# AKAI Custom Guns, LLC v. KKM Precision, Inc.

> District Court, S.D. Florida · August 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11145846

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11145846

## How later opinions describe it (automated extraction)

- affirming award of fees for inextricably intertwined claims based on “the same core set of facts” and alternative, but related, legal theories
- noting that FDUTPA allows for an award of taxable and nontaxable costs

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 20-CV-61469-SMITH/VALLE
AKAI CUSTOM GUNS, LLC, et al.,
Plaintiffs,
v.
KKM PRECISION, INC., et al.,

Defendants.
/
REPORT AND RECOMMENDATION TO DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant KKM Precision, Inc.’s (“KKM”)
Renewed Verified Motion for Attorneys’ Fees and Non-Taxable Expenses (ECF No. 337) (the
“Motion”).1 United States District Judge Rodney Smith has referred all motions for attorneys’
fees and costs to the undersigned for appropriate resolution. (ECF No. 36 at 2).
Having reviewed the Motion, Plaintiffs’ Response (ECF No. 345), KKM’s Reply (ECF
No. 346), KKM’s Notice of Previously Awarded Fees and Costs (ECF No. 295), and being
otherwise fully advised on the matter, the undersigned recommends that the Motion be
GRANTED IN PART AND DENIED IN PART as set forth below. More specifically, KKM
should be awarded $428,781.46 in attorneys’ fees and $65,573.35 in costs.

1 KKM’s initial motion for fees and costs (ECF No. 281) was denied without prejudice, pending
the District Judge’s ruling on Plaintiffs Akai Custom Gun, LLC (“Akai”) and Shay Horowitz’s
(“Horowitz”) (together, “Plaintiffs”) Rule 60 Motion for Relief from Judgment (ECF No. 297).
On January 28, 2025, the District Judge denied Plaintiffs’ Rule 60 Motion. (ECF No. 335). The
instant Motion followed.
I. BACKGROUND
This case involves a dispute between Plaintiffs, a manufacturer and retailer of custom
pistols (Akai) and its sole proprietor (Horowitz), against KKM (a gun parts manufacturer) and co-
Defendant Shooters Connection, Inc. (“SCI”) (a parts retailer) regarding the quality/strength of the
steel used in certain pistol barrels manufactured by KKM, which Plaintiffs purchased both directly

from KKM and through SCI. (ECF No. 208 at 2-3). The factual background and procedural
history of the case is set forth in the District Judge’s Order on Cross-Motions for Summary
Judgment (the “Summary Judgment Order”), which is incorporated by reference. See (ECF No.
208); see generally (ECF No. 1-1 at 111-534) (the Amended Complaint) (“Am. Compl.”).
In July 2020, Plaintiffs filed a 29-count Amended Complaint against KKM and SCI. See
generally Am. Compl. As to KKM, the Amended Complaint alleged: (i) misleading advertising
(Count 1) (Akai against KKM); (ii) violation of Florida’s Deceptive and Unfair Trade Practices
Act (“FDUTPA”) (Count 3) (Akai against KKM and SCI); (iii) fraudulent inducement (Count 4)
(Akai against KKM and SCI);2 (iv) strict liability (Count 5) (Akai and Horowitz against KKM and
SCI);3 (v) breach of express warranties (Count 6) (Akai against KKM and SCI); (vi) breach of

implied warranty of merchantability (Count 7) (Akai against KKM and SCI); (vii) breach of
implied warranty of fitness for a particular purpose (Count 8) (Akai against KKM and SCI);
(viii) revocation of acceptance (Count 9) (Akai against KKM and SCI); (ix) defamation (Count
10) (Akai and Horowitz against KKM); (x) defamation per se (Count 11) (Akai and Horowitz

2 Although Counts 1, 3, and 4 in the Amended Complaint list Akai and Horowitz as Plaintiffs on
these claims, the parties agree that these counts relate solely to Akai. (ECF Nos. 337 at 5, 345 at
2); see (ECF No. 113-2 at 146-49) (8/17/22 Horowitz deposition); see also (ECF No. 56 at 17)
(District Judge’s Order dismissing Horowitz from the fraudulent inducement claim for lack of
standing but allowing Akai to proceed with the claim).
3 The Court dismissed with prejudice Count 5 (alleging strict liability). See (ECF No. 56 at 17-
18); see also (ECF Nos. 46, 49, 50).
against KKM); (xi) defamation by implication (Count 12) (Akai and Horowitz against KKM);
(xii) commercial disparagement (Count 22) (Akai against KKM); and (xiii) civil conspiracy to
commit commercial disparagement (Count 26) (Akai against KMM). (ECF No. 1-1 at 134-37,
143-51, 151-74, 340-45, 401-08).
On December 23, 2022, KKM served Akai and Horowitz with Proposals for Settlement,

pursuant to Fla. Stat. § 768.79. See (ECF No. 337 at 24-29). In the Proposals, KKM offered to
pay each Plaintiff $25,000 in settlement of all claims. Id. Plaintiffs, however, did not accept the
offer and proceeded with the litigation. Thereafter, on December 6, 2023, the Court granted partial
summary judgment in favor of KKM on several counts, leaving for trial only the four claims
alleged in Count 1 (misleading advertising), Count 3 (FDUTPA), Count 4 (fraudulent inducement),
and Count 12 (defamation by implication). (ECF No. 208 at 10-11, 14-15, 21-25). On December
22, 2023, after a ten-day trial, the jury returned a verdict in favor of KKM on all four counts. See
(ECF No. 236 at 1-10). In January 2024, the Court entered final judgment on the verdict, finding
that KKM was “the prevailing party for all claims asserted against it by Plaintiffs.” (ECF No. 244

at 2). Subsequently, Plaintiffs filed their Rule 60 Motion for Relief from Judgment, which the
Court denied. See (ECF Nos. 297, 335). The instant Motion followed. See generally (ECF No.
337).
II. THE MOTION FOR FEES AND NONTAXABLE COSTS
A. KKM’s Motion
KKM seeks recovery of $428,781.46 in fees and $78,068.35 in nontaxable costs against
Akai and Horowitz for all claims.4 See (ECF Nos. 337 at 17, 18, 20, 346 at 5); see also (ECF

