Eckhaus v. Drury Hotels Company LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MARIBETH ECKHAUS,

Plaintiff,

v. Case No: 6:20-cv-2363-GAP-LHP

DRURY HOTELS COMPANY, LLC,

Defendant

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

This cause came on for consideration without oral argument on the following

motion filed herein:

MOTION: DEFENDANT’S UNOPPOSED MOTION FOR

REASONABLE ATTORNEYS’ FEES AND COSTS

PURSUANT TO ORDER GRANTING MOTION FOR

ENTITLEMENT (Doc. No. 57)

FILED: January 19, 2023

THEREON it is RECOMMENDED that the motion be GRANTED.

I. BACKGROUND

On November 23, 2020, Plaintiff Maribeth Eckhaus instituted this action

against Defendant Drury Hotels Company, LLC in state court, alleging one count

of premises liability based on Plaintiff’s alleged slip and fall on a stairway leading

in and out of a hot tub on Defendant’s premises. Doc. No. 1-5. On December 23,

2020, Defendant removed the matter to this Court based on the diversity of

citizenship of the parties. Doc. No. 1. Defendant answered the complaint, Doc.

No. 2, and the case proceeded in the ordinary course.

On March 1, 2022, Defendant filed a motion for summary judgment. Doc.

No. 31. Upon consideration, the Court granted that motion, directed judgment to

be entered in Defendant’s favor, and ordered the case closed. Doc. No. 38.

Judgment was entered in favor of Defendant and against Plaintiff on May 5, 2022.

Doc. No. 39. Plaintiff’s request to vacate or reconsider was denied. Doc. Nos. 40,

42.

On July 26, 2022, Defendant timely-filed a motion seeking entitlement to

recover costs as the prevailing party under Fed. R. Civ. P. 54 and 28 U.S.C. § 1920,

and entitlement to attorney’s fees from February 1, 2022 onward, based on Fla. Stat.

§ 768.79, and a proposal for settlement served on Plaintiff that she did not accept.

Doc. No. 50; see also Doc. Nos. 44-45, 49. On December 27, 2022, the Court granted

the motion in part, found that Defendant was entitled to attorneys’ fees pursuant to

the proposal for settlement and Fla. Stat. § 768.29, and denied as moot the request

for taxable costs, as they were previously taxed by the Clerk. Doc. No. 56; see also

Doc. Nos. 55, 52. The Court provided Defendant 45 days to file a motion

quantifying the requested fees. Doc. No. 56; see also Local Rule 7.01(c).

On January 19, 2023, Defendant filed the above-styled motion, in which it

seeks $8,882.00 in attorneys’ fees, for work expended on this case from February 1,

2022, the date the proposal of settlement was served on Plaintiff through the date

final judgment was entered on May 5, 2022. Doc. No. 57. With the motion,

Defendant has submitted a copy of the proposal for settlement, its attorneys’ time

sheets, and an order from the Seventh Judicial Circuit in and for Volusia County,

Florida awarding fees in another case under a proposal for settlement analysis.

Doc. Nos. 57-2 through 57-6. According to the Local Rule 3.01(g) certification, the

motion is unopposed. Doc. No. 57, at 10; see also id., at 4. Moreover, Plaintiff has

not responded to the motion, and the time for doing so has expired.

The motion is now fully briefed, and has been referred to the undersigned.

For the reasons discussed below, I will respectfully recommend that the motion

(Doc No. 57) be granted.

II. LEGAL FRAMEWORK

The Court has already determined that Defendant is entitled to an award of

attorneys’ fees pursuant to the February 1, 2022 proposal for settlement, and Fla.

Stat. § 768.79. Doc. No. 56; see also Doc. No. 55. Thus, this Report only concerns

the quantification of that award.

A federal court sitting in diversity must apply the state’s substantive law

when ruling on a motion for an award of attorney’s fees, see, e.g., McMahan v. Toto,

256 F.3d 1120, 1133 (11th Cir. 2001), therefore the Court will apply Florida law to

the motion of Defendant. See also Doc. No. 57, at 4. Florida follows the federal

lodestar approach to calculating the amount of fees to be awarded. Resolution Tr.

Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1148 (11th Cir. 1993) (citing Standard

Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), and Fla. Patient’s Compensation

Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)). The undersigned will therefore analyze

the reasonableness of Defendant’s request for attorneys’ fees according to federal

law. Tartaglia v. Big Apple Consulting USA, Inc., No. 6:09-cv-591-Orl-28DAB, 2011

WL 6937465, at *5 (M.D. Fla. Nov. 22, 2011) (citing Schafler v. Fairway Park

Condominium Ass’n, 324 F. Supp. 2d 1302, 1312 (S.D. Fla. 2004), aff’d, 147 F. App’x

113 (11th Cir. 2005)), report and recommendation adopted, 2012 WL 11115 (M.D. Fla.

Jan. 3, 2012).

“The starting point in fashioning an award of attorney’s fees is to multiply

the number of hours reasonably expended by a reasonable hourly rate.” Loranger

v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam) (citing Hensley v. Echerhart,

461 U.S. 424, 433 (1983)). In applying the lodestar analysis, the party seeking fees

has the burden of establishing that the hourly rate and hours expended are

reasonable. See Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292,

1303 (11th Cir. 1988). The fee applicant must produce satisfactory evidence that

the requested rate is within the prevailing market rates and support the number of

hours worked and the rate sought. See, e.g., Hensley, 461 U.S. at 433. In addition,

“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, 836 F.2d at 1303 (citations omitted). Moreover, fee

applicants must provide “fairly definite information” concerning activities

performed by each attorney. See Mallory v. Harkness, 923 F. Supp. 1546, 1556 (S.D.

Fla. 1996) (quoting FMC Corp. v. Varonos, 892 F.2d 1308, 1317 (7th Cir. 1990)).

III. ANALYSIS

A. The Reasonableness of the Hourly Rates

Under the lodestar method, a reasonable hourly rate for an attorney is “the

prevailing market rate in the relevant legal community for similar services by

lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836

F.2d at 1299. See also Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996).

The “relevant market” is “the place where the case is filed.” Am. Civil Liberties

Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quoting Cullens v. Ga. Dep’t

of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994)). To establish that the requested

hourly rate is consistent with the prevailing market rate, the fee applicant must

produce “satisfactory evidence” that “speak[s] to rates actually billed and paid in

similar lawsuits.” Norman, 836 F.2d at 1299. This requires “more than the

affidavit of the attorney performing the work,” and generally includes evidence of

the rates charged by lawyers in similar circumstances, or opinion evidence of

reasonable rates. Id.

In determining an appropriate hourly rate, the Florida Supreme Court has

held that courts should look to the following factors (the “Rowe factors”): (1) the

skill requisite to perform the legal service properly; (2) the likelihood that

undertaking the case would preclude other employment; (3) the fee customarily

charged in the locality for similar legal services; (4) the amount involved; (5) the

time limitations imposed by the client or by the circumstances; (6) the nature and

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

reputation, and ability of the lawyers performing the services. Joyce v. Federated

Nat’l Ins. Co., 228 So. 3d 1122, 1126 (Fla. 2017) (citing Rowe, 472 So. 2d at 1150).1 The

Court may also rely on its own knowledge and experience of the prevailing market

1 There are four other Rowe factors that are considered when determining an

appropriate lodestar amount as a whole: the time and labor required, the novelty and

difficulty of the question involved, the results obtained, and whether the fee is fixed or

contingent. These factors are not considered, however, when determining the

appropriate hourly rate. See Joyce, 228 So. 3d at 1126 & n.1.

rate. See Norman, 836 F.2d at 1299-1300, 1303. However, “[t]he going rate in the

community is the most critical factor in setting the fee rate.” Taylor Newman

Cabinetry, Inc. v. Classic Soft Trim, Inc., No. 6:10-cv-1445-Orl-22DAB, 2012 WL

695670, at *5 (M.D. Fla. Feb. 14, 2012) (citing Martin v. Univ. of S. Ala., 911 F.2d 604,

610 (11th Cir. 1990)), report and recommendation adopted, 2012 WL 695843 (M.D. Fla.

Mar. 1, 2012).

Defendant retained the law firm of Wicker, Smith, O’Hara, McCoy & Ford,

P.A. to litigate this case, and seeks recovery of legal fees for the work of three (3)

attorneys from that firm at the following hourly rates:

Richards H. Ford, Esq. $225.00

Krista N. Cammack, Esq. $225.00

Adam J. Wicker, Esq.2 $190.00

Doc. No. 57, at 5-6.

Defendant has submitted no evidence in support of these requested rates

other than representations in the motion about each attorney’s years of experience.

