Comercio y Servicios de Transporte Privado PBA S.A. de C.V. v. RDI, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA □

TAMPA DIVISION

COMERCIO Y SERVICIOS

DE TRANSPORTE PRIVADO PBA S.A.

De C.V., a Mexican corporation,

Plaintiff,

v. CASE NO. 8:17-cv-1038-TGW

RDI, LLC, a Florida limited liability

Company, and ROBERT

DINICOLANTONIO, individually,

Defendants.

ORDER

THIS CAUSE came on for consideration upon the Plaintiff's

Motion for Award of Attorneys’ Fees and Costs (Doc. 150) and Plaintiff's

Motion for Entry of Final Judgment, Including Costs and Attorneys’ Fees

(Doc. 149) against defendant RDI. RDI did not file a response to either motion.

The plaintiff, as the prevailing party on its breach of contract

claim, is entitled to an award of its reasonable attorneys’ fees, costs and

expenses pursuant to an attorney fee provision in the contract. Accordingly,

the plaintiff will be awarded attorneys’ fees of $139,466.40, expenses of

$29,832.76 and $3,835.89 in billable costs. Accordingly, the original

. Judgment of $1,440,000.00 will be amended to $1,613,135.05. -

I.

Plaintiff, Comercio Y Servicios De Transporte Privado PBA

S.A, de C.V. (PBA), owns a Gulfstream IV SP Aircraft (s/n 1346, Tail

#N273SF) (aircraft). Defendant RDI, LLC (RDI) is a company that

refurbishes and customizes aircrafts. .

On November 30, 2016, the parties contracted for RDI to

refurbish or replace many parts of the aircraft’s interior at the cost of over

one million dollars (see Doc. 77-1). The plaintiff alleged that the defendant

did not refurbish certain items it was contracted to do, and that other work

was substandard, not completed properly and/or did not comply with federal

regulations (see Doc. 77, pp. 3-4; Doc. 141, p. 10).!

In May 2017, the plaintiff filed this lawsuit (Doc. 1). The

plaintiff asserted against RDI claims of breach of contract, negligence and

fraud (Doc. 77).?: The defendant counterclaimed that the plaintiff breached

the contract because it refused to pay the balance due on the contract (Doc.

79).

After a four-day jury trial, the jury found in favor of the plaintiff

on its breach of contract claim and awarded the plaintiff damages of

1 Page numbers correspond to the numbers assigned by the CM/ECF system.

2 The court dismissed the fraud claim.

$1,440,000.00 (Doc. 143). Judgment was entered accordingly (Doc. 144).

Thereafter, plaintiff's counsel filed on the plaintiff's behalf a

Bill of Costs (Doc. 148); Motion for Entry of Final Judgment, Including

_ Costs and Attorneys’ Fees (Docs. 149) and Motion for Award of Attorneys’

_ Fees and Costs and Supporting Memorandum (Doc. 150).

The plaintiff seeks an award of $172,760.50 in attomeys’ fees

for work performed by the law firms of Perlman, Bajandas, Yevoli &

Albright, P.L., and Jimenez, Hart, Mazzitelli, LLP (Doc. 149, p. 2).

“Counsel agreed to represent Plaintiff for a minimum flat rate of $75,000,

and contingent on prevailing, to recover their additional fees pursuant to the

fee-shifting provision contained in the underlying contract” (Doc. 150, p. 5).

The fees encompass work from October 2018 through trial. Plaintiff's

previous counsel, who prosecuted the case from its inception until September

2018, has not filed with the court a request for attorneys’ fees. The plaintiff

also requests an award of costs and expenses totaling $33,668.65 (Docs. 148,

149, p. 2). The defendant did not respond to this motion.