4 Although in the Motion, KKM initially requests $441,880.50 in fees, KKM concedes in its Reply
that a reduction is appropriate and reduced its fees to $428,781.46 ($271,051.50 + $157,729.96).
Compare (ECF No. 337 at 17, 20), with (ECF No. 346 at 5). The undersigned accepts KKM’s
No. 349) (Plaintiffs’ and KKM’s Notice of Satisfaction as to taxable costs); (ECF No. 354)
(Plaintiffs’ and SCI’s Stipulation of Dismissal with prejudice, with agreement to bear their own
fees and costs incurred in this action). KKM asserts entitlement to fees on several grounds.5 First,
KKM argues that it is entitled to statutory fees based on its Proposals for Settlement, pursuant to
Fla. Stat. § 768.79.6 (ECF No. 337 at 2, 24-29). Second, KKM seeks fees as the prevailing party

on Count 1 (misleading advertising), pursuant to the fee provision in Fla. Stat. § 817.41(6).7 Id. at
3-5. Relatedly, KKM argues that “the fees and costs incurred in defending Count [1] are
inextricably intertwined with the fees and costs incurred in defending the other claims asserted”
against KKM so that it is “entitled to [an] award of all of its fees and costs” under § 817.41. Id. at
2 (emphasis added). Lastly, KKM argues that it is entitled to a discretionary award of fees on

reduced fee amount as the relevant request.
5 The Motion divides the requested fees and costs into three litigation periods: (i) the period from
the filing of the initial complaint to the serving of the Proposals for Settlement (April 30, 2020 to
December 22, 2023); (ii) the period within the scope of the Proposals for Settlement, from the date
of service of the Proposals through the jury’s verdict (December 23, 2022 to December 31, 2023);
and (iii) the period related to Plaintiffs’ Rule 60 post-judgment motion (January 1, 2024 to
December 31, 2024). (ECF No. 337 at 2-3, 10, 11, 16). Because the undersigned finds that fees
should be awarded for the entire litigation period (as the claims are all inextricably intertwined),
KKM’s suggested time periods are irrelevant to the undersigned’s determination.
6 Pursuant to § 768.79(1), “[i]n any civil action for damages . . . if a defendant files an offer of
judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to
recover costs and attorney’s fees incurred by her or him . . . from the date of filing of the offer if
the judgment is one of no liability.” Plaintiffs concede that KKM is entitled to recover its fees for
the period covered by the Proposals for Settlement, subject to the fees being apportioned between
Akai and Horowitz based on their respective claims. (ECF Nos. 337 at 4-5 n.4, 345 at 2, 5).
Accordingly, and without further discussion, the undersigned finds that KKM is entitled to recover
all its reasonable attorneys’ fees and costs incurred from December 23, 2022 (the date the
Proposals were served) to December 31, 2023 (through the jury’s verdict). (ECF No. 337 at 4,
10).
7 Fla. Stat. § 817.41(6) provides that “[a]ny person prevailing in a civil action of this section shall
be awarded costs, including reasonable attorney’s fees . . . . This provision is in addition to any
other remedies prescribed by law.”
Count 3 (FDUTPA), pursuant to Fla. Stat. § 505.21058 and the factors set forth in Humane Society
of Broward County, Inc. v. Florida Humane Society, 951 So. 2d 966, 968 (Fla. 4th DCA 2007)
(known as the Humane Society factors). (ECF No. 337 at 5-8).
B. Plaintiff’s Response
In response, Plaintiffs primarily challenge the allocation of fees and costs between the two

Plaintiffs. More specifically, Plaintiffs argue that Horowitz should not be held liable for fees and
nontaxable costs attributable to counts pursued solely by Akai (and vice versa). See (ECF No. 345
at 1-2). For example, Horowitz argues that he alleged only Counts 10, 11, and 12 (defamation
counts) against KKM, none of which have statutory fee provisions authorizing an award of fees.
Id. at 2. Additionally, Horowitz argues that: (i) because he did not bring Count 1 (misleading
advertising) or Count 3 (FDUTPA), he is statutorily not liable for attorneys’ fees and nontaxable
costs related to these counts or any other counts that KKM asserts are “inextricably intertwined”
with Counts 1 and 3; and (ii) fees and costs within the scope of the Proposals for Settlement,
although recoverable, should similarly be allocated by counts between the two Plaintiffs. Id.

Lastly, Plaintiffs argue that although an award of fees under FDUTPA is discretionary, fees are
unwarranted upon application of the Humane Society factors.9 Id. at 10-15.

8 Fla. Stat. § 505.2105 provides that “[i]n any civil action resulting from an act or practice involving
a violation of this part, . . . the prevailing party, after judgment in the trial court and exhaustion of
all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the
nonprevailing party.”
9 In their Response, Plaintiffs argue that the Court should deny the Motion and/or award sanctions
to Plaintiffs based on KKM’s purported: (i) bad faith litigation conduct; and (ii) failure to serve
Plaintiffs with a complete draft of the Motion prior to filing the Motion, in violation of Local Rule
7.3. (ECF No. 345 at 16, 18-20); see also (ECF No. 346 at 7-10) (KKM’s response to these
arguments). These arguments are unpersuasive and Plaintiffs’ request for sanctions should be
denied. First, the Court previously considered and denied Plaintiffs’ requests for monetary
sanctions. See (ECF Nos. 163, 174). In addition, Plaintiffs were not prejudiced by KKM’s failure
to attach attorney Barnett’s Supplemental Affidavit to the draft Motion. See Hard Rock Cafe Int’l
USA, Inc. v. RockStar Hotels, Inc., No. 17-CV-62013, 2019 WL 3412155, at *2 n.4 (S.D. Fla. May
III. ENTITLEMENT TO ATTORNEYS’ FEES AND NONTAXABLE COSTS
A. General Rule
Under the “American Rule,” prevailing litigants are generally not entitled to an award of
attorneys’ fees, unless provided for by statute or contract. See, e.g., In re Martinez, 416 F.3d

1286, 1288 (11th Cir. 2005) (prevailing litigants are generally not entitled to an award of
attorneys’ fees unless provided by statute or contract); Hampton’s Est. v. Fairchild-Fla. Const.
Co., 341 So. 2d 759, 761 (Fla. 1976) (same). Moreover, the “fee applicant bears the burden of
establishing entitlement and documenting the appropriate hours and hourly rates.” ACLU of Ga.
v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting Norman v. Hous. Auth. of Montgomery,
836 F.2d 1292, 1303 (11th Cir. 1988)). Here, because KKM is the prevailing party on summary
judgment and at trial, determination of KKM’s entitlement to fees and nontaxable costs depends
on: (i) the nature of the claims, including the statutory basis and/or whether the claims are
inextricably intertwined; (ii) the relevant litigation periods within the scope of the Proposals for

Settlement; (iii) the reasonableness of KKM’s claimed fees; and (iv) whether fees should be
allocated between the individual Plaintiff Horowitz and the corporate Plaintiff Akai.
For the reasons discussed below, the undersigned finds that KKM is entitled to its
reasonable fees and nontaxable costs on Counts 1 (misleading advertising) and 3 (FDUTPA) from
the filing of the Amended Complaint through the Court’s denial of Plaintiffs’ Rule 60 post-