Id. According to the motion, Attorney Ford is the managing partner of the firm,

2 Attorney Wicker did not formally appear in this case, however this is not

determinative of whether Defendant is entitled to recover fees for Attorney Wicker’s legal

work, particularly given the lack of any objection from Plaintiff. Cf. Rabco Corp. v. Steele

Plaza, LLC, No. 6:16-cv-1858-Orl-40LRH, 2019 WL 5188601, at *5 (M.D. Fla. July 29, 2019),

report and recommendation adopted, 2019 WL 5176284 (M.D. Fla. Aug. 13, 2019) (awarding

hourly rate of $150.00 to attorney who was not admitted to practice in the Middle District

of Florida, but performed legal work on the case).

has over 40 years’ experience as a practicing attorney, and customarily charges

hourly rates between $150.00 and $350.00. Id., at 6. Attorney Cammack is a

partner of the firm, has been a practicing attorney since 2013, and “claims that her

rate charges are reasonable and customary in their practices.” Id. The motion

recites that another attorney at the firm – Clay Coward – secured a fee award at a

rate of $225.00 per hour in a state court matter – although the motion wholly fails to

provide any evidence concerning Attorney Coward’s experience, or the subject

matter of the state court case. Id.; see also Doc. No. 57-2. As for Attorney Wicker,

the motion states that he is an associate with nearly three (3) years’ experience, and

that another associate with the same number of years of experience was awarded

an hourly rate of $150.00 in another state court matter (again providing no

information related to the subject matter of the state court case). Id. Other than

these conclusory and unsupported statements in the motion, Defendant provides

no evidence to support the requested hourly rates.

This paucity of evidence is insufficient to carry Defendant’s burden of

demonstrating that the requested hourly rates are reasonable. See Norman, 836

F.2d at 1299 (requiring “satisfactory evidence” to establish that an hourly rate is

reasonable that “speak[s] to rates actually billed and paid in similar lawsuits,”

which is “more than the affidavit of the attorney performing the work.”). Thus,

the undersigned relies on her own experience to determine the appropriate hourly

rates. See id. at 1303 (citations omitted) (the court “is itself an expert on the question

[of reasonable fees] 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”); see also Perez v. Sanford–

Orlando Kennel Club, Inc., et al., No. 6:05-cv-269-Orl-28KRS, 2009 WL 2500290, at *5

(M.D. Fla. Aug.14, 2009) (“It is well established that the Court may use its discretion

and expertise to determine the appropriate hourly rate to be applied to an award of

attorney’s fees.”).

Upon review, based on the undersigned’s own experience and taking into

consider the Rowe factors, and in the absence of objection by Plaintiff, the

undersigned finds that the hourly rates are reasonable for attorneys of similar

experience litigating similar types of cases, and in fact are lower than those typically

awarded in negligence and/or slip and fall cases to attorneys of similar experience

in the Middle District of Florida. See, e.g., Hajdasz v. Magic Burgers, LLC, No. 6:18-

cv-1755-Orl-22LRH, 2019 WL 3383429, at *5 (M.D. Fla. June 26, 2019), aff'd, 805 F.

App'x 884 (11th Cir. 2020) (finding rate of $500.00 per hour reasonable in slip and

fall case for attorney with 20 years’ experience); Inlet Marina Villas Condo. Ass’n, Inc.

v. United Specialty Ins. Co., No. 6:17-cv-1337-Orl-40DCI, 2019 WL 2720219, at *3-4

(M.D. Fla. June 13, 2019), report and recommendation adopted sub nom. Inlet Marina

Villas Condo. Ass’n, Inc. v. United Specialty Ins. Co., 2019 WL 2717196 (M.D. Fla. June

28, 2019) (awarding hourly rates of $450.00, $350.00, and $250.00 for attorneys

litigating insurance disputes in the Orlando Division); Diperna v. GEICO Gen. Ins.

Co., No. 6:12-cv-687-Orl-36KRS, 2016 WL 7246094, at *4 (M.D. Fla. June 27, 2016),

report and recommendation adopted by 6:12-cv-687-Orl-36-KRS, Doc. 218 (M.D. Fla.

Aug. 4, 2016) (awarding hourly rates of $550, $450, $400, and $225 for attorneys

litigating an insurance dispute); Transp. Alliance Bank, Inc. v. Sky Limits, Inc., No.