The court has reviewed the plaintiff's time entries and

submissions. As discussed below, a reasonable attorneys’ fees award is

achieved by an across-the-board reduction of 20% of the request. The

reduction accounts for: (1) hourly attorney rates that exceed the market rates

.

in Tampa; (2) block billing; (3) failure to show the distinct contribution of

multiple attorneys doing the same tasks and (4) non-compensable attorney

time. As indicated, the defendant failed to file an opposition memorandum,

$0 it obviously did not identify any additional proper reductions.

Il. .

The plaintiff seeks reimbursement of its attorneys’ fees and

expenses pursuant to a provision in the contract which states (Doc. 77-1, p.

7):

In connection with any action or proceeding to

enforce either party’s rights (whether in contract,

or otherwise) and/or to collect amounts due to a

party in connection with this agreement, the

prevailing party, as determined by the order of the

court, shall be entitled to have and recover

reasonable attorney’s fees, costs and expenses

incurred in connection therewith.

The plaintiff is unquestionably the prevailing party in this case and,

therefore, it is entitled to an award of reasonable attorneys’ fees under the

contract.

A reasonable attorneys’ fee is properly calculated by

multiplying the number of hours reasonably expended on the litigation times

a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888 (1984)3 In

3The contract does not specify a choice of law provision. The plaintiff follows the —

lodestar method, which is appropriate considering that the contract was drafted by a

this calculation, the court should exclude hours that were not reasonably

expended. Hensley V. Eckerhart, 461 U.S. 424, 434 (1983). This lodestar

may then be adjusted upward or downward based on other considerations.

Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). However, there is

a strong presumption that the lodestar reflects a reasonable statutory fee.

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). The plaintiff

does not request an increase of the lodestar.

The fee applicant bears the burden of presenting satisfactory

evidence to establish that the requested rate is in accord with the prevailing

market rate and that the hours are reasonable. Norman v. Housing Authority

of City of Montgomery, 836 F.2d 1292, 1303 ad Ith Cir. 1988).

Furthermore, “[o]bjections and proof from fee

Opponents. ..must be specific and reasonably recise.” ACLU of Georgia v.

Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (citation omitted). Since the

defendant did not file an opposition memorandum, it is assumed that it does

not oppose an award of attorneys’ fees, expenses or costs. See Local Rule

3.01(b) (requiring a party opposing a motion to file within 14 days after

service of the motion a response that includes a memorandum of legal

authority in opposition to the request). However, even when a fee application

Florida company, and Florida adopted the federal lodestar approach.

5.

is unopposed, it remains the court's duty to ensure that such an award is

reasonable. See Hensley v. Eckerhart, supra, 461 U.S. at 433-34 (1983); □

Perez v. Carey International, 373 Fed. Appx. 907 (11th Cir. 2010). □

A. Hourly Rates

The first step in the computation of the lodestar is determining

the reasonable hourly rate. The prevailing market rate for similar services

by similarly trained and experienced lawyers in the relevant legal community

is the established basis for determining a reasonable hourly rate. Duckworth

v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996).

. “The general rule is that the relevant market for purposes of □

determining the reasonable hourly rate for an attorney’s services is the place

where the case is filed.”” American Civil Liberties Union of Georgia v.

Barnes, 168 F.3d 423, 437 (11th Cir. 1999). Services of paralegals and law

clerks are also compensable at market rates. Missouri v. Jenkins by Agyei,

491 US. 274, 288-89 (1989). “If a fee applicant desires to recover the non-

local rates of an attorney who is not from the place in which the case was

filed, he must show a lack of attorneys practicing in that place who are

willing and able to handle [its] claims.” American Civil Liberties Union of

Georgia v. Barnes, supra, 168 F.3d at 437.

The party seeking fees bears the burden of establishing the

market rate and should present the court with “specific and detailed evidence

from which it can determine the reasonableness of the proposed rate.”

Norman v. Housing Authority of City of Montgomery, supra, 836 F.2d at

1303. With respect to rates, an applicant may meet this burden by producing

either direct evidence of rates charged under similar circumstances, or :

opinion evidence of reasonable rates. Id. at 1299. Satisfactory evidence is

therefore “more than the affidavit of the attorney performing the work.”