20, 2019), report and recommendation adopted, 2019 WL 3408888 (S.D. Fla. June 4, 2019)
(finding defendant’s failure to provide plaintiffs a draft of a fee motion did not preclude review of
the motion on its merits “because it is within the court’s discretion whether to require strict
compliance with Local Rule 7.3”); Alexsam, Inc. v. WildCard Sys., Inc., No. 15-CV-61736, 2019
WL 2245420, at *4 n.5 (S.D. Fla. Feb. 13, 2019), report and recommendation adopted, 2019 WL
1010241 (S.D. Fla. Mar. 4, 2019) (considering motion for fees on its merits where plaintiff failed
to show prejudice from defendants’ limited noncompliance with Local Rule 7.3).
judgment motion, i.e., for the entire litigation period.10 The undersigned also finds that the
remaining claims against KKM—fraudulent inducement (Count 4), breach of warranties (Counts
6-9), defamation (Counts 10-12), and commercial disparagement (Counts 22 and 26)—are
inextricably intertwined with the claims in Counts 1 and 3, entitling KKM to an award of fees and

nontaxable costs on all claims. Each basis for entitlement is addressed below.
B. KKM is Entitled to Fees under Counts 1 (Misleading Advertising, Fla. Stat.
§ 817.41) and 3 (FDUTPA, Fla. Stat. § 505.2105)

1. Count 1 (Misleading Advertising, Fla. Stat. § 817.41)
As to Count 1 (misleading advertising), the parties agree that KKM is entitled to recover
its fees and nontaxable costs against Akai pursuant to Fla. Stat. § 817.41. (ECF No. 337 at 2, 5);
see also (ECF No. 345 at 4) (Akai’s concession that “KKM is entitled to recover its reasonable
attorney’s fees for prevailing under Count 1”). Because § 817.41 contains a mandatory fee
provision awarding fees and nontaxable costs to the prevailing party, the undersigned finds that
KKM is entitled to recover its fees and nontaxable costs on Count 1 from Akai. KKM’s entitlement
to fees and costs from Horowitz is addressed below. See Sections (III)(C), (IV).
2. Count 3 (FDUTPA, Fla. Stat. § 505.2105)
As to Count 3, the undersigned finds that KKM is entitled to recover its reasonable fees
and costs against Akai for prevailing on Count 3 (FDUTPA). (ECF No. 337 at 5-8). FDUTPA
allows for the Court’s discretionary award of reasonable attorneys’ fees and nontaxable costs to
the prevailing party, upon consideration of the Humane Society factors.11 Temurian v. Piccolo,

10 See Footnote 5, supra, for further explanation.
11 The non-exhaustive Humane Society factors include: (i) the scope and history of the litigation;
(ii) the ability of the opposing party to satisfy an award of fees; (iii) whether an award of fees
against the opposing party would deter others from acting in similar circumstances; (iv) the merits
of the respective positions, including the degree of the opposing party’s culpability or bad faith;
(v) whether the claim brought was not in subjective bad faith but was frivolous, unreasonable,
No. 18-CV-62737, 2021 WL 1520588, at *5 (S.D. Fla. Mar. 3, 2021), report and recommendation
adopted, 2021 WL 1121003 (S.D. Fla. Mar. 24, 2021) (citing Humane Soc., 951 So. 2d at
971-72); see also Sodikart, 2014 WL 6968073, at *3-6 (finding Humane Society factors weighed
in favor of fee award to prevailing defendant). On balance, the undersigned finds that Factors 1,
2, 3, 4, 5, and 7 weigh in favor of an award of fees and costs under FDUTPA.

a. Factor 1: Scope and History of the Litigation
Relevant to the first factor, KKM spent considerable time, effort, and resources to defend
against the FDUTPA claim from the inception of the litigation through trial. During the more than
three-year litigation, the FDUTPA claim was subject to extensive discovery, motion practice, and
survived a motion to dismiss and motion for summary judgment. See (ECF No. 208 at 7, 13-15).
Ultimately, the jury found in favor of KKM. (ECF No. 236 at 3) (Question No. 10). Accordingly,
this factor weighs in favor of awarding fees and nontaxable costs to KKM.
b. Factor 2: Ability to Satisfy an Award of Fees
Generally, there is no presumption that a party can pay a fee award. Tropical Paradise

Resorts, LLC v. JBSHBM, LLC, No. 18-CV-60912, 2021 WL 2269822, at*7 (S.D. Fla. Apr. 30,
2021), report and recommendation adopted, 2021 WL 2024424 (S.D. Fla. May 21, 2021) (citation
omitted). Nonetheless, by “invoking FDUTPA and seeking redress under its remedial provisions,”
Akai “exposed [itself] to both the benefits and the possible consequences of that act’s provisions.”
Id. (quoting Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 369 (Fla. 2013)). Here,
other than cursory statements that it is a small family-owned business with limited financial

groundless; (vi) whether the defense raised a defense mainly to frustrate or stall; and (vii) whether
the claim brought was to resolve a significant legal question under FDUTPA law. Sodikart USA
v. Geodis Wilson USA, Inc., No. 14-CV-22461, 2014 WL 6968073, at *3 (S.D. Fla. Dec. 9, 2014)
(citing Humane Soc., 951 So. 2d at 971-72).
resources and did not make a profit during the first seven years of operation, (ECF No. 345 at 11),
Akai does not support its claim of financial hardship. Conversely, KKM asserts that Plaintiffs
recently obtained a $500,000 judgment against SCI, which is sufficient to cover most of the
claimed fees and costs. (ECF No. 346 at 6). Accordingly, this factor weighs in favor of awarding
fees and costs.

c. Factor 3: Deterrence
Here, where both parties are sophisticated business entities, the undersigned finds that an
award of fees would not have “a chilling effect on consumer plaintiffs bringing suit under
FDUTPA.” Humane Soc., 951 So. 2d at 971; see AMG Trade & Distribution, LLC v. Nissan N.
Am., Inc., No. 18-CV-60062, 2021 WL 1146607, at *4 (S.D. Fla. Feb. 26, 2021), report and
recommendation adopted, 2021 WL 1146352 (S.D. Fla. Mar. 25, 2021) (“While it is important to
minimize frivolous lawsuits, it is equally important not to deter plaintiffs from filing meritorious
FDUTPA claims.”); cf. Temurian, 2021 WL 1520588, at *7 (finding Factor 3 weighed in favor of
awarding fees because “a fee award would deter Point Conversions (and others like it) from

bringing frivolous claims in an attempt to circumvent patent law”). Accordingly, this factor
weighs in favor of a fee award.
d. Factors 4 and 5: Merits of Position/Groundless or Unreasonable

Akai’s FDUTPA claim survived KKM’s motion to dismiss and motion for summary
judgment. Thus, it cannot be said that Akai’s claim was initially brought in bad faith or was
frivolous. KKM nonetheless argues that Akai’s decision to continue to prosecute the FDUTPA
claim after discovery revealed that “at all relevant times[,] KKM was only manufacturing pistol
barrels out of the Outokumpu steel” makes Akai’s continuation of the FDUTPA claim
unreasonable or frivolous.12 (ECF No. 337 at 7-8). This argument weighs in favor of an award of
fees and nontaxable costs. See, e.g., Covington v. Arizona Beverage Co., 08-CV-21894, 2011 WL
11796700, at * 4 (S.D. Fla. Feb. 15, 2011), report and recommendation adopted in part, 2011 WL
11796786 (S.D. Fla. Aug. 25, 2011) (finding Factor 4 weighed in favor of fee award where it was
plaintiff’s responsibility to voluntarily dismiss the action once it became evident during discovery

that he could not proceed with the FDUTPA claim).
e. Factors 6 and 7: Defense to Frustrate or Stall/Claim Brought to
Resolve Significant Legal Question

