought declaratory relief relating to the Policy. [DE 13 at 11–14]. However, according to the

Marquezes, the aforementioned “Endorsement” to the Policy provided them with coverage “for

the alleged damages at issue in the Underlying Complaint,” as they were the “additional insureds”

1 The Murphys filed their own “Answer, Affirmative Defenses, Counterclaim and Demand for Jury Trial.” [DE 5].

However, the Murphys’ involvement is unimportant for purposes of the Marquezes’ request for attorneys’ fees and

costs that is now before the Court.

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contemplated by the Policy’s Endorsement language. [DE 13 at 12 ¶¶ 25–26]. The Marquezes

therefore requested “the entry of a declaration that the [Policy] issued by Southern-Owners to the

. . . Association affords coverage to the Marquezes for the alleged damages in the Underlying

Lawsuit.” Id. at 14 ¶ 37.

Shortly thereafter, during a Status Conference, the Court sua sponte directed the parties to

“submit jurisdictional briefing of five pages or less to discuss 1) the basis for jurisdiction and 2)

abstention based on the factors set forth in Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328

(11th Cir. 2005).” [DE 35]. The parties complied, filing the requisite briefing. In short, Southern-

Owners’ position was that “the Ameritas factors, as applied here, do not favor abstention,” while

the Marquezes’ position was that “this Court should exercise its discretionary authority pursuant

to Ameritas . . . and abstain from exercising jurisdiction over this instant matter.” [DE 37 at 6; DE

38 at 5].

With no jurisdictional ruling at that time, and, despite the Marquezes’ position that the

Court should abstain from exercising jurisdiction, the Marquezes sought leave to file a third-party

complaint against the Association [DE 41], which the Court subsequently granted. [DE 44]. In the

ensuing Third-Party Complaint [DE 45], the Marquezes again sought declaratory relief, but as to

a separate matter. Specifically, the Marquezes sought “declaratory relief to determine whether the

Association had a contractual obligation under the [Declaration of Covenants, Conditions and

Restrictions of the Association] to procure a policy of insurance, which insurers [sic] the

Marquezes for the . . . alleged damages against them in the Underlying Lawsuit.” [DE 45 at 5 ¶

22].

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After having later reviewed the parties’ jurisdictional briefing, the Court entered an Order

Dismissing Without Prejudice and Closing Case (“Dismissal Order”) [DE 61]. In the Dismissal

Order, the Court first found that it “has [diversity] jurisdiction over this action,” including ancillary

jurisdiction over the third-party complaint. [DE 61 at 5]. The Court next turned to whether it should

“exercise its discretion to provide declaratory relief in this case.” Id. at 6. In doing so, the Court

examined the nine factors set forth in Ameritas “that courts may use to evaluate whether to dismiss

a federal declaratory action in light of an ongoing parallel state action.” Id. After finding that the

instant case and the Underlying Lawsuit were “sufficiently similar such that they are parallel,”

and, after consideration of the relevant Ameritas factors, the Court exercised its discretion and

declined jurisdiction. Id. at 7–8. As stated by the Court:

The relevant Ameritas factors—particularly those factors relating to interests of

judicial economy and the state’s interest—support declining jurisdiction. Here, the

judgment in the federal declaratory action would not settle the controversy or serve

a useful purpose in clarifying the legal relations at issue. Moreover, the underlying

factual issues are important, and may bear on this Court's interpretation of the

documents, and the state court is in a better position to address the factual issues.

Finally, there is a close nexus between the underlying factual and legal issues and

state law, as the documents at issue are governed by Florida law.

Id. at 8. Thus, the Court dismissed the case without prejudice. Id. at 9.

Southern-Owners filed a Motion for Reconsideration [DE 63]. According to Southern-

Owners, the Court’s Dismissal Order failed to: (1) “explain how the action w[ould] not clarify

legal relations”; (2) “identify what underlying factual issues [we]re important”; and (3) “address

all relevant Ameritas factors.” [DE 63 at 3]. Moreover, Southern-Owners stated that the Court’s

Dismissal Order “misconstrue[d] several relevant factors that should have been given significant

weight.” Id. at 4. Consequently, Southern-Owners argued that the Court “should not abstain from

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exercising jurisdiction over this action,” requesting that the Court quash the Dismissal Order and

re-open the case. Id. at 6–7.

Despite its Motion for Reconsideration still pending before the Court, Southern-Owners

then appealed the Court’s Dismissal Order, DE 69, resulting in the United States Court of Appeals

for the Eleventh Circuit suspending the effectiveness of Southern-Owners’ Notice of Appeal until

“entry of an order by [this Court] disposing of” the Motion for Reconsideration. [DE 74-1].

Additionally, because Local Rule 7.3(a)(1) requires the filing of an attorneys’ fees/cost motion

notwithstanding the prospect or pendency of appellate proceedings, the Marquezes filed a Verified

Motion for Entitlement and Award of Attorneys’ Fees and Costs [DE 73] within 60 days of the

Dismissal Order.

Ultimately, the Court denied Southern-Owners’ Motion for Reconsideration, finding that

the Dismissal Order was “thorough, complete, and well supported.” [DE 79 at 4]. And, in the

interests of judicial economy, the Court denied the Marquezes’ Verified Motion for Entitlement

and Award of Attorneys’ Fees and Costs without prejudice that same day, allowing the Marquezes

to “refile the motion within 30 days of the issuance of the Eleventh Circuit’s mandate.” [DE 80].

Thereafter, due to the Court’s denial of the Motion for Reconsideration, Southern-Owners

supplemented its initial appeal with an Amended Notice of Appeal [DE 81]. However, the

Eleventh Circuit later dismissed Southern-Owners’ appeal for failure to prosecute. [DE 83 at 1].

Thus, following the Marquezes’ filing of a Motion for Clarification [DE 84] related to the proper

filing deadline for their amended motion for attorneys’ fees and costs in the absence of an “official”

mandate,2 the Court allowed the Marquezes until January 14, 2022 to file their amended motion

2 11th Cir. R. 41-4 provides that, when there is a non-published order dismissing an appeal, “including an order

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for attorneys’ fees and costs. [DE 85]. The Marquezes timely filed the instant Motion [DE 86], and

Southern-Owners and the Marquezes filed their Response [DE 87] and Reply [DE 88],

respectively.

II. DISCUSSION

In the Marquezes’ Motion, the Marquezes seek entitlement to $31,152.50 in attorneys’ fees

pursuant to section 627.428(1), Florida Statutes. [DE 86 at 17]. In support, the Marquezes have

attached time logs [DE 86-1], and the affidavits of Michael J. Pike, Esq., Daniel Lustig, Esq.,

Andrew J. Boloy, Esq., and Stuart Hartstone, Esq., concerning their experience and the

reasonableness of their requested fee amount. [DE 86-2]. The Marquezes also seek $119.94 in

costs. [DE 86 at 17]. To that end, the Marquezes have attached an Invoice [DE 86-3 at 1] and a

United States Postal Service Certified Mail Receipt [DE 86-3 at 2] in support.

In response, Southern-Owners: (1) argues that the Marquezes are not entitled to attorneys’

fees under section 627.428(1), Florida Statutes; (2) objects to “the hourly rates requested by the

Marquez’s [sic] counsel and support staff”; (3) contends that the Marquezes seek certain attorneys’

fees that “are unrelated to the defense of the Declaratory Judgment Action and/or Order of

dismissal”; (4) argues that the Marquezes seek certain attorneys’ fees for specific time entries that

are “excessive, duplicative, or clerical”; and (5) asserts that the Marquezes are not entitled to an

award of costs. [DE 87]. This Order will address each of Southern-Owners’ arguments in three

sections—one concerning attorneys’ fees entitlement, one concerning the reasonableness of the

requested attorneys’ fees amount, and one concerning costs.

dismissing an appeal for want of prosecution,” the clerk “shall issue a copy to the district court clerk or agency [of the

order] as the mandate.”