Loranger v. Stierheim, supra, 10 F.3d at 781.

Furthermore, “[t]he court ... is itself an expert on the question

[of attorneys’ fees] and may consider its own knowledge and experience

concerning reasonable and proper fees.” Norman v. Housing Authority of

City of Montgomery, supra, 836 F.2d at 1303 (citation omitted).

The plaintiet seeks compensation for the services of three

lawyers and one paralegal from the law firm of Perlman, Bajandas, Yevoli

& Albright, P.L., and two attorneys from the law firm of Jimenez, Hart &

Mazzitelli L.L.P. (Doc. 150-1, pp. 2-36). D. Porpoise Evans of Perlman,

Bajandas, Yevoli.& Albright, P.L., was lead counsel. Evans states that he

has over “15 years’ experience litigating commercial disputes in both federal

and state court as well as being called upon to represent clients before

administrative agencies” (Doc. 150, p. 4). Maria Zucker “served as the

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senior paralegal in this case and has over 20 years of experience” (id.). Evans

“customarily bills at a rate of $395-$450/hour” and requests compensation

at an hourly rate of $425 (id., pp. 4-5). Evans does not explain why an hourly

rate at the midpoint of his customary range is warranted. Zucker’s hourly

rate is $120.

Attorneys Carlos Jimenez and Gabriel Mazzitelli from the law

firm of Jimenez, Hart & Mazzitelli also represented the plaintiff in this case.

Jimenez and Mazzitelli “have been licensed [to practice] since 2012 and

2010, respectively, and also dedicate a significant portion of their practice to

litigating commercial disputes” (id., p. 4). They each request an hourly rate

of $425 (id., p. 5).

Evans asserts in his verified motion that “[t]hese rates sought

by Plaintiff's counsel are in line with similar awards in this judicial district.

The rates set forth above are in line with the prevailing market rates for

counsel with the abilities, experience, qualifications, skill and reputation of

Plaintiff's attorneys” (id.). .

Other than Evans’ conclusory statement, the plaintiff has not

submitted any evidence supporting the reasonableness of these rates. This is

patently insufficient. Thus, satisfactory evidence of a reasonable hourly rate

is “more than the-affidavit of the attorney performing the work.” Loranger

. .

v. Stierheim, supra, 10 F.3d at 781. Thus, “satisfactory evidence necessarily

must speak to ratés actually billed and paid in similar lawsuits.” Martinez v.

Hernando County Sheriff's Office, 579 Fed. Appx. 710, 713 (1th Cir. 2014).

Moreover, the persuasiveness of Evan’s averment is diminished by the fact

that the attorneys’ law firms are located not in this area, but in Miami. See

American Civil Liberties Union of Georgia v. Barnes, supra, 168 F.3d at 437

(The rate of attomey’s fees is that of the place where the case is filed.).

While the hourly rate of $425 may be acceptable for this type

of case in South Florida, where the attorneys are located, South Florida’s

hourly rates are generally higher than those in the Tampa area. Furthermore,

the plaintiff did not show “a lack of attorneys practicing in [Tampa] who

[we]re willing and able to handle [its] claims.” Id.

Moreover, based on my experience, the requested hourly rates

are on the high side for a commercial breach of contract case in Tampa. See

Norman v. Housing Authority of the City of Montgomery, supra, 836 F.2d

at 1303 (the court is itself an expert); see also Brancato v. Cotrone, No. 5:18-

CV-368-OC-30PRL, 2019 WL 6051432 at *2 (MD. Fla. Nov. 15, 2019) (“A

rate of $425 an hour is substantially higher than rates typically awarded in

the Middle District of Florida.”). As indicated, Evans does not explain why

an hourly rate at the midpoint of his customary range is warranted, and only

the bare facts are given regarding Jimenez’s and Mazzatelli’s experience.‘

Therefore, there is no basis to pay above market rates. In sum, the plaintiff

has failed to satisfy its burden of providing evidence that would support the

claimed rates.