6:19-cv-53-Orl-31GJK, 2019 WL 7332775, at *2-3 (M.D. Fla. Dec. 13, 2019), report and

recommendation adopted, 2019 WL 7308872 (M.D. Fla. Dec. 30, 2019) (awarding rate

of $290.00 per hour to an associate with five years’ litigation experience); Novak v.

Safeco Ins. Co. of Ill., No. 6:15-cv-215-Orl-41DCI, 2016 WL 8849018, at *6–7 (M.D. Fla.

Nov. 18, 2016), report and recommendation adopted, 2017 WL 1552091 (M.D. Fla. May

1, 2017) (awarding rates of $225.00 and $235.00 per hour for associates). The

undersigned will therefore recommend that the Court find the requested hourly

rates reasonable.

B. The Reasonableness of the Requested Hours

The second half of the lodestar analysis requires the Court to calculate the

number of hours reasonably expended on the litigation. Counsel must exercise

proper “billing judgment” and exclude hours that are “excessive, redundant, or

otherwise unnecessary.” Hensley, 461 U.S. at 434. In demonstrating that the

requested hours are reasonable, 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, 836 F2d at 1303.

Inadequate documentation may reduce the fees requested. Hensley, 461 U.S. at 433.

The court may also reduce hours it finds excessive or unnecessary. Id.

After the moving party provides sufficient documentation to support an

attorney’s fees award, the burden shifts to the opposing party to submit objections

and proof that are specific and reasonably precise. Barnes, 168 F.3d at 428 (citing

Norman, 836 F.2d at 1301). A fee opponent’s failure to explain with specificity the

particular hours he or she views as “excessive, redundant, or otherwise

unnecessary” is generally fatal. Scelta v. Delicatessen Support Servs., Inc., 203 F.

Supp. 2d 1328, 1333 (M.D. Fla. 2002) (citing Gray v. Lockheed Aeronautical Sys. Co.,

125 F.3d 1387 (11th Cir. 1997)). Nevertheless, “[i]f fee applicants do not exercise

billing judgment, courts are obligated to do it for them, to cut the amount of hours

for which payment is sought, pruning out those that are excessive, redundant, or

otherwise unnecessary.” Barnes, 168 F.3d at 428 (internal quotation marks

omitted). When a court finds the number of hours billed to be unreasonably high,

a court has two choices: it may review each entry and deduct the unreasonable time,

or it may reduce the number of hours by an across-the-board cut. Bivins v. Wrap It

Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).

Defendant seeks recovery for a total of 41 hours of attorney time, set forth as

follows:

Richards H. Ford .70 hours

Krista N. Cammack 30.50 hours

Adam J. Wicker 9.80 hours

In support of these hours, Defendant has attached each attorney’s time sheets

(Doc. Nos. 57-3 through 57-6), and a statement in the motion that “Attorney Ford

has reviewed each task and has removed charges for tasks considered excessive,

duplicative, clerical, or otherwise unreasonable. . . .” Doc. No. 57, at 9. As

previously noted, Plaintiff has lodged no objections to any of the requested hours.

And upon review of the attached time sheets, I find the number of hours expended

to be reasonable, and will recommend to the Court that these hours are reasonable

and appropriate under the lodestar analysis.

C. Final Lodestar Calculation

Applying the reasonable hourly rates to the reasonable hours requested

results in the following total amounts:

Richards H. Ford $225.00/hour .70 hours $157.50

Krista N. Cammack $225.00/hour 30.5 hours $6,862.50

Adam J. Wicker $190.00/hour 9.8 hours $1,862.00

Total Lodestar: $8,882.00

IV. RECOMMENDATION

For the reasons discussed in this report, the undersigned RESPECTFULLY

RECOMMENDS that Defendant’s Unopposed Motion for Reasonable Attorneys’

Fees and Costs Pursuant to Order Granting Motion for Entitlement (Doc. No. 57)

be GRANTED, and that Defendant be awarded attorneys’ fees in the amount of

$8,882.00.

NOTICE TO PARTIES

A party has fourteen days from the date the Report and Recommendation is

served to serve and file written objections to the Report and Recommendation’s

factual findings and legal conclusions. Failure to serve written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. 11th

Cir. R. 3-1.

Recommended in Orlando, Florida on March 27, 2023.

LESLIE NOFFMAN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy