REPORT AND RECOMMENDATION

THOMAS G. WILSON, Magistrate Judge.

In this diversity case, the plaintiff filed this lawsuit alleging a breach of a commercial property lease by the defendant with respect to failing to put, keep, maintain, and repair the leased premises and leased equipment in a first class condition as required by the lease (Doc. 2).1 After a bench trial, the court found in favor of the plaintiff (Doc. 86). Judgment, therefore, was entered for the plaintiff (Doc. 87). The court retained jurisdiction over any motions for attorneys' fees and costs (Doc. 86, p. 65).2 Thereafter, the plaintiff filed its Corrected Amended Final Motion for Attorneys' Fees, Costs and Prejudgment Interest and Incorporated Memorandum of Law (Doc. 135). The motion was referred to me for a report and recommendation (Doc. 136). Having considered the materials submitted and the governing legal standards, I recommend that the plaintiff be awarded $921,501.00 in attorneys' fees, $39,783.12 in costs, and prejudgment interest accruing at a rate of 18 percent. I also recommend that the prejudgment interest rate begins to accrue from March 11, 2016, on $728,638.00 in district court fees, with the interest accruing from July 3, 2017, on $192,863.00 in appellate fees.

I.

In May 2014, the plaintiff, Apple Glen Investors, L.P. ("Apple Glen"), filed suit against the defendant, Express Scripts, Inc. ("ESI"), in Hillsborough County Circuit Court, asserting a breach of a contract claim that the defendant had not properly maintained the leased equipment and the leased premises as required by the lease (Doc. 2). The basis for the lawsuit was that the defendant did not properly maintain or repair the leased premises, or, the leased equipment (id.). The defendant then removed the case to this court (Doc. 1).

As indicated, a bench trial was held and judgment was entered against the defendant (Docs. 86, 87). Thus, District Judge Virginia M. Hernandez Covington entered Findings of Fact and Conclusions of Law on March 10, 2016 (Doc. 86). The defendant was found to have breached the commercial lease agreement with respect to the leased equipment and the leased premises (id.). A final judgment of $4,654.688.65, plus prejudment interest, was entered against the defendant with the court reserving jurisdiction over the matter of attorneys' fees and costs (Docs. 86, 87). The court also concluded that the plaintiff was "the prevailing party and entitled to attorneys' fees and costs incurred to enforce the terms of the lease and under applicable law" (Doc. 86, p. 64).

Thereafter, on April 7, 2016, the defendant filed a Notice of Appeal as to this court's Findings of Fact and Conclusions of Law (Doc. 88). On April 11, 2016, the plaintiff filed a motion for attorneys' fees and costs (Doc. 91). An Order was entered denying without prejudice the plaintiff's motion for attorneys' fees and costs with leave for the plaintiff to re-file its motion after the entry of a mandate by the Eleventh Circuit Court of Appeals (Doc. 92). Subsequently, the Eleventh Circuit remanded the case in order for this court to determine the amount of prejudgment interest on the judgment award (Doc. 98). The plaintiff then filed a Renewed Motion to Determine Amount of Prejudgment Interest and for Entry of Final Judgment and Memorandum of Support (Doc. 100). On September 8, 2016, an Order was entered granting the plaintiff's motion and determining that judgment be entered in favor of the plaintiff in an amount of $6,284,465.25, which included $4,654,688.65 in damages and $1,629,776.60 in prejudgment interest (Doc. 104). An amended judgment was entered accordingly (Doc. 105). On September 22, 2016, the plaintiff then filed a Renewed Motion for Attorneys' Fees and Costs and Supporting Memorandum of Law (Doc. 106). Thereafter, on October 7, 2016, the defendant filed a Notice of Appeal (Doc. 107). On the same day, this court entered an Order denying without prejudice the plaintiff's motion for attorneys' fees and costs, but with leave for the plaintiff to re-file the motion after the entry of a mandate by the Court of Appeals (Doc. 108).