On the other hand, the defendant does not challenge this request

and, thus, has not argued what is a reasonable hourly rate. Therefore, as

discussed infra, pp. 15-16, the excessive rates will be accounted for in an

across-the-board 20% reduction of the attorneys’ fees.

B. Reasonableness of the Number of Hours Expended

The second step in the lodestar analysis is to determine what

hours were reasonably expended on the litigation. In calculating this

amount, the court should exclude excessive, unnecessary and redundant

hours, and time spent litigating discrete and unsuccessful claims. Duckworth

v. Whisenant, supra, 97 F.3d at 1397. The plaintiff seeks compensation for

439 hours of work from October 2018 through the trial. Evans states that the

core tasks were as follows (Doc. 150, p. 6):

‘Plaintiff's counsel asserts in a conclusory manner that the court should consider

“t]he undersigned counsel was precluded from taking or working in other cases in an

effort to dedicate a significant amount of time to this action” (Doc. 150, p. 6). Counsel

offered no explanation or evidence to support that claim. Therefore, it is rejected. See

George v. GTE Directories Corp., 114 F. Supp. 2d 1281; 1288 (M.D. Fla. 2000).

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reviewing documents, writing letters, engaging in

discovery, preparing fact and expert witnesses (in

English and Spanish), discussing the case,

conducting research, writing motions or briefs, □

attending judicial conferences and hearings, -

conferences with opposing counsel and with

clients...and conducting the trial itself.

As indicated, “[t]he fee applicant bears the burden of ...

documenting the appropriate hours....” Norman v. Housing Authority of

City of Montgomery, supra, 836 F.2d at 1303. With respect to hours, if an

applicant’s documentation is inadequate, the district court may reduce the

award accordingly. Hensley v. Eckerhart, supra, 461 U.S. at 433. Thus, “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.” Norman v. Housing Authority of

City of Montgomery, supra, 836 F.2d at 1303. Furthermore, excessive,

redundant, or otherwise unnecessary hours should be excluded from the

amount claimed. Id. at 1301. In other words, fee applicants must use billing

judgment. Id. “[W]here the time ... claimed seem[s] expanded or there is a

lack of documentation or testimonial support the court may make the award □

on its own experience.” Id. at 1303.

Similarly, “[o]bjections and proof from fee opponents

ll.

concerming hours that should be excluded must be specific and reasonably □

precise.” American Civil Liberties Union of Georgia v. Barnes, supra, 168

F.3d at 428, quoting Norman v. Housing Authority of City of Montgomery,

supra, 836 F.2d at 1301. Inall events, “the district court still must determine

whether time was reasonably expended, and if it was not, that time should

be excluded from the fee calculation.” Perez v. Carey International, Inc.,

supra, 373 Fed. Appx. at 911. Thus, “the Court must act...as a gatekeeper

of reasonableness without the benefit of an adversarial party.” Rodriguez v.

AMD Group of South Florida, Inc., 623 F. Supp. 2d 1352, 1354 (S.D. Fla.

2007).

Plaintiffs counsel submitted to the court their time records (see

Doc. 150-1). However, many of the entries are sparse and conclusory, which

hinders the court’s ability to assess the reasonableness of the time spent on

tasks. For example, multiple entries are simply labeled as “trial prep” (for

as long as 8 and 12 hours in a day), without any indication of what tasks were

done during those hours (see id., pp. 22, 3 1-32), Furthermore, counsel billed

12 hours on each of three of the trial days (see id., pp. 24, 32-33), but fail to

identify what they did outside trial, as court was not in session anywhere

near that amount of time (see, e.g., Doc. 138 (five hours); Doc. 140 (less than

12

three hours)).5

This is a type of impermissible block billing, but without the

benefit of identifying the tasks within those time periods. Ceres

Environmental Services, Inc. v. Colonel McCrary Trucking, LLC, 476 Fed.