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A. Attorneys’ Fees Entitlement

1. The Parties’ Arguments

i) The Marquezes’ Motion [DE 86]

The Marquezes argue that they are entitled to attorneys’ fees under section 627.428(1),

Florida Statutes. [DE 86 at 4]. According to the Marquezes, because Southern-Owners has

conceded that they are members of the Association, the Marquezes are therefore “additional

insureds” pursuant to the Policy’s “Endorsement” language. Id. Moreover, because the Marquezes

are “additional insureds,” the Marquezes contend that, pursuant to Florida law, they are either

“named insureds under the Policy . . . or, they are omnibus insureds because they are covered by

the [Endorsement] in the Policy, but not personally named.” Id.

The Marquezes next argue that the purpose of section 627.428 “is to discourage the

contesting of valid claims against insurance companies and to reimburse successful insureds for

their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.”

Id. (quoting Ins. Co. of N. Am. v. Lexow, 602 So. 2d 528, 531 (Fla. 1992)). In this regard, the

Marquezes assert “it is irrelevant that [they] prevailed on a procedural ground rather than on the

merits,” as an insured merely needs to obtain judgment or its functional equivalent in his or her

favor for purposes of entitlement to attorneys’ fees under section 627.428. Id. at 4–6. Indeed, the

Marquezes note that “[t]he Eleventh Circuit has already found that the dismissal for a lack of

subject matter jurisdiction may warrant attorneys [sic] fees under section 627.428.” Id. at 5 (citing

Prime Ins. Syndicate, Inc. v. Soil Tech Distribs., Inc., 270 F. App’x 962, 963 (11th Cir. 2008)).

The Marquezes thus urge this Court to follow the same analysis as Endurance Assurance Corp. v.

Zoghbi, No. 18-23960-CIV, 2020 WL 8258331 (S.D. Fla. July 7, 2020), report and

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recommendation adopted, No. 18-23960-CIV, 2021 WL 229977 (S.D. Fla. Jan. 22, 2021)—a case

in which the court found attorneys’ fees entitlement under section 627.428(1) based on dismissal

after consideration of the factors enumerated in Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d

1328 (11th Cir. 2005). Id. at 5–6.

ii) Southern-Owners’ Response [DE 87]

In Southern-Owners’ Response, Southern-Owners begins by arguing that the Marquezes

are not entitled to attorneys’ fees under section 627.428(1), Florida Statutes. [DE 87 at 5].

Southern-Owners thereafter argues that the Marquezes are neither named insureds nor named

beneficiaries under the Policy. Id. at 6. Additionally, to the extent the Marquezes argue they qualify

as “additional insureds” under the Policy based on their status as members of the Association—

and, therefore, as omnibus insureds under Florida law—Southern-Owners argues that the

Marquezes “have not established that they qualify as ‘additional insureds’ under the [P]olicy.” Id.

According to Southern-Owners,

an individual member of the [A]ssociation does not qualify as an Additional Insured

simply because of their status as member of the Association.” Id. at 7. Rather, the

plain language provides that an individual member of the association only qualifies

as an additional insured with respect to liability arising out of the ownership,

maintenance, or repair of that portion of the premises which is not reserved for

that member’s exclusive use or occupancy.

Id. at 7. Thus, as argued by Southern-Owners, because the Marquezes’ liability “does not arise out

of their ownership, maintenance, or repair of a portion of the premises which is not reserved for

their exclusive use or occupancy,” the Marquezes “do not qualify as additional insureds for the

claims alleged in the Underlying Action.” Id. at 7–8. Further, because the Court declined to

exercise jurisdiction over this case, Southern-Owners argues that “the issue of whether the

[Marquezes] qualify for coverage [as additional insureds] remains unsolved,” and that, “[w]ithout

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a resolution of this issue the [Marquezes] cannot establish that they qualify as Additional Insureds

. . . [and cannot therefore] establish that they qualify as ‘omnibus insureds’ under the [P]olicy.” Id.

at 8.

iii) The Marquezes’ Reply [DE 88]

In the Marquezes’ Reply, the Marquezes argue that “the plain language of the Endorsement

shows that members of [the] insured [Association], i.e., the Marquezes, are covered by a provision

of the Policy . . . [and are thus] considered omnibus insureds under the Policy.”3 [DE 88 at 3].

With that being said, the Marquezes argue “the determination of coverage is not necessary to

determine . . . entitlement [to] attorneys’ fees under Florida Statute Section 627.428” because, “[i]f

the dispute is within the scope of 627.428 and the insurer loses, the insurer is always obligated for

attorney’s fees.” Id. at 2 (quoting Lexow, 602 So. 2d at 531). In support, the Marquezes note that

“Florida Courts have awarded attorneys’ fees to insureds in coverage dispute actions even when

coverage ha[s] not been established.” Id. at 4. (citing Capitol Specialty Ins. Corp. v. Ortiz, No. 17-

23329-Civ, 2019 WL 383868, at *1 (S.D. Fla. Jan. 15, 2019), report and recommendation adopted

sub nom. Capitol Specialty Ins. Corp. v. Ortiz by and Through Corona, No. 17-23329-Civ, 2019

WL 367916 (S.D. Fla. Jan. 30, 2019)).

2. Relevant Law

“[I]n diversity cases[,] a party’s right to attorney’s fees is determined by reference to state

law.” Prime, 270 F. App’x at 963. Section 627.428(1), Florida Statutes (2020), provides that:

Upon the rendition of a judgment or decree by any of the courts of this state against

an insurer and in favor of any named or omnibus insured or the named beneficiary

under a policy or contract executed by the insurer, the trial court or, in the event of

an appeal in which the insured or beneficiary prevails, the appellate court shall

3 In the Reply, the Marquezes no longer argue that they are named insureds under the Policy.

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adjudge or decree against the insurer and in favor of the insured or beneficiary a

reasonable sum as fees or compensation for the insured's or beneficiary's attorney

prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2020) (emphasis added). The entry of any dismissal order—including

dismissal without prejudice—satisfies the “judgment or decree” requirement of section

627.428(1). See Atain Specialty Ins. Co. v. Henry’s Carpet & Interiors, Inc., 564 F. Supp. 3d 1265,

1270 (S.D. Fla. 2021); see also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. F. Vicino Drywall

II, Inc.¸ No. 10-60273-CV, 2011 WL 13214289, at *2 (S.D. Fla. Aug. 22, 2011), report and

recommendation adopted, No. 10-60273-cv, 2011 WL 13214290 (S.D. Fla. Sept. 13, 2011)

(“Judge Gold’s November 29, 2011 order dismissing National Union’s lawsuit certainly qualifies

as such a judgment or decree . . . .”). Moreover, as further clarified by the Florida Supreme Court,

“only the named or omnibus insured, the insured’s estate, specifically named beneficiaries under

the policy, and other third parties who claim policy coverage through an assignment are entitled

to an award of fees” under section 627.428(1). Cont’l Cas. Co. v. Ryan Inc. E., 974 So. 2d 368,

377 (Fla. 2008); see also MSPA Claims I, LLC v. Century Sur. Co., No. 16-20752-CIV, 2017 WL

998282, at *6 (S.D. Fla. Mar. 15, 2017) (“Under the language of the statute, only an insured or

named beneficiary has rights.”). “A named insured is one who is designated as an insured under

the liability policy.” Cont’l Cas. Co., 974 So. 2d at 374 (internal quotation marks and citation

omitted). An omnibus insured, on the other hand, “is one who is covered by a provision in the

policy but not specifically named or designated.” Id.

Assuming a party meets these necessary prerequisites, section 627.428(1) applies “both

when the insured prevails in a suit brought against its insurer and when the insured prevails in a

suit brought against it by its insurer.” Prime, 270 F. App’x at 963. This is because “the purpose of

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section 627.428 ‘is to discourage the contesting of valid claims against insurance companies and

to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue

to enforce their insurance contracts.’” Endurance Assurance Corp., 2020 WL 8258331, at *2

(quoting Lexow, 602 So. 2d at 531).