On July 6, 2017, the Eleventh Circuit affirmed this court's decision (Doc. 115). On October 23, 2017, the plaintiff filed a notice regarding its application for attorneys' fees on appeal (Doc. 117). The next day, the plaintiff filed a Motion for Attorneys' Fees, Costs and Prejudgment Interest (Doc. 118). The plaintiff's motion was referred to me for a Report and Recommendation (Doc. 126). Thereafter, I entered a Scheduling Order with respect to the plaintiff's motion for attorneys' fees, costs, and prejudgment interest (Doc. 129). The Eleventh Circuit then granted the appellee's motion to transfer the issue of attorneys' fees on appeal to this court (Doc. 130). The plaintiff's motion for attorneys' fees on appeal was also referred to me for a Report and Recommendation (Doc. 133).

On December 18, 2017, the plaintiff filed a Corrected Amended Final Motion for Attorneys' Fees, Costs and Prejudgment Interest and Incorporated Memorandum of Law (Doc. 135). Subsequently, District Judge Hernandez Covington entered an Order denying the plaintiff's prior motions for attorneys' fees and costs as moot, and referring the plaintiff's current motion for attorneys' fees, costs, and prejudgment interest to me for a Report and Recommendation (Doc. 136). The defendant filed a supplemental memorandum of law in opposition to the plaintiff's motion for attorneys' fees, costs, and prejudgment interest (Doc. 138).3 The defendant was permitted to supplement its opposition memorandum and also filed an expert affidavit (Doc. 142). Thereafter, the plaintiff filed a reply memorandum (Doc. 143). Subsequently, the plaintiff was given an opportunity to file an expert affidavit regarding the defendant's contention that attorneys' fees should be reduced because the plaintiff only "prevailed on 17 of 29 claims" (Doc. 144). The plaintiff was also directed to submit a memorandum with documentation regarding any additional fees it was seeking (id.). In that Order, the defendant was given an opportunity to file an objection to the remainder of the requested attorneys' fees (id.). The plaintiff subsequently filed a Closing Attorneys' Fees Memorandum, indicating that it is not seeking additional fees unless an evidentiary hearing is held, and asserting that it has already shown that the defendant's opposition is flawed (Doc. 145). The defendant has also submitted its Closing Memorandum (Doc. 146). The plaintiff seeks $1,092,841.00 in attorneys' fees, prejudgment interest of $420,908.46 (calculated through April 30, 2018, increasing $538.94 per day until a final judgment is entered), and $39,783.12 in costs (Doc. 145, p. 3).

II.

As indicated, District Judge Hernandez Covington concluded that the plaintiff "is the prevailing party and entitled to attorneys' fees and costs incurred to enforce the terms of the lease and under applicable law" (Doc. 86, p. 64). Thus, the lease states (Doc. 4-3, p. 26, ¶ 21(d)):

Both parties agree that Florida law applies to the determination of the amount of the attorneys' fees (see Doc. 135, p. 17; Doc. 138, p. 3). Understandably, the defendant does not argue against the plaintiff's entitlement to fees, only the amount of fees requested (see Docs. 138, 142).

Florida has adopted the federal lodestar approach as the foundation for setting reasonable fee awards.4 Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985); Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 406 (Fla. 1999). This method requires the court to determine a "lodestar figure" by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney. Bell v. U.S.B. Acquisition Co., Inc., supra. 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. The Housing Authority of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988); Florida Patient's Compensation Fund v. Rowe, supra, 472 So.2d at 1150-51.

In computing the lodestar amount, the following factors, enumerated in Rule 4-1.5 of the Rules Regulating the Florida Bar, are to be considered (Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 830-31 n.3 (Fla. 1990)):

Notably, neither party has developed any argument based upon these factors.

After the lodestar is determined, the court considers whether there should be an adjustment for results obtained. Norman v. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1302. However, there is a strong presumption that the lodestar is a reasonable fee. Bivins v. Wrap It Up. Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).

A. Hourly Rates

A court must determine a reasonable hourly rate for the services of the prevailing party's attorney. In Florida Patient's Compensation Fund v. Rowe, supra, 472 So.2d at 1150-51, the Florida Supreme Court stated:

Further, "[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. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1303.