Appx. 198, 203 (11th Cir. 2012) (“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.). Thus, the “imprecision of the

billing records submitted by the plaintiff[] makes it difficult, if not

impossible, to calculate with any precision the number of hours an attorney

devoted to a particular task in this litigation.” American Civil Liberties

Union of Georgia v. Barnes, supra, 168 F.3d at 429; see also Dial HD, Inc.

v. ClearOne Communications, 536 Fed. Appx. 927, 931 (11th Cir. 2013).

Here, the circumstance is more problematic because counsel did not even

identify the tasks performed during that time.

This detail is required not only by Norman, but it is essential in

this case because there are three attorneys billing at an hourly rate of $425

for tasks with the same descriptions. “There is nothing inherently

unreasonable about a client having multiple attorneys, and they may all be

‘The imprecision of the time records is also exemplified by two of Evans’ time

entries on January 13, 2019, in which it appears that Evans erroneously claimed a total of

25.8 hours related to the aircraft inspection (see Doc. 150-1, pp. 13-14).

13 .

compensated if they are not unreasonably doing the same work and are being

compensated for the distinct contribution of each lawyer.” Norman v.

Housing Authority of City of Montgomery, supra, 836 F.2d at 1302.

However, it is the-fee applicant’s burden to show that the time spent by those

attorneys reflects the distinct contribution of each lawyer to the case.

American Civil Liberties Union of Georgia v. Barnes, supra, 168 F.3d at 432.

The plaintiff did not satisfy that burden. Neither the billing records nor other

submissions shed any light on the distinct contribution of each attorney. For

example, there is no discussion of why it was necessary for three attorneys

to travel to Canada for the aircraft inspection or that three attorneys (from

two law firms) were reasonably required to prosecute this trial.

Another example of a lack of billing judgment is counsel’s □

failure to eliminate travel time between Miami and Tampa (see Doc. 150-1,

pp. 2, 24, 27, 33). Counsel failed to show a lack of counsel in the Tampa

area capable of handling this case and, therefore, they may not recover fees

for attorney travel time to attend court proceedings. See Martinez v.

Hernando County Sheriff's Office, supra, 579 Fed. Appx. at 714 (excluding

out-of-town counsel’s travel time to court proceedings); Johnson v.

University College of University of Alabama in Birmingham, 706 F.2d

1205, 1208 (11th Cir. 1983). As stated in Cruz v. Arnold, No. 10-23048-

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CIV, 2012 WL 13075614 at *8 (S.D. Fla. Feb. 13, 2012):

[Al]though certainly appropriate for the clients’

benefit, [it] is not appropriate to include in the fee

application against the non-prevailing party

because local counsel would have made extended

travel time unnecessary. As the record does not

support as essential the presence or use of out-of-

area counsel in the case, travel time cannot be

approved.

In sum, counsel failed to adequately document the time spent

on tasks which raises concerns of duplication and/or excessive time that is

not chargeable to the opposing party. Furthermore, there are instances in

which they did not exercise billing judgment. And, as indicated, counsel’s

hourly rates are too high (see supra, pp. 8-10). Therefore, a substantial

reduction of attorney hours is necessary in order to attain a reasonable

attorneys’ fees award.

_ “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).

Although each time entry has been reviewed, a general reduction of the

number of hours is appropriate under the circumstances of this case. See

Ceres Environmental Services, Inc. v. Colonel McCrary Trucking, LLC,

supra, 476 Fed. Appx. at 203. Thus, “[c]Jourts [particularly] have...approved

15

across-the-board reductions in block-billed hours to offset the effects of

block billing.” Id.; see, e.g., Dial HD, Inc. v. ClearOne Communications,

supra, 536 Fed. Appx. at 931 (approving a 25%’ across-the-board reduction

to the fees because block billing made “it difficult to ascertain how much

time was spent on each task”). It is also supported by the Supreme Court’s

statement that fee disputes should not result in second major litigation.

Hensley v. Eckerhart, supra, 461 U.S. at 437.