However, an insured need not prevail on the merits to recover attorneys’ fees under section

627.428(1). Prime, 270 F. App’x at 964; Capitol Specialty Ins. Corp., 2019 WL 383868, at *1

(finding that a different but substantially similar provision of the Insurance Code—section

626.9373, Florida Statutes—does not require the insured to prevail on the merits and establish

coverage). “Florida courts applying [section 627.428(1)] have awarded attorney’s fees even in

cases where the insured party did not prevail ‘on the merits.’” Prime, 270 F. App’x at 964. This

includes cases dismissed without prejudice for lack of jurisdiction, and cases dismissed without

prejudice based on the Ameritas factors. See Nat’l Union Fire, 2011 WL 13214289, at *2

(regarding dismissal without prejudice for lack of jurisdiction); Endurance Assurance Corp., 2020

WL 8258331, at *3 (regarding dismissal for prudential reasons utilizing the Ameritas factors). In

other words, “[i]f the dispute is within the scope of section 627.428 and the insurer loses, the

insurer is always obligated for attorney’s fees.” Lexow, 602 So. 2d at 531.

In Endurance Assurance Corp., defendants Elite Premium Finance, Inc. and Security

Finance, Inc. (“the defendants”) brought an insurance coverage action against the plaintiff insurer

in state court. Endurance Assurance Corp., 2020 WL 8258331, at *1. “While the state litigation

was pending, [the plaintiff insurer] filed an action [in federal court] . . . seeking a declaration that

it owed no duty to indemnify [a separate defendant] in the underlying suit.” Id. The defendants

subsequently “filed a motion to dismiss the action[,] asking the Court . . . to abstain from exercising

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jurisdiction based on the ongoing state court litigation,” which the Court granted based on the

Ameritas factors. Id. The plaintiff insurer appealed, and the Eleventh Circuit Court of Appeals

dismissed the action without prejudice. Id.

In addressing the defendants’ motion for attorneys’ fees filed thereafter, United States

Magistrate Judge Edwin G. Torres4 noted that “the Eleventh Circuit and the Florida Supreme

Court agree that the dismissal of an insurer’s claim mandates a fee award regardless of merits or

non-merits dismissal.” Id. at *3 (citing Capitol Specialty Ins. Corp., 2019 WL 383868, at *2 n.2

and cases cited therein). Accordingly, after “[t]aking all relevant cases and arguments into

consideration,” Judge Torres found that the defendants were entitled to attorneys’ fees under

section 627.428(1) on account of the court’s dismissal of the case “based on prudential reasons

(i.e. the Ameritas factors),” recommending that the defendants’ motion for attorneys’ fees be

granted. Id. at *3–4. United States District Judge Kathleen M. Williams adopted Judge Torres’

report and recommendation in its entirety, finding that the defendants “established entitlement to

attorneys’ fees under Fla. Stat. § 627.428.” Endurance Assurance Corp., 2021 WL 229977, at *1.

3. The Instant Case

As noted earlier, Southern-Owners’ position is that, under the facts of the case, the

Marquezes cannot establish that the damages alleged against them in the Underlying Lawsuit arise

“out of the ownership, maintenance or repair of that portion of the premises which is not reserved

for that member’s exclusive use or occupancy.” See § 627.428(1). Southern-Owners also argues

that, because the Court dismissed the instant case without prejudice for prudential reasons under

Ameritas, the Court necessarily could not have made any determination that the Marquezes were

4 The Honorable Edwin G. Torres is now Chief Magistrate Judge of the Southern District of Florida.

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covered under the Policy’s “Endorsement” such that the Marquezes are omnibus insureds entitled

to attorneys’ fees under section 627.428(1).

Here, the Endorsement to the Policy at issue states as follows:

SECTION II – WHO IS AN INSURED is amended to include as an additional

insured each individual member of the insured Homeowners Association, but only

with respect to liability arising out of the ownership, maintenance or repair of that

portion of the premises which is not reserved for that member’s exclusive use or

occupancy.

[DE 1-2 at 8] (italicized emphasis added). Pursuant to the plain language of the Policy’s

Endorsement, members of the Association are included as “additional insureds” under the Policy

only under certain circumstances—when liability arises “out of the ownership, maintenance or

repair of that portion of the premises which is not reserved for that member’s exclusive use or

occupancy.” Id. However, despite Southern-Owners’ arguments, the salient issue for purposes of

an attorneys’ fee award under section 627.428(1) is not whether the Marquezes qualify as

“additional insureds” under the Policy given the circumstances present in the instant case. Instead,

it is whether there exist any circumstances in general that would qualify the Marquezes as

“additional insureds” (or, omnibus insureds)5 under the Policy and Florida law such that they are

entitled to an award of attorneys’ fees under that statutory provision.

To determine otherwise would lead to an absurd result. Requiring the Court to first

determine whether the Marquezes do indeed qualify as “additional insureds” under the facts of the

case prior to any award of attorneys’ fees, or to preclude attorneys’ fees because the case was

disposed of procedurally without reaching the merits, would be contrary to well-established law

5 See U.S. Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 369 So. 2d 410, 412 (Fla. 3d DCA 1979) (referring to

omnibus insureds and additional insureds interchangeably), Davis v. Travelers Ins. Co., 295 F.2d 205, 205 (5th Cir.

1961) (same).

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allowing for attorneys’ fees and costs under section 627.428(1) even after non-merits dismissal.

See Prime, 270 F. App’x at 964; Capitol Specialty Ins. Corp., 2019 WL 383868, at *1; Endurance

Assurance Corp., 2020 WL 8258331, at *3–4. Simply stated, if the Court were to adopt Southern-

Owners’ position, the Court could never find entitlement to fees under section 627.428(1) absent

adjudication of the case on the merits. This result would be at direct odds with the Florida Supreme

Court’s stated purpose for section 627.428—“to discourage the contesting of valid claims against

insurance companies and to reimburse successful insureds for their attorney’s fees when they are

compelled to defend or sue to enforce their insurance contracts.” Lexow, 602 So. 2d at 531.

Moreover, such a result would be at odds with the Florida Supreme Court’s assertion that, “[i]f the

dispute is within the scope of section 627.428 and the insurer loses, the insurer is always obligated

for attorney’s fees.” Id.

Because Southern-Owners admits that the Marquezes are members of the Association, DE

22 at 2 ¶ 12, the Court easily finds that there exist certain circumstances under which the

Marquezes qualify as “additional insureds” under the Policy and therefore as “omnibus insureds”

under Florida law, thereby bringing the dispute within the scope of section 627.428. See Cont’l

Cas. Co., 974 So. 2d 368 at 374 (defining an “omnibus insured” as “one who is covered by a

provision in the policy but not specifically named or designated”). Further, because this Court’s

dismissal of the case without prejudice necessarily satisfies the judgment or decree requirement,6

and because Florida courts have specifically found entitlement to section 627.428(1) attorneys’

fees even on non-merits dismissal,7 the Court finds that the Marquezes are entitled to attorneys’

6 See Atain Specialty Ins. Co., 564 F. Supp. 3d at 1270

7 Prime, 270 F. App’x at 964; Endurance Assurance Corp., 2020 WL 8258331, at *3–4; Nat’l Union Fire, 2011 WL

13214289, at *2; Capitol Specialty Ins. Corp., 2019 WL 383868, at *1.

16

fees under section 627.428(1). This is especially the case considering that the court in Endurance

Assurance Corp. awarded section 627.428 attorneys’ fees after dismissal of the case utilizing the

Ameritas factors—a situation which is entirely analogous and in fact almost identical to the instant

case.

B. Reasonable Attorneys’ Fees Amount

Because the Court finds the Marquezes are entitled to attorneys’ fees under section

627.428(1), the Court must next determine a reasonable attorneys’ fees amount.

1. The Parties’ Arguments

i) The Marquezes’ Motion [DE 86]

The Marquezes request $31,152.50 in attorneys’ fees, comprised of 143.9 total hours

expended by four attorneys and five paralegals at Pike & Lustig, LLP. [DE 86 at 8–9]. The

Marquezes contend that these 143.9 hours are “reasonable and related to the defense of the federal

declaratory action pursued by Southern-Owners.” Id. at 8. This is because, according to the

Marquezes, “[t]he position taken by Southern-Owners required the expenditure of a substantial

amount of time preparing answers and affirmative defenses, a counterclaim, motions, responses to

motions, replies to motions, drafting and filing a third-party complaint, and conducting discovery.”

Id. Further, in support of the reasonableness of their requested fee amount, the Marquezes note

that after conferring with Southern-Owners, certain time entries “have been redacted and are not

incorporated within this Amended Motion.” Id. at 8 n.1.