As to the sixth factor, KKM prevailed on all its defenses, so this factor is inapplicable. See
Sodikart, 2014 WL 6968073 at *5 (finding Factor 6 “ha[d] no bearing on th[e] case, as [d]efendant
was the prevailing party, not the losing party”). The seventh factor, however, weighs in KKM’s
favor, as Akai’s FDUTPA claim was not complex and did not look to resolve a significant legal
question or novel issue. See Tropical Paradise Resorts, 2021 WL 2269822, at*8 (finding Factor
7 weighed in favor of a fee award where “the FDUTPA counterclaims cannot be said to have been
brought to resolve a significant legal question or novel issue”); Chastain v. N.S.S. Acquisition
Corp., No. 08-CV-81260, 2010 WL 5463859, at *2 (S.D. Fla. Dec. 29, 2010) (finding award of
fees unwarranted where “plaintiff’s claim was not brought to resolve a significant legal question
under FDUTPA law”).

12 According to KKM, “[t]he thrust of Akai’s contention was that KKM attempted to deceive the
purchasing public by manufacturing pistol barrels out of two different types of steel, one of which
Akai claimed was a ‘softer’ grade of steel [i.e., Carpenter Project 70+ steel] . . . and made available
by KKM through third-party distributors, such as SCI; the second was a harder grade of steel [i.e.,
the Outokumpu steel] that Akai claims that KKM sold exclusively through its direct website.”
(ECF No. 337 at 7).
C. Counts 1 and 3 are “Inextricably Intertwined” with All Other Claims Against
KKM (Counts 4, 6-9, 10-12, 22, and 26)

Having determined that KKM is entitled to fees for the claims alleged in Counts 1 and 3,
the Court must next consider whether the remaining claims are “inextricably intertwined” with
Counts 1 and 3. According to KKM, “[a]ll the issues in this litigation are inextricably intertwined”
with Count 1 (misleading advertising) and Count 3 (FDUTPA) because they involve “almost
identical factual issues” centering “primarily upon whether the KKM barrels were defective.”
(ECF No. 337 at 14). Thus, KKM argues that it should recover all fees and nontaxable costs for
all claims asserted against it by both Plaintiffs. Id. at 14-16. Additionally, KKM argues that its
legal defenses “to the misleading advertising claim [Count 1] were substantively identical to its
defenses to the FDUTPA claim [Count 3] and defamation claims [Counts 10-12].” (ECF No. 346
at 2). KKM further asserts that it defended the FDUTPA claim (Count 3) and defamation claims
(Counts 10-12) “using the same arguments,” and that KKM “could not have defended Plaintiffs’
FDUTPA or defamation claims without proving the exact same elements that KKM relied upon in
defense of the misleading advertising claim” in Count 1. Id. at 3 (footnote omitted).
When a party prevails on a claim on which it is entitled to an award of attorney’s fees and
also prevails on another claim for which there is no entitlement to fees, the prevailing party is
entitled to recover attorney’s fees for both claims when the claims are so intertwined that
reasonable apportionment of the attorney’s time is impractical. Onemata Corp. v. Rahman,
No. 20-CV-62002, 2023 WL 6534501, at *6 (S.D. Fla. Aug. 23, 2023), report and

recommendation adopted, 2023 WL 5992139 (S.D. Fla. Sept. 15, 2023) (citation omitted); see
also Pro. Plaza Condo. Ass’n, Inc. v. Landmark Infrastructure Holding Co., LLC, No. 20-CV-
20707, 2022 WL 2819667, at *9 (S.D. Fla. June 14, 2022), report and recommendation adopted,
2022 WL 2817879 (S.D. Fla. July 19, 2022) (“When facts supporting all causes of action are so
intertwined that apportionment is not feasible, the court may award the prevailing party all
attorney’s fees.”). Moreover, where a particular claim is subject to a statutory fee entitlement
provision but one or more related claims are not, “time spent marshaling the facts” of the related
claims is compensable because it “likely would have been spent defending any one or all of the
counts.” Caplan v. 1616 E. Sunrise Motors, Inc., 522 So. 2d 920, 922 (Fla. 3d DCA 1988). Lastly,

when a party seeking fees establishes that the claims involve a common core of facts and are based
on related legal theories, all reasonable fees may be awarded, unless the opposing party can show
that the requesting attorneys spent separate and distinct time working on counts as to which
attorney’s fees are not authorized. Onemata Corp., 2023 WL 6534501, at *6 (citing Thompson v.
Branch Banking & Tr. Co., No. 19-CV-60108, 2020 WL 7061558, at *4 (S.D. Fla. Nov. 10, 2020),
report and recommendation adopted, 2020 WL 7059353 (S.D. Fla. Dec. 2, 2020); and Filippova
v. Mogilevsky, No. 18-CV-80044, 2019 WL 1216150, at *6 (S.D. Fla. Feb. 14, 2019), report and
recommendation adopted, 2019 WL 1216205 (S.D. Fla. Mar. 7, 2019)).
Against this legal backdrop, the undersigned finds that KKM has met its burden of showing

that all the claims against it share a common core of facts and related legal theories and are
inextricably intertwined, so that allocation between claims is not feasible. See Kipu Sys. LLC v.
Zencharts, LLC, No. 17-CV-24733, 2021 WL 1891710, at *13 (S.D. Fla. Apr. 6, 2021), report and
recommendation adopted, No. 17-CV-24733, 2021 WL 4505527 (S.D. Fla. Sept. 30, 2021)
(finding claims inextricably intertwined where “all the claims [were] based on a core set of facts”
and related legal theories); Waverly at Las Olas Condo. Ass’n, Inc. v. Waverly Las Olas, LLC,
88 So. 3d 386, 388 (Fla. 4th DCA 2012) (affirming award of fees for inextricably intertwined
claims based on “the same core set of facts” and alternative, but related, legal theories). Here, the
allegations in Count 1 (misleading advertising) and Count 3 (FDUTPA) involve interrelated
factual and legal issues. The Amended Complaint generally alleges that KKM falsely advertised
the barrels it sold to Plaintiffs as 416R stainless steel, when in fact the barrels were made of a
softer and different type of steel, and concealed this from Plaintiffs. See Am. Compl. ¶¶ 34, 62,
64. The claims against KKM focused on whether the KKM barrels were defective, including
whether they were made of 416R steel or some softer type of steel. See Am. Compl. ¶¶ 106-19,

