MAC R. McCOY, Magistrate Judge.
Pending before the Court is Plaintiff Ferrara Candy Company's Motion for Attorney's Fees and Costs Pursuant to Judgment and Permanent Injunction of Doc. 33, filed on August 13, 2018. (
Plaintiff brought this action against Defendants, alleging that Defendants were liable for federal trademark infringement, federal trademark dilution, federal unfair competition, common law claims, and Florida state law claims. (
In doing so, the Court addressed Plaintiff's request for attorneys' fees and costs, noting that despite initially seeking monetary damages in its Complaint (
"A reasonable attorneys' fee is `properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate'" to obtain the "lodestar." Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1313, 1317 (M.D. Fla. 2001) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); see also Lawrence v. Berkley Grp., Inc., No. 10-61069-civ-KMW, 2013 WL 12239477, at *1 (S.D. Fla. Feb. 20, 2013). The party seeking fees "bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). "[A]n applicant may meet this burden by producing either direct evidence of rates charged under similar circumstances, or opinion evidence of reasonable rates." Wales, 192 F. Supp. 2d at 1317 (citing Norman, 836 F.2d at 1299). A court may, however, rely on its own expertise and judgment in assessing the value of counsel's services. Id. (citing Norman, 836 F.2d at 1303).
The first step in reaching the lodestar is to determine a reasonable hourly rate. "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, 465 U.S. at 895-96 n.11). Generally, the "`relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is `the place where the case is filed.'" Wales, 192 F. Supp. 2d at 1318 (quoting ACLU of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999)); see also United States v. Central Fla. Reg'l Workforce Dev. Bd., Inc., No. 6:04-cv-93-Orl9DABC, 2007 WL 1601747, at *5 (M.D. Fla. June 1, 2007). Thus, the relevant market is the Fort Myers Division of the Middle District of Florida. Isaac v. Classic Cleaners of Pelican Landing, Inc., No. 2:16-cv-171-FtM-29CM, 2017 WL 632510, at *1 (M.D. Fla. Feb. 16, 2017) (citing Olesen-Frayne v. Olesen, 2:09-cv-49-FtM-29DNF, 2009 WL 3048451, at *2 (M.D. Fla. Sept. 21, 2009)).
The Undersigned notes that two of Plaintiff's three attorneys are located in Minneapolis, Minnesota. This Court has held that if counsel seeks recovery for non-local rates, a plaintiff "must show a lack of attorneys practicing in that place who are willing and able to handle his claims." Wales, 192 F. Supp. 2d at 1318 (concluding that affidavit reflecting "only a limited search for local counsel" was insufficient to meet the plaintiff's burden); see also Martinez v. Hernando Cty. Sheriff's Office, No. 8:12-cv-666-T-27TGW, 2013 WL 6047020, at *3 (M.D. Fla. Nov. 13, 2013), aff'd, 579 F. App'x 710 (11th Cir. 2014).
Plaintiff seeks compensation for three attorneys and two paralegals and requests the following rates:
(
In support of its fee request, Plaintiff submits the declaration of Attorney Golla, who states that he is familiar with the case and attests to the attorneys' respective rates and number of hours worked as reflected in the attached itemized billing entries. (
Although the Undersigned has not found any recent intellectual property cases from this division that address the issue of reasonable fees, this Court has awarded rates of up to $425 an hour in other cases. See, e.g., Whirpool Corp. v. Olsen, No. 2:15-cv-223-FtM-38CM, 2016 WL 241391, at *2 (M.D. Fla. Jan. 5, 2016), report and recommendation adopted sub nom, Whirlpool Corp. v. Wysocki, No. 2:15-cv-223-FTM-38CM, 2016 WL 233793 (M.D. Fla. Jan. 20, 2016); see also Adams v. Fritz Martin Cabinetry, LLC, No. 2:18-cv-83-FtM-99MRM, 2018 WL 4215892, at *4 (M.D. Fla. Sept. 5, 2018); Mid-Continent Cas. Co. v. G.R. Constr. Mgmt., Inc., No. 2:17-cv-55-FtM-38CM, 2018 WL 2945613, at *5 (M.D. Fla. May 25, 2018) ("This district previously has determined that an hourly rate of $225.00 per hour is a reasonable rate for an associate practicing for 9 years in the Fort Myers, Florida Market. . . . [A]s for partners, this Court previously has determined that $400.00 per hour is a reasonable rate in the Fort Myers, Florida market for an attorney with 15 years experience and language skills." (citing Hamprecht v. Hamprecht, No. 2:12-cv-125-FtM-29DNF, 2013 WL 1155675, at *4 (M.D. Fla. Mar. 14, 2013))). Attorney Whitelaw is an attorney practicing in the Fort Myers Division of the Middle District of Florida. Upon consideration, the Undersigned concludes that Attorney Whitelaw's rate of $425 per hour is reasonable for the Fort Myers Division and recommends reducing Attorneys Johnston and Golla's hourly rates to match hers. Thus, the Undersigned recommends awarding all attorneys at a rate of $425 per hour.
As to the rates requested for the paralegals, no evidence has been submitted regarding the paralegals' relevant work experience. This Court recently found that paralegal rates ranging from $85 to $195 were reasonable for the Fort Myers area. Tropical Bees, LLC v. Barka Grp., LLC, No. 2:16-cv-672-FtM-38MRM, WL 2017 WL 7354757, at *5 (M.D. Fla. Apr. 24, 2017); Branch Banking & Tr. Co. v. Park Circle, LLC, No. 2:18-cv-25-FtM-38CM, 2014 WL 3887481, at *4 (M.D. Fla. Aug. 7, 2014) (awarding requested paralegal rate of $110.00 and noting that although "Plaintiff provided no information regarding the paralegals' experience, . . . a review of the time sheet reveals that the paralegals often performed legal rather than clerical tasks"). Based on the rates sought, the type of work completed by the paralegals, and the prevailing market rates, the Undersigned recommends reducing both paralegals' rates to $175.
The second step in the lodestar analysis is determining what hours were reasonably expended in pursuing the action. Fee applicants must exercise "billing judgment" and exclude hours "that would be unreasonable to bill to a client." ACLU of Ga., 168 F.3d at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). "[A] court may reduce excessive, redundant or otherwise unnecessary hours in the exercise of billing judgment." Galdames v. N & D Inv. Corp., 432 Fed. App'x 801, 806 (11th Cir. 2011) (emphasis omitted) (quoting Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988)). "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).
As a preliminary matter, the Undersigned notes that nowhere in Plaintiff's Motion did it provide a calculation of the number of hours expended by each attorney and paralegal. Rather, Plaintiff simply explained each attorneys' and paralegal's hourly billing rate and directed the Undersigned's attention to the attached itemized billing entries. (See generally
Upon review of the time entries, (see Docs. 34-2, 34-3), the Undersigned has identified numerous entries that are block billed and/or vague,
Here, the block-billed entries make up approximately 30% of the total hours billed. Upon consideration, the Undersigned concludes that a 15% across-the-board reduction in the number of hours is warranted here to "offset the ill effects of block billing," Stavrakis, 2018 WL 4908104, at *3, and recommends reducing the number of hours billed by 15%.
With the foregoing findings and the Undersigned's conclusion that the hours billed be reduced by 15% in mind, the Undersigned now computes the lodestar. The attorneys worked a combined total of 89.9 hours. A 15% reduction in those hours equals 76.415. Thus, at a rate of $425 per hour, the attorneys' fees equal $32,476.375. The paralegals worked a combined total of 11.15 hours. A 15% reduction in those hours equals 9.4775. At a rate of $175 per hour, their fees amount to $1,658.5625. Combining the attorney and paralegal sums, the Undersigned therefore recommends awarding a total of $34,134.94 in fees.
In addition to attorneys' fees, Plaintiff seeks the following costs:
(
The Court previously determined Plaintiff's entitlement to costs under 28 U.S.C. § 1920. (
Section 1920 enumerates the following as taxable costs:
Upon review of the requested costs, the Undersigned recommends deducting the pro hac vice fees, totaling $300, because they are not recoverable under § 1920. Maciejczyk v. You Fit, Inc., No. 8:12-cv-1462-T-27MAP, 2013 WL 7186419, at *5 (M.D. Fla. Dec. 12, 2013), report and recommendation adopted, No. 8:12-cv-1462-T-27MAP, 2014 WL 585067 (M.D. Fla. Feb. 12, 2014) (disallowing requested costs for pro hac vice fees). Thus, the Undersigned recommends awarding costs in the amount of $990.
Accordingly, for the reasons explained above, the Undersigned
Respectfully recommended in Chambers in Fort Myers, Florida on January 7, 2019.
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file 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. See