Next, the Marquezes argue that the hourly rates requested for the attorneys and paralegals

at Pike & Lustig, LLP are reasonable. In doing so, the Marquezes rely upon the affidavits of

Michael J. Pike, Esq., Daniel Lustig, Esq., Andrew J. Boloy, Esq., and Stuart Hartstone, Esq, which

17

generally demonstrate each attorney’s experience and federal court litigation history.8 Id. at 8–11.

The Marquezes additionally cite several Southern District of Florida cases in which the court

awarded attorneys’ fees utilizing an hourly rate that was either similar or identical to the hourly

rates requested by the Marquezes. Id. at 9–11.

Finally, the Marquezes argue that “[a] well-prepared fee petition also . . . include[s] a

summary, grouping the time entries by the nature of the activity or stage of the case.” Id. at 11

(quoting ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)). Accordingly, the Marquezes

have grouped numerous time entries by the stage of the litigation for the Court’s convenience,

drawing from the time logs provided at DE 86-1. Id. at 12–16.

ii) Southern-Owners’ Response [DE 87]

In Southern-Owners’ Response, Southern-Owners objects to the following hourly rates:

(1) $415 for Michael J. Pike, Esq.; (2) $395 for Daniel Lustig, Esq.; (3) $200 for Andrew J. Boloy,

Esq.; (4) $335 for Stuart Hartstone, Esq.; and (5) $160 each for paralegals Lisa McKee, Christine

Domb, Valery Vega, Stacey Chapman, and Belinda Arnett. [DE 87 at 5]. Although Southern-

Owners merely objects without explaining its reasoning, see DE 87 at 4, Southern-Owners has

attached the affidavit of Jessica Gregory, Esq., demonstrating the hourly rates of Williams,

Leininger, & Cosby, P.A.—Southern-Owners’ retained law firm for this case. [DE 87-1]. Within

the affidavit, Ms. Gregory lists the rates of the attorneys and support staff “who have worked on

this file,” with no hourly attorney rate therein exceeding $200, nor any paralegal rate exceeding

$90. [DE 87-1]. Thus, Southern-Owners’ argument presumably is that the Marquezes’ rates are

8 The affidavits are available at DE 86-2.

18

objectionable because they substantially exceed the rates charged by Southern-Owners’ retained

law firm.

Southern-Owners next objects to a multitude of time entries—specifically, to: (1) 1.25

hours spent researching a breach of contract action against the Association; (2) 0.2 hours

attributable to discussions about bringing an indemnity count against the Association; (3) 0.2 hours

spent discussing amending the state court action; (4) 1.5 hours spent “conducting legal research

on seeking indemnification from the [Association] within the state court action and/or the federal

court action”; (5) 16.45 total hours “pertaining to the drafting and filing of a Motion for leave to

file Third Party Complaint, drafting/filing/serving of the Third Party Complaint, and the Motion

to Dismiss the Third Party Complaint”; (6) 0.2 hours attributable to a phone conversation with the

Marquezes’ state court attorney about continued representation as counsel; (7) 0.2 hours

attributable to a phone conversation with the Marquezes about participating “as personal counsel

in the mediation for the underlying state court action”; (8) 0.2 hours spent conversing with Jenna

Marquez about the status of the case and the filing of a motion for attorneys’ fees; (9) 0.15 hours

attributable to a phone call with Jenna Marquez discussing “the transfer of the state court dec action

to the same Judge as the parallel personal injury case”; and (10) 0.1 hours spent “[r]eceiv[ing] and

review[ing]” a motion to transfer. [DE 87 at 8–11]. Southern-Owners argues that these time entries

are not related to the federal declaratory action and/or the specific claims or defenses at issue

between Southern-Owners and the Marquezes. Id.

Further, beyond its objections to time entries as being unrelated to the federal declaratory

action or as being part of claims unconnected to Southern-Owners, Southern-Owners also objects

to several entries as being excessive or as containing duplicate billing. Id. at 11–12. In total, these

19

allegedly objectionable entries amount to 24.55 hours, and consist of Mr. Lustig’s work in

reviewing the answer, affirmative defenses, and counterclaim, and Mr. Boloy’s work in: (1)

researching the ambiguity of insurance policies; (2) drafting the answer and affirmative defenses;

(3) researching adding a counterclaim; (4) analyzing and reviewing the Murphys’ counterclaim

and Southern-Owners’ motion to dismiss; (5) drafting the counterclaim against Southern-Owners;

and (6) reviewing and analyzing the state court action to revise the arguments made in federal

court. Id. at 11–12. According to Southern-Owners, the “Answer and Affirmative Defenses” is

“essentially 8 pages,” the Counterclaim is “essentially 5 pages,” and the Complaint in this case

involved a single count related to an insurance coverage issue. Id. at 12. Southern-Owners

therefore argues that it is “unreasonable to expect Southern-Owners to pay” the 24.55 hours

attributable to drafting these documents. Id.

Southern-Owners also objects to certain entries as being “clerical work.” Id. at 11, 13.

Specifically, Southern-Owners objects to 0.4 total hours of time spent reviewing the calendar and

docketing upcoming deadlines by paralegal Belinda Arnett. Id. at 13. And lastly, Southern-Owners

objects to the 6.35 hours billed in connection with drafting and revising the amended motion for

attorneys’ fees (the instant Motion), which Southern-Owners maintains is “excessive for revising

and filing an amended motion for fees which is essentially identical to the previously filed motion

for fees, which time entries have already been included in prior billing entries.” Id. at 13–14. Thus,

overall, Southern-Owners objects to 51.75 hours of the Marquezes’ 143.9 claimed hours—or,

roughly 36% of the claimed hours.

20

iii) The Marquezes’ Reply [DE 88]

In the Marquezes’ Reply, the Marquezes argue that, because Southern-Owners has

challenged only certain time entries related to defending against the declaratory action, Southern-

Owners has therefore “conceded to the entitlement of fees for certain time entries.” [DE 88 at 3].

However, of the time entries that Southern-Owners does challenge, the Marquezes argue “the time

entries and fees for time expended shown in the . . . [Motion] are wholly related to the defense of

Southern-Owners’ declaratory action against the Marquezes.” Id.

The Marquezes thereafter argue that—with respect to the reasonableness of the requested

hourly rates—“[b]ased on the affidavits provided and the work product produced to this Court, it

is evident that the Marquezes retained lawyers with the experience, skill and reputation to defend

against Southern-Owners’ declaratory action.” Id. at 5. In support, the Marquezes note that United

States District Judge Beth Bloom granted a $375 per hour rate for attorneys Michael J. Pike and

Daniel Lustig four years ago, and that numerous decisions from the Southern District of Florida—

including a decision from the Undersigned—have approved of a $200 rate for young associates in

this district. Id. at 5–6.

As to Southern-Owners’ arguments pertaining to the third-party complaint, the Marquezes

argue that “the time expended by Pike & Lustig, LLP concerning the third-party complaint is

wholly related to the defense of the declaratory action brought by Southern-Owners.” Id. at 6. In

connection therewith, the Marquezes argue that “[t]he Association is the policyholder and named

insured under the Policy, yet, Southern-Owners chose not to make the Association a party to this

action [and in fact] . . . contested the Marquezes [sic] Motion for Leave to [F]ile Third-Party

Complaint against the Association[,] causing the Marquezes to incur additional fees.” Id. at 6–7.

21

Next, with respect to the time entries concerning the revisions to the Motion, the Marquezes

first argue that “[t]he conferral between the Marquezes’ [sic] and Southern-Owners resulted in the

Marquezes omitting certain time entries and fees based upon the argument of entitlement, not the

amount that was charged for certain tasks.” Id. at 7. With that being said, the Marquezes maintain

that “the time entries and fees for the revisions to the Motion following conferral pursuant to

Local[] Rule 7.3 are still recoverable, especially since entitlement has not been determined” and

since “Southern-Owners caused the Marquezes and this Court to expend unnecessary time

relitigating this issue due to Southern-Owners seeking to appeal this Court’s Order and then

abandoning that appeal.” Id.

Finally, as to Southern-Owners’ challenge to the time entries relating to researching and

drafting the answer, affirmative defenses, and counterclaim, the Marquezes argue that, “[g]iven

the unusual complexities in this action, specifically, the ambiguous terms within the Policy and

the legal arguments put forward by the Marquezes, it would have been unjust for the Marquezes’

attorneys to not have put in the time and effort required to properly defend against this action,

specifically, the Marquezes [sic] Answer and Affirmative Defenses and Counterclaim, which

essentially frames the Marquezes [sic] entire defense of this action.” Id.

2. Law Regarding Calculation of Attorneys’ Fees

A reasonable attorneys’ fee award is “properly calculated by multiplying the number of

hours reasonably expended on the litigation times a reasonable hourly rate.” ACLU 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

22

‘reasonable’ hourly rate and what number of compensable hours is ‘reasonable,’ the court is to

consider the 12 factors enumerated in Johnson v. Ga. 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

employment by the attorney due to acceptance of the case; (5) the customary fee;

(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client

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. Hous. Auth. of Montgomery, 836 F.2d

1292, 1299 (11th Cir. 1999)). The fee applicant bears the burden of establishing the claimed market

rate. See id. at 427. The Court may use its own experience in assessing the reasonableness of

attorneys’ fees. Norman, 836 F.2d at 1299.

With regard to the type of evidence that the fee claimant should produce in support of a

claim, in Barnes, the Eleventh Circuit has stated that

[t]he “fee applicant bears the burden of establishing entitlement and documenting

the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. That burden

includes “supplying the court with specific and detailed evidence from which the

court can determine the reasonable hourly rate. Further, fee counsel should have

maintained records to show the time spent on the different claims, and the general

subject matter of the time expenditures ought to be set out with sufficient

particularity so that the district court can assess the time claimed for each activity .

. . . A well-prepared fee petition also would include a summary, grouping the time

entries by the nature of the activity or stage of the case.” Id. (citations omitted).

168 F.3d at 427.

23

In submitting a request for attorneys’ fees, fee applicants are required to exercise “billing

judgment.” Id. at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). If fee applicants

do not exclude “excessive, redundant, or otherwise unnecessary” hours, which are hours “that

would be unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill,

reputation or experience of counsel,” the court must exercise billing judgment for them. See id.

(quoting Norman, 836 F.2d at 1301). The burden rests on the movant to submit a comprehensive

request for fees so the court can determine how much time was reasonably expended. Loranger,

10 F.3d at 782. “But trial courts need not, and indeed should not, become green-eyeshade

accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve

auditing perfection. So trial courts may take into account their overall sense of a suit, and may use

estimates in calculating and allocating an attorney's time.” Fox v. Vice, 563 U.S. 826, 838 (2011).

3. The Instant Case

i) Counsel’s Hourly Rate

The Marquezes seek $415 per hour for Michael J. Pike, Esq., $395 per hour for Daniel

Lustig, Esq., $200 per hour for Andrew J. Boloy, Esq., $335 per hour for Stuart Hartstone, Esq.,

and $160 per hour each for paralegals Christie Domb, Valery Vega, Stacey Chapman, Lisa McKee,

and Belinda Barnett. [DE 86 at 8–9].

a. Mr. Pike & Mr. Lustig

Mr. Pike’s standard hourly rate is $425, discounted to $415 in this case. [DE 86 at 9]. Mr.

Pike avers that he has been licensed to practice law in Florida since 2002, has been a member in

good standing before this Court since approximately 2003, and is the managing partner at Pike &

Lustig, LLP. [DE 86-2 at 2]. Mr. Pike’s practice is “largely dedicated to commercial litigation, a

24

portion of which includes insurance contract dispute matters.” Id. Moreover, Mr. Pike has tried

“numerous jury and bench trial cases in state and federal court.” Id. In this regard, he has attached

a list of roughly 109 cases litigated in federal court. Id. at 2, 5–11.

Mr. Lustig, in contrast, attests that he has been licensed to practice in Florida since 2008

and has been a member in good standing before this Court since 2009. [DE 86-2 at 13]. Similar to

Mr. Pike, Mr. Lustig’s practice is also “largely dedicated to commercial litigation, a portion of

which involves insurance contract matters.” Id. And, as also similar to Mr. Pike, Mr. Lustig has

attached a list of cases litigated in federal court, comprised of approximately 91 cases. Id. at 16–

21. In total, Mr. Pike seeks fees in connection with 5.9 hours expended on the instant case, while

Mr. Lustig seeks fees in connection with 6.4 hours expended. [DE 86-2 at 3; DE 86-2 at 13].

Although there is no expert affidavit in support of Mr. Pike or Mr. Lustig’s hourly rate, the

Court first notes that the lack of an expert affidavit is not fatal. After all, “the court, either trial or

appellate, is itself an expert on the question and may consider its own knowledge and experience

concerning reasonable and proper fees and may form an independent judgment either with or

without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (citations omitted).

Accordingly, based upon this information and the Court’s own knowledge and experience,

the Court concludes: (1) that a $415 hourly rate is a reasonable rate in this case for Mr. Pike, the

managing partner of a commercial litigation firm who has almost 20 years of experience; and (2)

that a $395 hourly rate is a reasonable rate for Mr. Lustig, an attorney with more than ten years of

experience. See Strategic Mktg., Inc. v. Great Blue Heron Software, LLC, No. 15-cv-80032, 2017

WL 1284773, at *5–6 (S.D. Fla. Feb. 16, 2017), report and recommendation adopted, No. 15-cv-

80032, 2017 WL 11680172, at *1 (S.D. Fla. Mar. 3, 2017) (finding an hourly rate of $375

25

reasonable for both Mr. Pike and Mr. Lustig in connection with an intellectual property case); B/E

Aerospace, Inc. v. Travelers Cas. & Sur. Co. of Am., No. 16-81293-cv, 2017 WL 9288915, at *

(S.D. Fla. Aug. 29, 2017) (finding a $472.50 hourly fee “somewhat higher than average” but

reasonable for a partner in an insurance coverage case). In fact, the Undersigned has already

determined rates higher than those requested by Mr. Pike and Mr. Lustig to be reasonable for

attorneys of relatively similar experience in the South Florida market. See Mt. Hawley Ins. Co. v.

Roebuck, No. 17-CV-80213, 2020 WL 5664949, at *3 (S.D. Fla. Sept. 2, 2020), report and

recommendation adopted, No. 17-CV-80213, 2020 WL 5658719 (S.D. Fla. Sept. 23, 2020)

(finding a rate of $430 for an attorney with 10 years of litigation/appeals experience reasonable in

the South Florida market in a case concerning attorneys’ fees under section 627.428); Palm

Partners, LLC v. Netnames A/S, No. 17-CV-80577, 2018 WL 4208348, at *3 (S.D. Fla. July 20,

2018), report and recommendation adopted, No. 17-CV-80577, 2018 WL 4208339 (S.D. Fla. Aug.

30, 2018) (finding a $425 hourly rate reasonable for a partner practicing law in federal court for

more than 10 years).

In making this determination, the Court specifically takes note of the limited number of

hours expended by both Mr. Pike and Mr. Lustig in this case, and of Southern-Owners’ failure to

cite any supporting law when objecting to the hourly rates. Moreover, despite Southern-Owners’

objection to the aforementioned hourly rates based entirely on the substantially lower rates charged

by Southern-Owners’ counsel, the Court finds that the rates charged by Southern-Owners’ retained

insurance defense firm are not comparable to the rates charged by the Marquezes’ private counsel

in the case at hand. See Lender v. Geico Gen. Ins. Co., No. 09-22303-CIV, 2014 WL 12805694,

26

at *3 (S.D. Fla. Oct. 31, 2014) (stating that the rates charged by insurance defense counsel “are

not necessarily comparable to rates charged by other private attorneys”).

b. Mr. Boloy

Mr. Boloy is “a member in good standing of the Florida Bar since September of 2019 and

of this Court since March of 2020.” [DE 86-2 at 23]. In his role as an associate attorney at Pike &

Lustig, LLP, Mr. Boloy’s practice involves commercial and personal injury matters in both state

and federal court, including cases involving insurance contract disputes. Id. In total, Mr. Boloy

avers that he has expended 121 hours on this case as the lead associate, requesting fees in

connection therewith. Id. at 23–24.

While there is also no expert affidavit in support of Mr. Boloy’s hourly rate, as just stated,

the Court is “itself an expert on the question and may consider its own knowledge and experience

concerning reasonable and proper fees and may form an independent judgment either with or

without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (citations omitted). Thus,

drawing from the Court’s own knowledge and experience, the Court concludes that a $200 hourly

rate is a reasonable rate for a newly barred attorney in South Florida, and therefore, for Mr. Boloy

in this case. See Garcia v. United Recovery Sols., Inc., No. 17-CV-81199, 2018 WL 3701151, at

*3–4 (S.D. Fla. July 16, 2018), report and recommendation adopted, No. 17-cv-81199, 2018 WL

4409981 (S.D. Fla. Aug. 1, 2018) (finding a $200 hourly rate reasonable for an attorney in South

Florida with less than 3 years of experience); Wales-Walden v. Ak “N” Eli, LLC, No. 17-20658-

CIV, 2018 WL 6812692, at *2 (S.D. Fla. Oct. 12, 2018), report and recommendation adopted, No.

17-cv-20658, 2018 WL 6807316 (S.D. Fla. Oct. 29, 2018) (finding $200 hourly rate reasonable

for a second-year associate). Indeed, the Undersigned has already specifically found a $200 hourly

27

rate to be reasonable for an attorney with approximately one year of experience in South Florida.

See H.C. v. Bradshaw, 426 F. Supp. 3d 1266, 1281 (S.D. Fla. 2019). To the extent Southern-

Owners objects to Mr. Boloy’s hourly rate solely on account of the affidavit of Ms. Gregory—

who merely states the rates charged at her insurance defense firm [DE 87-1]—Southern-Owners’

argument is not well-taken, for the reasons stated above.

c. Mr. Hartstone

Mr. Hartstone attests that he is a “member in good standing of the Florida Bar since

February of 2011 and of this Court since October of 2021.” [DE 86-2 at 28]. Mr. Hartstone joined

Pike & Lustig, LLP in July of 2021, after working six years as a Senior Supervising Trial Court

Law Clerk at the Fifteenth Judicial Circuit in and for Palm Beach County. [DE 86 at 10]. “Prior to

joining the Fifteenth Circuit, [Mr. Hartstone] . . . focused his practice in criminal defense, serving

as the Acting Executive Director of the Florida Capital Resource Center, a nonprofit organization

dedicated to the defense and mitigation of death penalty cases.” Id. In total, Mr. Hartstone seeks

fees in connection with 1.6 hours expended on this case. [DE 86-2 at 28].

While there is also no expert affidavit in support of Mr. Hartstone’s hourly rate, to reiterate

once more, the Court is “itself an expert on the question and may consider its own knowledge and

experience concerning reasonable and proper fees and may form an independent judgment either

with or without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (citations omitted).

Thus, again, drawing from the Court’s own knowledge and experience, the Court concludes that a

$335 hourly rate is a reasonable rate in this case for Mr. Hartstone, an attorney with roughly ten

years of experience. Mt. Hawley Ins. Co. v. Roebuck, 2020 WL 5664949, at *3 (finding a rate of

$430 for an attorney with 10 years of litigation/appeals experience reasonable in the South Florida

28

market in a case concerning attorneys’ fees under section 627.428); St. Louis Condo. Ass’n v.

Rockhill Ins. Co., No. 18-21365-Civ, 2019 WL 7905013, at *4 (S.D. Fla. Oct. 10, 2019), report

and recommendation adopted in part, No. 18-21365-CIV, 2020 WL 13049355 (S.D. Fla. Mar. 13,

2020) (finding $325 for a seventh-year attorney to be reasonable in an insurance case); Palm

Partners, 2018 WL 4208348, at *3 (finding a $425 hourly rate reasonable for a partner practicing

law in federal court for more than 10 years). In making this finding, the Court has considered the

limited number of hours expended by Mr. Hartstone and Southern-Owners’ lack of citation to any

case law supporting its objections to the hourly rate of Mr. Hartstone.

d. Ms. Domb, Ms. Vega, Ms. Chapman, Ms. McKee, and Ms. Barnett

Lastly, the Marquezes request $160 for each of five separate paralegals— Ms. Domb, Ms.

Vega, Ms. Chapman, Ms. McKee, and Ms. Barnett. There is no affidavit or assertion as to the

experience of these five paralegals. Nonetheless, the Court, drawing from its own independent

knowledge and experience, finds that a reduction in the paralegals’ hourly rate from $160 to $125

is appropriate and that a $125 hourly rate is reasonable for a paralegal in South Florida under these

circumstances. See Barberi v. TCB Sport Ent. LLC, No. 21-CV-60726, 2022 WL 625239, at *4

(S.D. Fla. Feb. 16, 2022), report and recommendation adopted, No. 21-60726-CIV, 2022 WL

624998 (S.D. Fla. Mar. 3, 2022) (noting that courts have consistently reduced paralegals’ hourly

rates when provided little to no information on their experience or qualifications and therefore

finding a reduction in the paralegals’ hourly rate to $100 to be appropriate); Purcella v. Mercantile

Adjustment Bureau, LLC, No. 18-CV-61268, 2019 WL 6462550, at *4 (S.D. Fla. Nov. 13, 2019),

report and recommendation adopted, No. 18-cv-61268, 2019 WL 6608900 (S.D. Fla. Dec. 5,

2019) (reducing paralegal’s hourly rate from $150 to $125 after the plaintiff provided “little

29

professional background”). The Court notes the limited time expended by the five paralegals (9

hours) in comparison to the total amount requested (143.9 hours) in making this finding, as well

as Southern-Owners’ failure to cite any supporting law in connection with its objections to the

rates of these five paralegals.

ii) Number of Hours Reasonably Expended

In order to determine the reasonable number of hours expended by the Marquezes’ counsel,

the Court has carefully reviewed the Motion, the Response, the Reply, the attachments thereto

(including the detailed time logs attached as DE 86-1), and Southern-Owners’ objections. The

Court will address Southern-Owners’ objections—specifically, the objections to: (1) the 20.45

hours of “time entries . . . unrelated to the defense of the Declaratory Judgment Action and/or

Order of dismissal”; (2) the 24.55 hours of “time entries as being excessive [or] containing

duplicate billing”; (3) the 0.4 hours of time entries related to non-compensable clerical work; and

(4) the 6.35 hours of time entries spent revising the instant Motion.

But before doing so, the Court finds that, to the extent Southern-Owners has failed to object

to the majority of time entries, Southern-Owners has waived any argument as to the reasonableness

of those time entries. See Tropical Paradise Resorts, LLC v. JBSHBM, LLC, No. 18-CV-60912,

2021 WL 2269822, at *9 (S.D. Fla. Apr. 30, 2021), report and recommendation adopted, No. 18-

cv-60912, 2021 WL 2024424 (S.D. Fla. May 21, 2021) (finding that failure to object to the

reasonableness of the amount requested resulted in waiver of objection as to the reasonableness of

the claimed fees). Nonetheless, despite this waiver, the Court has taken the total billing records

into consideration for purposes of determining a proper fee amount.

30

a. Unrelated Time Entries

In reviewing the Marquezes’ request for the 20.45 hours for which Southern-Owners

objects, it does appear that a small portion of the time requested is “unnecessary” and that the

Marquezes have not exercised proper billing judgment to a limited extent. See Barnes, 168 F.3d at

428. Specifically, the Marquezes’ attorneys improperly billed for certain entries pertaining to the

state court action. Evanston Ins. Co. v. Lauris Boulanger, Inc., No. 09-21172-CIV, 2010 WL

556522, at *2 (S.D. Fla. Feb. 11, 2010) (“To the extent that the counterclaim seeks attorneys [sic]

fees for the underlying state-court action, this claim is filed in the wrong court.”). Section

627.428(3) provides that “[w]hen so awarded, compensation or fees of the attorney shall be

included in the judgment or decree rendered in the case.” § 627.428(3), Fla. Stat. (emphasis

added). Thus, as noted by the court in Evanston Insurance Co., “[t]his statutory language indicates

that the court rendering the judgment [or its functional equivalent] is the proper court to award

attorneys [sic] fees under the statute.” Evanston Ins. Co., 2010 WL 556522, at *2. Here, therefore,

the Marquezes’ request for costs related to the state court action is improper.