155-59, 162-63, 171-73, 194, 196-97, 201-03, 210-12, 216, 228-35, 238, 245-52, 255, 264-71,
274, 276, 752-60, 762, 925, 928-36, 938. Thus, KKM’s defense of the integrity of its barrels was
integral to every claim against KMM, including the fraudulent inducement (Count 4), warranty
(Counts 6-9), defamation (Counts 10-12), and commercial disparagement claims (Counts 22, 26).
See id.
The undersigned’s conclusion that all claims are inextricably intertwined is further
supported by the District Judge’s Summary Judgment Order. In the Summary Judgment Order,
the District Judge noted that summary judgment was inappropriate as to Count 1 (misleading
advertising) because “a genuine and material dispute exists over the composition and hardness of

the gun barrels.” (ECF No. 208 at 10). The District Judge then described Counts 3 (FDUTPA)
and 4 (fraudulent inducement) as involving the same factual questions as in Count 1 (misleading
advertising). Id. at 9. As to Count 3, the District Judge further stated, “Plaintiffs premise their
FDUTPA claim against KKM on the same allegations supporting their misleading advertising
claim” in Count 1, adding that “whether KKM engaged in misleading advertising involves
disputed questions of fact that would necessarily impact the determination of KKM’s liability” in
Count 3. Id. at 14-15. Similarly, the District Judge noted that Plaintiffs’ warranty claims (Counts
6-9) stem from Plaintiffs’ allegation that Defendants breached various express and implied
warranties in selling the allegedly defective gun barrels. Id. at 16.
Moreover, the defamation (Counts 10-12) and commercial disparagement (Counts 22 and
26) claims stemmed from KKM’s Open Letter, in which KKM attempted to rebut Plaintiffs’
allegations that KKM’s barrels were soft or defective. See Am. Compl. ¶¶ 228-35, 245-52,
264-71, 752-59, 928-35. KKM defended these claims by proving that it did not manufacture the
barrels using two different grades of steel or using steel that it believed was softer than 42RC,

relying on the same evidence and legal theories it used to defend against Counts 1 and 2. Lastly,
Plaintiffs’ alleged damages against KKM were also inextricably intertwined, asserting the same
lost profits, costs of repair, and consequential or incidental damages on all claims. See Am. Compl.
at 137, 146, 148, 154-57, 162, 168, 174, 345, 408 (similar “Wherefore” clauses in Counts 1, 3, 4,
6-9, 10-12, 22, 26).
For these reasons, the undersigned finds that KKM is entitled to recover its fees related to
the misleading advertising claims (Counts 1, 3, and 4) and all other claims (Counts 6-9, 10-12, 22,
and 26), as they are all based on the same core facts and related legal theories, and are therefore
inextricably intertwined. See, e.g., Onemata Corp., 2023 WL 6534501, at *7; see also Kosterlitz

v. S/V Knotta KLU, No. 18-CV-482-FtM-PAM-MRM, 2020 WL 7039912 (M.D. Fla. Nov. 3,
2020), aff’d, 848 Fed. App’x. 886 (11th Cir. 2021) (quoting Anglia Jacs & Co., Inc. v. Dubin,
830 So. 2d 169, 172 (Fla. 4th DCA 2002) (“[U]nder Florida law a claim is inextricably intertwined
with another when ‘a determination of the issues in one action would necessarily be dispositive of
the issues raised in the other.’”).
IV. ALLOCATION BETWEEN PLAINTIFFS
The undersigned next addresses Plaintiffs’ argument that any fees and costs awarded
should be allocated between Plaintiffs based on the respective claims brought by each.
(ECF No. 345 at 1-2). In this regard, district courts have broad discretion in determining the fee
award, apportioning the fee award, and allocating liability. Kipu Sys. LLC v. Zencharts LLC, No.
17-CV-24733, 2021 WL 1895881, at *8 (S.D. Fla. Apr. 6, 2021), report and recommendation
adopted, 2021 WL 4479451 (S.D. Fla. Sept. 30, 2021) (citing United States v. Patrol Servs., Inc.,
202 F. App’x 357, 362 (11th Cir. 2006)). In so doing, the goal is “to achieve the most fair and
sensible solution as possible.” Patrol Servs., 202 F. App’x at 362 (citing Council for Periodical
Distrib. Ass’ns v. Evans, 827 F.2d 1483, 1488 (11th Cir.1987)).

Because there is no single preferred method for achieving a fair and sensible allocation,
courts have taken various approaches, including, for example: (i) finding joint and several liability
between the parties; (ii) apportioning fees in accordance with each party’s relative degree of
culpability; (iii) apportioning fees in the same proportions as the jury assessed damages;
(iv) apportioning fees based on the amount of time spent by a plaintiff in preparing the case against
each defendant; and (v) apportioning fees by claims or defenses that are specific to a particular
defendant. Id. (citing Evans, 827 F.2d at 1487-88); Kipu, 2021 WL 1895881, at *8 (citing Booher
v. Marion Cty., No. 07-CV-282-OC-10GRJ, 2010 WL 11623534, at *10 (M.D. Fla. Sept. 14,
2010)); see also Centeno v. Santos Furniture Custom Design, Inc., No. 09-CV-23024, 2012 WL

13008328, at *1 (S.D. Fla. June 4, 2012) (apportioning fees in accord with parties’ relative liability
under jury verdict); State Farm Mut. Auto. Ins. Co. v. First Care Sol., Inc., No. 15-CV-21215,
2017 WL 3835345, at *4-5 (S.D. Fla. July 7, 2017), report and recommendation adopted, 2017
WL 3724165 (S.D. Fla. Aug. 29, 2017) (reducing a fee award based on the party’s relative
culpability). If necessary, the district court may combine two or more methods depending on the
facts and nature of the case. Patrol Servs., 202 F. App’x at 362 (citing Evans, 827 F.2d at 1488).
Where, however, plaintiffs have largely operated as a “single cohesive unit and there is no
compelling reason to choose any other method to apportion fees and costs [t]hen the default rule
is that joint and several liability apply where there is more than one non-prevailing party.” Fernau
v. Enchante Beauty Products, Inc., No. 18-CV-20866, 2021 WL 1923285, at *1 (S.D. Fla. May
13, 2021) (quoting Kipu, 2021 WL 1895881, at *9). Indeed, it is the non-prevailing party’s burden
to “introduce evidence justifying apportionment and persuade the Court to do that,” rather than
impose fees jointly and severally. Id. (quoting Moore v. Shands Jacksonville Med. Ctr., Inc.,
No. 09-CV-298-J-34PDB, 2014 WL 12652475, at *7 (M.D. Fla. April 3, 2014)). Equities favoring

a finding of joint and several liability include: (i) joint representation of the non-prevailing parties;
(ii) common theories of liability or defense among the non-prevailing parties; (iii) equal cost
attributions; and (iv) the unfairness of requiring the prevailing party to collect costs from several
sources and bear the risk of non-payment from one or more of them. Id. On the other hand,
equities favoring apportionment include: (i) whether the court had consolidated cases on its own
initiative; (ii) whether costs can be easily split; and (iii) and unequal cost attribution. Id.
Here, the undersigned finds that a balance of the equities weigh in favor of assessing
KKM’s fees and costs against both Plaintiffs, jointly and severally. Given that the undersigned
previously found all claims against KKM were inextricably intertwined, sharing common