The plaintiff was represented by two law firms, Shutts & Bowen, LLP, located in Tampa, Florida, and Leeuw Oberlies & Campbell, P.C., located in Indianapolis, Indiana. Timothy D. Woodward ("Woodward") from Shutts & Bowen, LLP, was lead counsel in the matter. Plaintiff's counsel have submitted their billing records (see Doc. 135, Ex. 1.1, pp. 47-249; Ex. 1.2, pp. 250-295). The Tampa law firm requests $1,043.318.50 in attorneys' fees.5 The Indiana Firm requests $49,522.50 in attorneys' fees. The plaintiff, therefore, seeks a total amount of $1,092.841.00 in attorneys' fees. In support of the requested hourly rates, counsel have included affidavits from Woodward and Gene R. Leeuw ("Leeuw") from the law firm of Leeuw Oberlies & Campbell, P.C. (Doc. 135, Ex. 1; Doc. 135-1, Ex. 2). Plaintiff's counsel has also submitted an expert report and affidavit along with two supplemental expert reports and affidavits from expert David M. Caldevilla ("Caldevilla"), in support of the requested fees (Doc. 135-1, Exs. 3.1, 3.2, 3.3).

To counter the requested fees, the defendant submitted an expert affidavit from Kenneth G. Turkel ("Turkel") regarding the reasonableness of the requested fees (Doc. 142). Notably, the defendant's expert, Turkel states that "[b]ased upon [his] review and analysis, the hourly rates charged by the attorneys and paralegal[s] were reasonable" (id., p. 8). In the defendant's most recent memorandum in opposition to the plaintiff's motion for fees, the defendant does not argue that the hourly rates charged by plaintiff's counsel, or the paralegals, are unreasonable (see Doc. 138). Consequently, there is no dispute regarding the requested hourly rates.

Nevertheless, brief comments regarding the requested hourly rates are appropriate. Plaintiff's counsel set forth the requested hourly rates and fees by dividing the case into four phases.6 Therefore, the same will be done here when discussing the hourly rates in connection with the reasonableness of the billed hours. It is noted that, as the case progressed, some attorneys' hourly rates were increased. However, as indicated, there has been no objection to the requested hourly rates.

Timothy D. Woodward

Woodward is lead counsel in this matter and developed the plaintiff's case plan and made all major strategy decisions (Doc. 135, p. 5). Woodward requests fees based on hourly rates of $365, $385, and $400 (id., pp. 8, 11, 12).

In the absence of any objection, I am recommending that hourly rates for Woodward of $365, $385, and $400 are reasonable.

Lonnie L. Simpson

Admitted to the Florida Bar in 1989, Lonnie L. Simpson ("Simpson") is a partner with Shutts and Bowen LLP, and has over twenty-five years of legal experience (Doc. 135, Ex., 1, p. 33, ¶ 26; Doc. 135-1, Ex. 1.4, p. 5). Simpson requests hourly rates of $136.37, $430, $450, and $495 (Doc. 135, p. 9). Woodward explains in his affidavit that Simpson's billing rate began at $495, however, when Simpson's involvement in the case increased, he adjusted his rate to $430 per hour (Doc. 135, Ex. 1, p. 33, ¶ 27). Woodward states that Simpson's current rate remains at $430 per hour (id.). Because there was no objection to Simpson's rates, I recommend that the four requested rates be used.

Suzanne Y. Labrit

Suzanne Y. Labrit ("Labrit") is a partner at Shutts & Bowen LLP since 2003, and has thirty years of legal experience (Doc. 135-1, Ex. 1.4, pp. 13, 14). Labrit requests an hourly rate of $525 for her work done in this case (Doc. 135, p. 11). In this case, Labrit performed work during Phase 2 and Phase 4 with the majority of her work relating to appeal work in Phase 4 (id., pp. 11, 16). Although on the high side, because the hourly rate has not been objected to, I am recommending an hourly rate of $525 for Labrit based on her years of practice and experience.

Lauren A. Taylor

Lauren A. Taylor ("Taylor") is an associate with Shutts and Bowen LLP, and was admitted to the Florida Bar in 2011 (Doc. 135, Ex. 1, p. 32, ¶ 23). Taylor requests hourly rates of $235 for 2014, $250 for 2015, and $270 for 2016 and continuing thereafter (id.).

I am recommending for Taylor the unchallenged hourly rates of $235 for 2014, $250 for 2015, and $270 for 2016.