In this regard, J find that an across-the-board cut of 20% of the

requested fees is clearly warranted. See Dial HD, Inc. v. ClearOne

Communications, supra, 536 Fed. Appx. at 931; see also Fox v. Vice, 563

U.S. 826, 828 (2011) (“[TJrial courts may take into account their overall

sense of a suit and may use estimates in calculating and allocating an

attorney’s time.”). Although arguably the defendant may have been able to

show a further reduction was warranted, it failed to file an opposition

memorandum.

Counsel’s time records show the total attorneys’ fees for the

Perlman firm was $82,830.50 (Doc. 150-2, p. 26)® and the Jimenez firm’s

charges were $88,740.00 (id., p. 33), for a total of $171,570.50.

Additionally, Evans stated that he spent 6.5 hours “researching, calculating

‘The motion states $84,020.50 (Doc. 149, p. 2, 7).

16

and preparing this Motion for Award of Attorneys’ Fees and Costs” that was

not included on the time sheets (Doc. 150, p. 6). That sum is $2,762.50.

Therefore, the total attorneys’ fees request substantiated by evidence is

$174,333.00. After the 20% reduction, a reasonable attorneys’ fees awardis

$139,466.40.

II.

A. The plaintiff, under the rubric of “Costs,” requests

reimbursement of expenses totaling $29,832.76 (see Doc. 150-2, pp. 2-4).

These expenses comprise transportation, lodging and meals incurred in the

prosecution of this lawsuit (see id.). The plaintiff attached copies of receipts

that substantiate these expenses (id, pp. 5-76). .

As the plaintiff identifies, the contract specifies that the

prevailing party is entitled to recover its expenses incurred in connection

with a lawsuit to enforce the contract (see Doc. 1-1), The defendant does

not dispute entitlement to, or the amount of, any of these expenses.

Therefore, in accordance with the contract, the plaintiff will be awarded

expenses of $29,832.76. .

B. The plaintiff also seeks reimbursement for taxable costs of

$3,835.89 pursuant to Rule 54(d)(1), F.R.Civ.P. (Doc. 148). Rule 54(d)(1)

affords the prevailing party recovery of costs identified in 28 U.S.C. 1920.

17

See Crawford Fitting Co. v. J. T. Gibbons, Inc.; 482 U.S. 437, 442 (1987).

The plaintiff itemized in its Bill of Costs witness attendance fees ($120),

service of process ($75), transcripts ($1,331.60), photocopying necessarily

obtained for use in the case ($637.29) and costs of interpreters ($1,672).

Each of these items is compensable under 28 U.S.C. 1920. Furthermore, the

plaintiff has submitted copies of receipts showing that it incurred these costs

(Doc. 148, Comp. Ex. 1). The defendant has not filed any objection.

Therefore, costs of $3,835.89 will be assessed against the defendant.

Although the plaintiff did not include this sum in its proposed final judgment,

it will be added to the amended judgment.

IV.

For the foregoing reasons, the $1,440,000.00 judgment will be

amended to include reasonable attorneys’ fees of $139,466.40; expenses

totaling $29,832.76 and costs of $3,835.89. This amounts to a final judgment

of $1,613,135.05.

It is, therefore, upon consideration,

ORDERED:

1. That the Plaintiff's Motion for Award of Attorneys’ Fees and

Costs (Doc. 150) i hereby GRANTED to the extent that the plaintiff is

awarded $139,466.40 in attorneys’ fees, $29,832.76 in expenses and costs □□

18

of $3,835.89.

2. That the Plaintiff's Motion for Entry of Final Judgment,

Including Costs and Attorneys’ Fees (Doc. 149) be, and the same is hereby,

GRANTED to the extent that the Clerk is directed to amend the judgment

in this case in favor of the plaintiff and against defendant RDI in the amount □

of $1,613,135.05.

DONE and ORDERED at Tampa, Florida, this 17 ay of

January, 2020.

□ THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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