questions of fact and law, this approach is fair and reasonable. See Fernau, 2021 WL 1923285, at
*2. “That the matters were intertwined enough to be brought in a single proceeding, by choice of
the Plaintiffs, supports a joint and several fee award.” Id. Additionally, Plaintiffs’ claims were
advanced by a single attorney, pursuing a common litigation strategy, through joint motions. See
id.; Kipu, 2021 WL 1895881, at *9; see also (ECF Nos. 80, 86, 90, 109, 133, 134, 149, 186, 260,
297, 298) (non-exhaustive list of motions brought jointly by Plaintiffs). Plaintiffs only now seek
to differentiate themselves as they face a potential award of fees and costs. See Kipu, 2021 WL
1895881, at *9; (ECF No. 345 at 1-2). Moreover, based on Akai’s representations about its
purported inability to pay the requested attorneys’ fees and costs, (ECF No. 345 at 11-12), KKM
runs the risk on non-collection if fees are assessed solely against Akai. Kipu, 2021 WL 1895881,
at *9.
V. THE LODESTAR METHOD OF DETERMINING REASONABLE FEES
Having determined that KKM is entitled to all reasonable fees and costs incurred in
defending this action because all claims against it were inextricably intertwined with Count 1

(misleading advertising under § 817.41) and Count 3 (FDUTPA under § 505.2105), and pursuant
to the Proposals for Settlement (§ 768.79), the undersigned next addresses the reasonableness of
the requested fees. In assessing the reasonableness of a request for attorney’s fees in the Eleventh
Circuit, courts use the “lodestar” method to calculate an objective estimate of the value of an
attorney’s services. Norman, 836 F.2d at 1299. Under the lodestar method, the value of an
attorney’s services is calculated by multiplying the hours that the attorney reasonably worked by
a reasonable rate of pay. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing Norman,
836 F.2d at 1299). The “fee applicant bears the burden of establishing entitlement and
documenting the appropriate hours and hourly rates.” Barnes, 168 F.3d at 427 (quoting Norman,

836 F.2d at 1303).
Importantly, courts are not authorized “to be generous with the money of others, and it is
as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see
that an adequate amount is awarded.” Id. at 428. When a request for attorney’s fees is
unreasonably high, courts may “conduct an hour-by-hour analysis” or “reduce the requested hours
with an across-the-board cut.” Bivins v. Wrap it Up Inc., 548 F.3d 1348, 1350 (11th Cir. 2008);
see also Procaps S.A. v. Patheon Inc., No. 12-CV-24356, 2013 WL 6238647, at *17 (S.D. Fla.
Dec. 3, 2013) (reducing fee request with across-the-board reduction for billing inefficiencies).
Although courts may apply either method, they cannot apply both. Bivins, 548 F.3d at 1351.
Finally, courts need not become “green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826,
838 (2011). Instead, the essential goal for the court is to “do rough justice, not to achieve auditing
perfection.” Id. Additionally, the court may use its own expertise to fashion a pragmatic and
reasonable remedy as “a request for attorney’s fees should not result in a second major litigation.”
Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 F. App’x 888, 895 (11th Cir. 2011)

(citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
A. Reasonable Hourly Rates
“A reasonable hourly rate 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 (citing Blum v. Stenson, 465 U.S. 886, 895-96 (1984)). The relevant market is
“the place where the case is filed.” Barnes, 168 F.3d at 427 (quotation marks and citation omitted).
Here, the relevant legal community is South Florida.
In determining reasonable hourly rates in South Florida, the undersigned may consider
certain factors, including “the attorney’s customary fee, the skill required to perform the legal

services, the attorney’s experience, reputation and ability, the time constraints involved, preclusion
of other employment, contingency, the undesirability of the case, the attorney’s relationship to the
client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla.
1996) (citing factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974)13 (the “Johnson factors”)).
Here, KKM seeks to recover fees incurred by six individuals from Zimmerman, Kiser &
Sutcliffe, P.A. (“ZKS”), who represented KKM throughout the litigation. (ECF No. 337 at 9). In

13 Pursuant to Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted
as binding precedent the decisions of the former Fifth Circuit rendered before October 1, 1981.
support of the Motion, attorney Kevin P. Robinson submits two Declarations detailing the hourly
rates of the various timekeepers and their relevant roles.14 (ECF No. 337 at 30-33, 191-94).
According to the Declarations, attorney Robinson, a member of the Florida bar since 2005, has
been a shareholder at ZKS since 2013, and practices commercial and business litigation.
(ECF No. 337 at 30, 31-32). From 2020 through 2024, attorney Robinson billed at hourly rates of

$375, $390, $425, $450, and $495, respectively. (ECF No. 337 at 31-32, 193); see also
https://www.floridabar.org/directories/find-mbr/profile/?num=14650 (last visited Aug. 28, 2025).
The Declarations also provide that attorney Nicholas Mari, a member of the Florida bar since 2016,
is a senior associate at ZKS who practices commercial litigation and was the primary associate
working on the case. (ECF No. 337 at 30-31, 35, 191-92); see also
https://www.floridabar.org/directories/find-mbr/profile/?num=123877 (last visited Aug. 28,
2025). From 2022 through 2024, Attorney Mari’s hourly rates were $275, $325, and $375,
respectively. Id. at 32, 193. Although the parties stipulate to the reasonableness of the hourly rates
for counsel through 2023, they do not agree to counsel’s increased rates for 2024. (ECF No. 337

at 9, 9 n. 7-9).
The Declarations also explain that associates Ava Sigman (at $275/hr), Richard Harrylal
(at $250/hr), and Andrew Hughes (at $225/hr) worked on the case in limited capacities (billing
less than 20 hours), primarily preparing for trial and assisting with legal research. Id. at 31-32,
192. Finally, the Declarations include cursory reference to paralegal Jennifer Concannon, who
worked on the case in 2022/2023 in a limited capacity, primarily reviewing documents produced
through discovery, and billing at $150 and $175 per hour, respectively. Id.