However, to the extent Southern-Owners takes issue with the third-party complaint and

related filings, the Court does find that the hours related to the third-party complaint are not

“excessive, redundant, or otherwise unnecessary.” See Barnes, 168 F.3d at 428. Despite the

Association being the named insured under the Policy, Southern-Owners chose not to involve the

Association and opposed the Marquezes’ Third-Party Complaint, see DE 42, which only became

necessary in the first instance because Southern-Owners improperly filed a parallel action.

31

b. Excessive or Duplicative Billing

Next, the Court considers the 24.55 hours of entries that Southern-Owners maintains are

excessive or contain duplicate billing. As to these hours, several tasks seem to have taken longer

than what can be considered reasonable. For example, Mr. Boloy spent 14.75 hours drafting the

answer, affirmative defenses, and counterclaim over the course of October 10, 2020, October 12,

2020 and October 13, 2020. [DE 86-1 at 2]. He then spent 1.75 hours revising such on October 14,

2020. [DE 86-1 at 2–3]. And, after submitting the drafts to Mr. Lustig for review, Mr. Boloy spent

another 6.1 hours revising the very same answer, affirmative defenses, and counterclaim. Id. at 3.

The Court finds this amount of time excessive and therefore finds that it should be partially

reduced. See Bivins, 548 F.3d at 1350 (providing for a reduction in the number of hours or an

across-the-board cut in calculating a fee award if a court finds the hours billed to be excessive or

unnecessary).

c. Clerical Work

Southern-Owners takes issue with 0.4 total hours of allegedly objectionable non-

compensable clerical work. Time entries for clerical or administrative tasks should be excluded.

See Thompson v. Branch Banking & Tr. Co., No. 19-CV-60108, 2020 WL 7061558, at *3 (S.D.

Fla. Nov. 10, 2020), report and recommendation adopted, No. 19-CV-60108, 2020 WL 7059353

(S.D. Fla. Dec. 2, 2020), appeal dismissed, No. 21-10010-J, 2021 WL 1327212 (11th Cir. Feb. 5,

2021); Ortega v. Berryhill, No. 16-24697-CIV, 2017 WL 6026701, at *2 (S.D. Fla. Dec. 5, 2017)

(“Purely clerical or secretarial tasks that require no legal skill or training, such as converting

pleadings to PDF, faxing and mailing, updating lists and calendars, and filing or e-filing

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documents, should not be billed at a paralegal rate regardless of who performs them.” (citing

Spegon v. Cath. Bishop of Chi., 175 F.3d 544, 553 (7th Cir. 1999)).

Here, paralegal Belinda Arnett billed .4 hours performing clerical or secretarial tasks such

as reviewing and updating calendars or reviewing the docket. See Ortega, 2017 WL 6026701, at

*2. The Court finds that this time is non-compensable and therefore takes these 0.4 non-

compensable hours into consideration when determining the lodestar amount. See Bivins, 548 F.3d

at 1350.

d. Excessive or Duplicative Billing (As to the Motion)

Lastly, the Court considers the 6.35 hours spent revising the original motion for attorneys’

fees and costs. After comparing the Marquezes’ Verified Motion for Entitlement and Award of

Attorneys’ Fees and Costs [DE 73] with the instant Motion [DE 86], it does appear that at least

some of these 6.35 hours are excessive. The two motions are substantially similar, with the main

difference being the extra background added to address the qualifications of Mr. Hartstone (which

merely constitutes two added paragraphs). Consequently, the Court finds it would be unreasonable

to bill the full 6.35 hours spent revising the Motion. See Barnes, 168 F.3d at 428.

4. Calculation of Lodestar Amount

The Court has carefully considered the deficiencies in the Marquezes’ counsel’s billing

records, which include a relatively small amount of objectionable time entries that: (1) are

connected to the Underlying Lawsuit; (2) bill excessively for certain tasks; and (3) are related to

clerical tasks. The Court therefore finds it appropriate to reduce the time billed. “When a district

court finds the number of hours claimed is unreasonably high, the court has two choices; it may

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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).

Here, the Undersigned finds that an across-the-board reduction in hours is appropriate to

account for these billing deficiencies. The Court will reduce the hours claimed by 5%, which

results in an award of 5.61 hours for Mr. Pike, 6.08 hours for Mr. Lustig, 114.95 hours for Mr.

Boloy, 1.52 hours for Mr. Hartstone, 4.85 hours for Christie Domb, 1.05 hours for Valery Vega,

1.43 hours for Stacey Chapman, 0.86 hours for Lisa McKee, and 0.38 hours for Belinda Barnett.

Therefore, the Marquezes are entitled to an attorneys’ fees award against Southern-Owners in the

amount of $29,300.20 ($2,328.15 for Mr. Pike’s billed hours, $2,401.60 for Mr. Lustig’s hours,

$22,990.00 for Mr. Boloy’s hours, $509.20 for Mr. Hartstone’s hours, and $1,071.25 for the

collective hours of Ms. Domb, Ms. Vega, Ms. Chapman, Ms. McKee, and Ms. Barnett).

C. Costs

1. The Parties’ Arguments

i) The Marquezes’ Motion [DE 86]

In the last section of their Motion—titled “Recovery of Non-Taxable Costs”—the

Marquezes simply argue that, “[c]onsistent with Fla. Stat. § 57.041, [they] are entitled to recover

$119.94 against Southern-Owners,” comprised of service of process fees and postage fees. [DE 86

at 16–17]. The Marquezes have attached an Invoice [DE 86-3 at 1] from C.W. Services &

Associates, Inc., and a United States Postal Service Certified Mail Receipt [DE 86-3 at 2] in

support.

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ii) Southern-Owners’ Response [DE 87]

Southern-Owners begins by arguing that section 627.428, Florida Statutes, “does not

contain any mention of the right to an award of costs.” [DE 87 at 14]. Southern-Owners therefore

argues that, because the Marquezes have the burden of demonstrating entitlement to costs and

“have offered no argument or authority to suggest that non-taxable costs are awardable pursuant

to section 627.428(1),” this Court should deny the Marquezes request for non-taxable costs “to the

extent they are requesting such costs under § 627.428(1).” [DE 87 at 14–15].

Southern-Owners also argues that the Marquezes are not entitled to costs under section

57.041, Florida Statutes, or to costs as the prevailing party. Id. at 15. With respect to the former,

according to Southern-Owners, “the Marquezes have not obtained a ‘judgment’ or its functional

equivalent within the meaning of section 57.041.” Id. As to the latter, Southern-Owners argues

that the Marquezes are not the “prevailing party” because “[a]n Order dismissing the case without

prejudice [due to] the district court . . . declining to exercise jurisdiction resolves only a

procedural issue, not any substantive issue in the case.” Id. at 16. And lastly, Southern-Owners

notes the general rule that a prevailing party may only recover taxable costs, noting that the

Marquezes request “non-taxable” costs without providing any authority. Id.

iii) The Marquezes’ Reply [DE 88]

The Marquezes do not respond to any of Southern-Owners’ cost arguments in their Reply,

which is perhaps telling. Instead, they focus entirely on attorneys’ fees.

2. Law and Application

Despite the Marquezes’ request for non-taxable costs under section 57.041, Florida

Statutes, “[i]n diversity cases, federal law controls the award of costs.” Jin Zhi Star Lt. LLC v. Am.

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Zurich Ins. Co., No. 08-61191-CIV, 2009 WL 2899913, at *8 (S.D. Fla. Sept. 2009); Grasso v.

Grasso, No. 13-cv-3186, 2016 WL 8716273 (M.D. Fla. Oct. 21, 2016), report and

recommendation adopted, No. 13-cv-3186, 2016 WL 7240051 (M.D. Fla. Dec. 15, 2016) (“In

diversity cases, a district court must apply federal law to determine whether a [party] is entitled to

costs.”). “The only exception by which state law provides the rules for determining costs is where

the applicable state law expands the costs allowed under § 1920.” Jablonski v. St. Paul Fire &

Marine Ins. Co., No. 07-cv-00386, 2010 WL 1417063, at *10 (M.D. Fla. Apr. 7, 2019). “But, in

order to do so, the substantive law to be applied must ‘explicitly’ authorize the allowance of

additional costs.” Id. (alteration omitted) (citing Parkes v. Hall, 906 F.2d 658, 660 (11th Cir.

1990)). In this regard, “federal courts may award costs other than those enumerated in § 1920

pursuant to contractual or statutory authorization.” Piper Aircraft, Inc. v. Czech Sport Aircraft,

A.S., No. 12-14107-CIV, 2020 WL 7774743, at *1 n.1 (S.D. Fla. Dec. 10, 2020), report and

recommendation adopted, No. 12-14107-CIV, 2020 WL 7770896 (S.D. Fla. Dec. 30, 2020).

Federal Rule of Civil Procedure 54 states in part, “[u]nless a federal statute, these rules, or

a court provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing

party.” Fed. R. Civ. P. 54(d)(1). A “prevailing party” is the party in whose favor judgment is

rendered by the Court. See Util. Automation 2000, Inc. v. Choctawhatchee Elec. Coop., Inc., 298

F.3d 1238, 1248 (11th Cir. 2002). “To be a prevailing party, one need only obtain some relief on

the merits of his claim.” Pierre-Louis v. Baggage Airline Guest Servs., Inc., No. 0:19-CV-61306-

RAR, 2021 WL 633217, at *2 (S.D. Fla. Jan. 26, 2021), report and recommendation adopted, No.

19-CV-61306-RAR, 2021 WL 617003 (S.D. Fla. Feb. 16, 2021) (citing Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep't of Health & Hum. Res., 532 U.S. 598, 603–05 (2001) (a prevailing

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party needs a judgment or consent decree to prove that there has been an “alteration in the legal

relationship of the parties”)).

However, under federal law, “the law is well settled that a dismissal without prejudice does

not alter the legal relationship between the parties.” Sream, Inc. v. Cary Tobacco I, Inc., No. 16-

23963-Civ, 2017 WL 6408981, at *3 (S.D. Fla. Aug. 2, 2017), report and recommendation

adopted, No. 16-cv-23963, 2017 WL 6408996 (S.D. Fla. Aug. 17, 2017). Thus, because section

627.428(1) allows for attorneys’ fees even when there is a dismissal without prejudice,9

circumstances exist where a party may be entitled to attorneys’ fees under section 627.428(1),

Florida Statutes, but not to costs under federal law as the prevailing party. See Encompass

Floridian Ins. Co. v. Dunn, No. 18-cv-228, 2019 WL 2331649, at *1–2 (M.D. Fla. May 9, 2019),

report and recommendation adopted, No. 18-cv-228, 2019 WL 2330459 (M.D. Fla. May 31,

2019).

Here, the Court declined jurisdiction based on the Ameritas factors. While the Marquezes

are therefore entitled to attorneys’ fees under section 627.428(1) due to the Court’s accompanying

dismissal without prejudice—which was against Southern-Owners and in favor of the

Marquezes—the Marquezes are not the prevailing party under federal law. This is because the

Court necessarily declined to reach the merits of the case and “because a dismissal without

prejudice places no ‘judicial imprimatur’ on the ‘legal relationship of the parties,’ which is the

‘touchstone of the prevailing party inquiry.’” United States v. $70,670.00 in U.S. Currency, 929

F.3d 1293, 1303 (11th Cir. 2019) (quoting CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419,

9 Prime, 270 F. App’x at 964; Endurance Assurance Corp., 2020 WL 8258331, at *3–4; Nat’l Union Fire, 2011 WL

13214289, at *2; Capitol Specialty Ins. Corp., 2019 WL 383868, at *1.

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420(2016)). Accordingly, the Court finds that the Marquezes are not entitled to costs under federal

law.

Nonetheless, even though the Marquezes “seek costs pursuant to section 57.041 of the

Florida Statutes rather than Federal Rule of Civil Procedure 54(d)(1) but entirely fail to support

their assertion that Florida’s costs statute governs,” Chen v. Walsh, No. 18-23894-CV, 2021 WL

3403942, at *5 (S.D. Fla. Mar. 8, 2021), the Court will consider the Marquezes’ entitlement to

costs under section 57.041. Section 57.041 provides that “[t]he party recovering judgment shall

recover all his or her legal costs and charges which shall be included in the judgment.” § 57.041(1),

Fla. Stat. “The costs that are permitted under Fla. Stat. § 57.041 are different from the costs that

are permitted under 28 U.S.C. § 1920.” Maiden Specialty Ins. Co. v. Three Chefs & a Chicken,

Inc., No. 12-22724-CIV, 2014 WL 11429052, at *11 (S.D. Fla. Jan. 28, 2014), report and

recommendation adopted sub nom. Maiden Specialty Ins. Co. v. Chefs, No. 12-22724-CIV, 2014

WL 11429053 (S.D. Fla. Mar. 13, 2014). “Under Fla. Stat. § 57.041, the party recovering judgment

is entitled to recover all legal costs and charges . . . [which] are not limited to those costs listed in

28 U.S.C. § 1920.” Id.

Thus, pursuant to this body of law, the Court may seemingly examine the Marquezes’

request for costs under section 57.041 and state law. See Jablonski, 2010 WL 1417063, at *10.

However, even in doing so, the plain language of section 57.041 provides that there must be a

“party recovering judgment” in order for there to be an award of costs. See § 57.041(1), Fla. Stat.

As it relates to this language, Magdalena v. Toyota Motor Corp., 253 So. 3d 24 (Fla. 3d DCA

2017) is instructive. In that case, Florida’s Third District Court of Appeal examined section 57.041

in detail. Id. at 26–27. To that end, after noting that “section 57.041 is clear and unambiguous,”

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the court held “that a dismissal on the ground of forum non conveniens is not a judgment or ruling

on the merits. . . but rather a ruling which merely provides that another forum is more convenient

and would best serve the ends of justice.” Id. at 25–26. Consequently, to the extent that the trial

court had awarded costs under section 57.041 to Toyota as the prevailing party upon dismissal of

the case on forum non conveniens grounds instead of upon recovery of judgment, the Court found

reversible error. Id. at 28; see also Sherman v. Sherman, 279 So. 3d 188, 193 (Fla. 4th DCA 2019)

(noting the distinction between the “prevailing party” standard and the “party recovering

judgment,” clarifying that costs under section 57.041(1) require a “party recovering judgment”).

Here, while the instant case did not involve dismissal on forum non conveniens grounds,

the Court did decline jurisdiction for prudential reasons based on the Ameritas factors, which is

strikingly similar to dismissal on forum non conveniens grounds. Thus, the Court finds that the

Dismissal Order—in which the Court declined jurisdiction so that the parties could litigate the

issue in the Underlying Lawsuit—is not the functional equivalent of a judgment for purposes of

an award of costs under section 57.041. Accordingly, even assuming section 57.041 applies here,

the Court finds that the Marquezes are not entitled to costs—taxable or non-taxable—under that

statute.10 And, while the law is also somewhat unclear as it relates to costs under section 627.428,

the Court need not reach the issue or the intricacies of the costs aspect of section 627.428, as the

Marquezes neither requested costs under section 627.428, nor responded to Southern-Owners’

arguments concerning costs in the Reply. In Short, the Marquezes’ request for costs is denied.

10 While this determination may seem somewhat contradictory to the Court’s earlier finding as to section 627.428(1),

that section allows for attorneys’ fees recovery “[u]pon the rendition of a judgment or decree.” § 627.428, Fla. Stat.

(emphasis added).

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I. CONCLUSION

In light of the foregoing, it is hereby ORDERED as follows:

1. The Marquezes’ Amended Verified Motion for Entitlement and Award of Attorneys’

Fees and Costs [DE 86] is GRANTED IN PART and DENIED IN PART.

2. The Marquezes are entitled to attorneys’ fees in the amount of $29,300.20. This amount

reflects a 5% reduction in the Marquezes’ requested attorneys’ fees amount, and a

reduction in the paralegals’ hourly rate from $160 to $125. The Court will enter a

separate judgment for this amount.

3. The Marquezes’ request for an award of costs is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the

Southern District of Florida, this 8th day of July, 2022.

Lhd Varhamen)

WILLIAM MATTHEWMAN

United States Magistrate Judge

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