Ella A. Shenhav

Ella A. Shenhav ("Shenhav") is an associate with Shutts & Bowen LLP, and is admitted to the Florida Bar (Doc. 135-1, Ex. 1.4, p. 10). Shenhav requests hourly rates of $260, and $270 (Doc. 135, p. 8; Ex. 1, p. 34, ¶ 29). Woodward explains that Shenhav's beginning hourly rate was $260, however in 2015 her rate was increased to $275 (Doc. 135, Ex. 1, p. 34, ¶ 29). Woodward indicates that when he had Shenhav perform work on this case in 2015, and then in 2016 regarding certain tasks she completed on behalf of the plaintiff, he reduced her rate to $270 (id.). Due to lack of objection, I am recommending reasonable hourly rates of $260 and $270 for Shenhav.

Furthermore, with respect to Shenhav's fee, regarding the hours in which she has charged $275, they should be set at $270. According to Woodward, he had adjusted her standard fee from $275 to $270 for work done for the plaintiff (Doc. 135, Ex. 1, p. 34, ¶ 29). However, that downward adjustment is not reflected in the charts submitted by the plaintiff (see Doc. 135, p. 8). Therefore, I have adjusted her fee to $270 for all time charged at the $275 rate. In any event, hourly rates of $260 and $270 are a reasonable hourly fee for an associate in this locale.

Paralegals

Work by paralegals is recoverable "only to the extent that the paralegal performs work traditionally done by an attorney." Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988). See TCC Air Services, Inc. v. Schelsinger, 2009 WL 565516 at *5 (S.D. Fla. 2009) (unpub. dec.) (identifying paralegal tasks such as researching, shepardizing caselaw, digesting and indexing depositions and interviewing clients). Costs associated with clerical tasks are overhead expenses which are not compensable in the attorneys' fees award. Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982).

In this regard, Woodward represents that he used experienced "paralegals to organize, manage and generally make effective use of the substantial quantity of documents collected and produced in discovery" (Doc. 135, Ex. 1, p. 34, ¶ 30). Woodward explains that "[his] work is typically document-intensive which requires significant paralegal support, database creation and maintenance to manage the large volumes of data records (id.). Woodward states he used the paralegals that bill at lesser rates in order to analyze efficiently and identify key records (id.). Woodward explains that he set the paralegals' rates based on the "subject-matter experience, time in practice and the complexity of the tasks [he] anticipated [they] would perform" (see, e.g., id., p. 35). Therefore, the plaintiff may recover the fees that have been charged by the paralegals. See Jean v. Nelson, supra, 863 F.2d at 778 (work by paralegals is recoverable "only to the extent that the paralegal performs work traditionally done by an attorney").

Evelyn A. Ward

Woodward avers that Evelyn Ward ("Ward") has over thirty years of paralegal litigation experience (Doc. 135, Ex. 1, p. 34, ¶ 30). Ward has a Bachelor of Arts degree, a Masters Degree in Library and Information Sciences, and a paralegal certificate (id., pp. 34-35). Ward explains that the initial billing rate for Ward was $210 per hour, but then it was later increased to $225 per hour (id., p. 35).

Katherine A. Kobos

Woodward attests that Katherine A. Kobos ("Kobos") is a Florida registered paralegal with more than 34 years of experience pertaining to commercial and construction litigation matters (Doc. 135, Ex. 1, p. 35, ¶ 30). Woodward states that he initially set her billing rate at $200 per hour, but then later increased it to $225 (id.).

Tina M. Rosenberger

A Florida registered paralegal Tina M. Rosenberger ("Rosenberger") has more than 16 years of experience in appellate practice and complex litigation matters (Doc. 135, Ex. 1, p. 35, ¶ 30). Woodward set Rosenberger's billing rate at $210 per hour, but then later adjusted it to $225 per hour (id.).

Kendra C. Gau

Kendra C. Gau ("Gau") is a litigation paralegal for Shutts and Bowen LLP with fifteen years of experience in commercial litigation and construction matters (Doc. 135, Ex. 1, p. 35, ¶ 30). Woodward set Gau's hourly rate at $180 (id.).

The hourly rates for the paralegals in this case are significantly higher than I usually award. However, the defendant and the defendant's expert did not dispute the requested fees. Accordingly, the hourly rates billed by the paralegals should be used.