14 Attorney Robinson’s initial Declaration focused on the hours billed and hourly rates between
2020 and 2023. See (ECF No. 337 at 30-33). Attorney Robinson’s supplemental Declaration
updates the hours billed and billing rates for 2024. Id. at 191-94.
The Court has considered the relevant Johnson factors, the Declarations, and time records,
id. at 36-153, 197-227, and finds that attorneys Robinson and Mari’s rates, including those charged
in 2024, are reasonable for the work performed by attorneys in the South Florida legal market. See
e.g., Family First Life, LLC v. Rutstein, No. 22-CV-80243, 2023 WL 5939620, at *3 (S.D. Fla.
Aug. 23, 2023), report and recommendation adopted, 2023 WL 5929434 (S.D. Fla. Sept. 12, 2023)

(finding hourly rates between $375-$775 reasonable for attorneys in case involving FDUTPA and
defamation claims); Unisource Discovery, Inc. v. Unisource Discovery, LLC, No. 20-CV-23276,
2023 WL 4187094, at *2 (S.D. Fla. June 9, 2023), report and recommendation adopted, 2023 WL
4188118 (S.D. Fla. June 26, 2023) (finding hourly rates between $230-$500 reasonable for
attorneys in case involving FDUTPA claim); Movie Prop. Rentals LLC v. Kingdom of God Glob.
Church, No. 22-CV-22594, 2024 WL 4215630, at *3-4 (S.D. Fla. Aug. 13, 2024), report and
recommendation adopted, 2024 WL 4120033 (S.D. Fla. Sept. 9, 2024) (finding $425 a reasonable
hourly rate for attorney in case involving FDUTPA claim and noting that the Southern District has
found rates up to $850/hr for partners and $700/hr for associate as reasonable); see also Barberi v.

TCB Sport Ent. LLC, No. 21-CV-60726, 2022 WL 625239, at *3 (S.D. Fla. Feb. 16, 2022), report
and recommendation adopted, 2022 WL 624998 (S.D. Fla. Mar. 3, 2022) (awarding $420/hr to
17-year attorney and $325/hr to 11-year attorney for work in 2021); CBRE, Inc. v. Capital Com.
Real Estate Group, Inc., No. 19-CV-61235, 2019 WL 7708503, at *2 (S.D. Fla. Oct. 10, 2019),
report and recommendation adopted, 2019 WL 7708499 (S.D. Fla. Oct. 28, 2019) (awarding
$585/hr to 26-year partners and $360/hr to six-year associate for work in 2019).
Nevertheless, the undersigned considers the rates of the other attorneys against Local Rule
7.3(a)(5)(A), which requires that a motion for attorneys’ fees and costs provide “the identity,
experience, and qualifications for each timekeeper for whom fees are sought.” S.D. Fla. L.R.
7.3(a)(5)(A); see also Purcella v. Mercantile Adjustment Bureau, LLC, No. 18-CV-61268, 2019
WL 6462550, at *4, report and recommendation adopted, 2019 WL 6608900 (S.D. Fla. Dec. 5,
2019) (reducing counsel’s hourly rates for failure to comply with Local Rule). Here, although the
Motion includes the professional experience for two of the five attorneys (i.e., Robinson and Mari),
the Motion provides little or no information about the three other attorneys (i.e., Sigman, Harrylal,

and Hughes) and the paralegal (Concannon) who worked on the case. Upon the Court’s
independent review, however, and with a lack of opposition from Plaintiffs, the undersigned finds
the hourly rates charged by attorneys Sigman (admitted to Florida Bar in 2020 at $275/hr), Harrylal
(admitted to Florida Bar in 2022 at $250/hr), and Hughes (admitted to Florida Bar in 2021 at
$225/hr) are consistent with the rates charged by attorneys with similar experience in this District.
See e.g., Soc. Athlete v. Young, No. 22-CV-60556, 2024 WL 624044, at *4 (S.D. Fla. Jan. 26,
2024), report and recommendation adopted, 2024 WL 621395 (S.D. Fla. Feb. 14, 2024) (awarding
$300/hr to four-year associate for work done in 2022); see also
https://www.floridabar.org/directories (last visited Aug. 28, 2025). Accordingly, the hourly rates

for the other attorneys are reasonable.
That said, because KKM did not provide any information regarding the
experience/qualifications of paralegal Concannon that would allow the undersigned to determine
whether $150/$175 are reasonable hourly rates, the undersigned recommends that the paralegal’s
hourly rate be reduced to $125. See, e.g., Purcella, 2019 WL 6462550, at *4 (reducing paralegal
rate from $150 to $125 where the motion provided “little professional background” about the
paralegal’s identity, experience, and qualifications); Barberi, 2022 WL 625239, at *4 (reducing
paralegals’ hourly rate from $125 to $100 in the absence of any background information regarding
their education, skills, and experience); Garcia v. J & J, Inc., No. 19-CV-60728, 2021 WL 633377,
at *6 (S.D. Fla. Feb. 1, 2021), report and recommendation adopted, 2021 WL 616529 (S.D. Fla.
Feb. 17, 2021) (same). Accordingly, the undersigned recommends that: (i) KKM’s attorneys’
hourly rates be approved as reasonable, without reduction; and (ii) the paralegal’s hourly rate be
reduced to $125.
B. Reasonable Hours Expended

Having determined counsel’s reasonable hourly rates, the undersigned next determines the
reasonableness of the hours expended working on the case. Generally, attorneys must exercise
what the Supreme Court has termed “billing judgment.” Hensley, 461 U.S. at 434. That means
they must exclude from fee applications “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.” Norman, 836 F.2d at 1301
(quotations and citations omitted). Importantly, “if fee applicants do not exercise billing judgment,
courts are obligated to do it for them.” Barnes, 168 F.3d at 428. The fee applicant also bears the
burden of providing specific and detailed evidence so that the court can determine the necessity

and reasonableness of the time claimed for the task. Id. at 427, 432-33. In the end, however,
“exclusions for excessive or unnecessary work on given tasks must be left to the discretion of the
district court.” Norman, 836 F. 2d at 1301. Here, the undersigned has reviewed the relevant billing
records and finds that the hours expended are reasonable. (ECF No. 337 at 11, 36-153).
Accordingly, KKM should be awarded fees for the hours expended, without reduction.
For ease of reference, below is a summary of the timekeepers, the hourly rates,15 and the
hours expended, mirroring the chart included in the Motion. Id. at 17.

15 Although KKM is silent on the source of the listed hourly rates, the Court has independently
confirmed that the rates are the blended hourly rates for each timekeeper for the years 2020 through
2024.
TIMEKEEPER BLENDED/HOURL HOURS EXPENDED
Y RATE
Kevin P. Robinson – Partner $434.75 682.1
Nicholas J. Mari – Senior $310.53 424.4
Assoc.
Ava Sigman – Associate $250 12.5
Richard Harrylal – $250 19.1
Associate
Andrew Hughes – Associate $225 19.1
Jennifer Concannon – $125 8.9
Paralegal

In addition to the slight reduction in the paralegal’s hourly rate discussed above, the
undersigned accepts KKM’s reduced fee request of $428,781.46 ($271,051.50 + $157,729.96), as
set forth in its Reply. See (ECF No. 346 at 5). Accordingly, the undersigned recommends that
counsel for KKM be awarded $428,781.46 in attorneys’ fees.16
VI. NONTAXABLE COSTS
Pursuant to Florida Statutes §§ 768.79, 817.41, and 501.2105, KKM is entitled to its
nontaxable costs reasonable and related to the litigation. Sprint Commc’ns, LLC v. Calabrese,
No. 18-CV-60788, 2025 WL 713048, at *11, 12 (S.D. Fla. Feb. 20, 2025), report and
recommendation adopted, 2025 WL 708130 (S.D. Fla. Mar. 5, 2025) (citations omitted); see Chow
v. Chak Yam Chau, 640 F. App’x 834, 836 n.4 (11th Cir. 2015) (noting that FDUTPA allows for
an award of taxable and nontaxable costs). KKM seeks to recover $78,068.35 in nontaxable costs.
(ECF No. 337 at 18-20). In the absence of any specific objections from Plaintiffs, the undersigned
nonetheless reviews the requested costs to ensure reasonableness and appropriateness.