Indiana Attorneys

The plaintiff was also represented by the law firm of Leeuw Oberlies & Campbell, P.C., located in Indianapolis, Indiana. Attorneys Gene R. Leeuw, John M. Mead, and Janis E. Steck provided work in this matter during Phase 1 of the case. The firm has provided time records and an affidavit from Gene R. Leeuw ("Leeuw") regarding the reasonableness of fees (Doc. 135-1, Ex. 2, pp. 23-25, 26-56). Leeuw, a shareholder in the firm, avers that he is "fully familiar with the proceeding relating to the instant action and make[s] this affidavit of my own personal knowledge and based upon the business records of Leeuw Oberlies & Campbell, P.C." (id., p. 23, ¶ 1). Leeuw states that "[t]he hourly rates charged by the Leeuw Oberlies & Campbell, P.C., attorneys who worked on this case are reasonable for similarly experienced attorneys for this type of litigation and in this locale" (id., p. 24, ¶ 5). Leeuw "believe[s] that the attorney's fees, costs and expenses were necessary, reasonably incurred and are reasonable in amount" (id., p. 24, ¶ 4). The Indiana firm requests $49,522.50 in attorneys' fees, representing 181.9 hours of work (Doc. 135-21, Ex. 2, p. 24, ¶ 3).

Gene R. Leeuw

As indicated, Leeuw is a shareholder in Leeuw Oberlies & Campbell, P.C. (Doc. 135-1, Ex. 2, p. 23, ¶ 1). Leeuw conducted various work in this case during Phase 1, but limited to drafting the pretrial statement, reviewing and editing a response to the defendant's summary judgment motion, analyzing defendant's experts' reports, and drafting discovery responses (see, e.g., id., pp. 26, 30, 37, 38, 44). Leeuw requests an hourly rate of $275 (id., p. 24, ¶ 3).

John M. Mead

John M. Mead ("Mead") is a partner in the law firm of Leeuw Oberlies & Campbell, P.C. (Doc. 135-1, Ex. 2, p. 24, ¶ 3). Mead's work consisted of reviewing and revising discovery responses and the pretrial statement, researching the issue pertaining to splitting the cause of action, conferencing with the attorneys in Tampa, reviewing defendant's expert reports, researching and drafting a summary judgment motion, and other various work (see, e.g., id., pp. 26, 27, 32). Mead requests an hourly rate of $275 (id., p. 24, ¶ 3).

Janis E. Steck

Janis E. Steck ("Steck") is an associate with the law firm of Leeuw Oberlies & Campbell, P.C. (Doc. 135-1, Ex. 2, p. 24, ¶ 3). Steck performed work on this case, including drafting a summary judgment motion and working on discovery matters (see, e.g., id., pp. 32, 56). Steck requests an hourly rate of $225 (id., p. 24, ¶ 3).

With respect to the attorneys from the Indiana law firm, I have concluded that reasonable hourly rates are as follows: Leeuw — $275; Mead — $275; and Steck — $225. Significantly, the defendant and its expert have not asserted an objection to the hourly rates charged. Further, the rates of $275 and $225 are clearly reasonable.

B. Hours Expended

Florida courts also calculate the number of hours reasonably expended on litigation. In this regard, "the attorney fee applicant should present records detailing the amount of work performed . . . Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary." Florida Patient's Compensation Fund v. Rowe, supra, 472 So.2d at 1150. The fee opponent then "has the burden of pointing out with specificity which hours should be deducted." Centex-Rooney Const. Co., Inc. v. Martin County, 725 So.2d 1255, 1259 (Fla. Dist. Ct. App. 1999); see also Norman v. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1301.

1. The plaintiff in this case seeks compensation for 3,275.20 hours of legal work on this matter, comprising hours billed by attorneys and by paralegals (Doc. 135, pp. 8-13, 16). This encompasses work pertaining to the breach of contract litigation, including a bench trial and two appeals (see id., p. 3).

Specifically, the attorneys seek compensation for the following number of hours: Woodward — 686.5 hours; Simpson — 639.9 hours; Labrit — 164.9 hours; Taylor — 941.2 hours; Shenhav — 39.6 hours; Leeuw — 84.9 hours; Mead — 87 hours; and Steck — 10 hours (Doc. 135). Additionally, the plaintiff seeks reimbursement for the following hours by paralegals: Ward — 395.2 hours, Rosenberger — 119.5 hours, Kobos — 93.6 hours, and Gau — 12.9 hours (id.).