16 Although the undersigned has reduced the paralegal’s hourly rate, the net effect of this reduction
to the total amount of fees claimed by KKM is negligible. Therefore, the undersigned accepts
KKM’s requested amount of $428,781.46 as the appropriate figure.
A. Expert Costs
1. Trial Expert
Most of KKM’s nontaxable costs are related to services rendered by its joint defense
metallurgy expert, Dr. Lee Swanger. See (ECF No. 337 at 18, 33, 154-90). In addition to testifying
at trial, Dr. Swanger performed expert testing of the subject barrels and issued a report and

supplemental report. Id. at 18. Exponent (Dr. Swanger’s employer) billed a total of $128,814.84
for his services, of which KKM was responsible for 50% ($64,407.42), pursuant to its cost-sharing
agreement with co-Defendant SCI. Id.
In the absence of any objection by Plaintiffs, the undersigned finds that the costs incurred
by KKM in connection with Dr. Swanger’s expert services were reasonably incurred in defense of
this litigation and are recoverable. See Gov’t Emps. Ins. Co. v. Quality Diagnostic Health Care,
Inc., No. 18-CV-20101, 2020 WL 11303392, at *5 (S.D. Fla. July 17, 2020) (awarding expert
report preparation fees as nontaxable costs under FDUTPA); Jacques v. Wal-Mart Stores E., L.P.,
No. 18-CV-60072, 2020 WL 5027358, at *4 (S.D. Fla. Jan. 13, 2020), report and recommendation

adopted, 2020 WL 5027410 (S.D. Fla. Jan. 31, 2020) (finding defendant entitled to nontaxable
expert witness fees); BVS Acquisitions Co., LLC v. Brown, No. 12-CV-80247, 2015 WL 12921971,
at *8 (S.D. Fla. Aug. 5, 2015) (awarding expert fees as nontaxable costs).
2. Expert on Fees
KKM also seeks $12,495 in nontaxable costs for the services of attorney Craig S. Barnett,
who served as an “expert on fees” in support of the Motion. See (ECF No. 337 at 245-47) (invoice
from attorney Barnett). KKM claims it became necessary to hire attorney Barnett because of
Plaintiffs’ unwillingness to stipulate to the requested fees and costs. Id. at 19.
The undersigned finds that attorney Barnett’s fees are not reasonable and should not be
recoverable. Because the Court is considered an expert on fees, the undersigned did not need to
rely on the Affidavit or Supplemental Affidavit of attorney Barnett. See Interim Healthcare, Inc.
v. Health Care@Home, LLC, No. 17-CV-61378, 2019 WL 6791465, at *7 (S.D. Fla. Nov. 27,
2019), report and recommendation adopted, No. 17-CV-61378, 2019 WL 6769666 (S.D. Fla. Dec.

12, 2019) (citation omitted) (noting failure to have third-party expert review fees is not fatal
because the Court is deemed an expert). Indeed, attorney Barnett’s Affidavit included a chart
representing that KKM was entitled to $681,283 in attorneys’ fees through the final judgment,
which is inconsistent with (and greater than) the fees requested by KKM in its Motion. Compare
(ECF No. 337 at 234-35), with (ECF Nos. 337 at 17, 20, 346 at 5). Moreover, attorney Barnett’s
Supplemental Affidavit included an additional $33,385.50 to be awarded to KKM for the post-
judgment stage. Compare (ECF No. 337 at 244), with (ECF No. 337 at 16-17) (KKM’s request
for $20,739 in attorneys’ fees for the post-judgment period). Given the inconsistencies between
attorney Barnett’s Affidavits and KKM’s requested fees, the undersigned recommends against an

award of fees for attorney Barnett’s services.
Accordingly, KKM should be awarded $64,407.42 in nontaxable costs for its expert fees
(as to Dr. Swanger only).
B. Mediation Costs
KKM also seeks to recover $1,100 in costs associated with mediation. Id. at 20. The
undersigned finds these costs are reasonable and recoverable and should be awarded. See Sprint
Commc’ns, 2025 WL 713048, at *12 (awarding $2,815 in nontaxable costs for mediation under
FDUTPA); Gov’t Emps. Ins. Co., 2020 WL 11303392, at *5 (awarding $2,532 in nontaxable costs
for mediation under FDUTPA).
C. Miscellaneous Costs
Lastly, KKM requests reimbursement of $65.93 for demonstrative exhibits used at trial.
(ECF No. 337 at 19-20). This amount includes $55.29 for a demonstrative of Exhibit 45 (U.S.
M1911/M1911A1 Shop Manual) and $10.64 for an exemplar PVC pipe used during KKM’s
opening statement. Id. The undersigned finds these costs are reasonable and related to the

litigation, and that KKM should be awarded $65.93 in nontaxable costs for its demonstrative aids.
See Sprint Commc’ns, 2025 WL 713048, at *12 (awarding nontaxable costs under FDUTPA for
certified copies used at trial).
In total, the undersigned recommends that KKM be awarded $65,573.35 in nontaxable
costs.
VII. RECOMMENDATION
For the reasons set forth above, the undersigned respectfully RECOMMENDS that:
1. KKM’s Motion (ECF No. 337) be GRANTED IN PART AND DENIED IN
PART. KKM should be awarded $428,781.46 in attorneys’ fees and $65,573.35 in costs.

2. Plaintiffs be found jointly and severally liable for the award.
Within 14 days after being served with a copy of this Report and Recommendation, any
party may serve and file written objections to any of the above findings and recommendations as
provided by the Local Rules for this District. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b).
Subsequently, within 7 days, a party may respond to objections, if any, filed to this Report and
Recommendation. Failure to timely object waives the right to challenge on appeal the District
Court’s order based on unobjected-to factual and legal conclusions contained in this Report and
Recommendation. 11th Cir. R. 3-1 (2024); see Thomas v. Arn, 474 U.S. 140 (1985).
Lastly, if counsel do not intend to file objections, they shall file a Notice of Non-Objection
within 3 days of this Report and Recommendation.
DONE AND ORDERED in Chambers in Fort Lauderdale, Florida on August 29, 2025.

ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
cc: U.S. District Judge Rodney Smith
All counsel of record

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11145846. Public record. Not legal advice.