As indicated, in support of the requested hours, the plaintiff has submitted the affidavits of its fee expert, Caldevilla (Doc. 135-1, Exs. 3.1, 3.2, 3.3). Caldevilla opines that, "the time entries were generally within the range of time that I would normally expect to see in a lawsuit of this nature" (id., Ex. 3.1, p. 63, ¶ 11; Ex. 3.2, p. 74, ¶ 11; Ex. 3.3, p. 86, ¶ 17). Caldevilla states that he "[found] some exceptions, where it is [his] opinion that a reduction of time billed on particular time entries would be appropriate to constitute a reasonable amount of time" (Doc. 135-1, Ex. 3.1, p. 63, ¶ 11; Ex. 3.2, p. 74, ¶ 11; Ex. 3.3 p. 86, ¶ 17). However, Caldevilla identifies some hours that should be deducted, but does not clearly explain them so that there can be an evaluation of the appropriateness of the reduction (see, e.g., Doc. 135-1, Ex. 3.1, p. 63, ¶ 12). Caldevilla explains that certain reductions should be made, but not limited to the requested number of hours of

(Doc. 135-1, Ex. 3.1, p. 63, ¶ 11; see also Ex. 3.2, p. 74, ¶ 11; Ex. 3.3, p. 86, ¶ 17).

In this respect, Woodward avers that he "personally review[ed] all Shutts personnel time and tasks entries on a draft in invoice or `prebill' before those entries [were] finalized in an invoice to be forwarded to the client" (Doc. 135, Ex. 1, p. 28, ¶ 10). Woodward attests he

(id., ¶ 11). Woodward further states he "eliminated such [time] entries or reduced the time recorded and amount due" and that "[his] adjustments reduced the total amount of fees due before the entries were finalized in an invoice" (id.).

Woodward states he "reviewed every time and task entry for which Shutts billed Apple Glen a second time" (id., p. 29, ¶ 12). Woodward explains he "evaluated the reasonableness of each billing entry for purposes of seeking reimbursement from ESI" (id.). Woodward further attests he

(id.).

Leeuw also submitted an affidavit in which he attests to the reasonableness of the hours billed by the attorneys in Indiana (Doc. 135-1, Ex. 2). Leeuw attests that he "reviewed the billing file to determine the total fees and costs" generated from his firm (id., p. 23, ¶ 2). Leeuw "believe[s] that the attorney's fees, costs and expenses were necessary, reasonably incurred and are reasonable in amount" (id., p. 24, ¶ 4).

Those representations of the exercise of billing judgment are given weight in this case. Caldevilla's affidavit states that "[t]he representation was performed on an hourly basis, with monthly billing and payment by the Plaintiff' and "that the Plaintiff has already paid 100% of the attorneys' fees and costs billed by Plaintiff's counsel, as reflected on all of the invoices" (Doc. 135-1, Ex. 3.1, p. 62, ¶ 9). Thus, where the plaintiff has paid almost one million dollars in attorneys' fees, the claim of the exercise of real billing judgment is persuasive. This situation is distinct from the many motions for attorneys' fees based upon statutory provisions that do not involve any outlay by the plaintiff so that a claim of the exercise of billing judgment warrants close scrutiny.

2. There are two disputed issues between the parties concerning counsel's claimed hours. The plaintiff claims it is entitled to recover the reasonable fees for all hours worked based on all phases of the litigation including "recover[ing] fees expended litigation the amount of fees to be awarded" because it prevailed in this single breach of contract case (Doc. 135, p. 18). The defendant, however, argues that the plaintiff should only recoup fees for those hours for work performed on the successful claims regarding the breaches of the lease (Doc. 138). The defendant also asserts that Florida law does not permit the recovery of fees for hours spent litigating the amount of attorneys' fees (Doc. 128, pp. 3-4).

"A request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Therefore, when faced with a voluminous billing record as is the case here, the court has two choices if it "finds the number of hours claimed is unreasonably high": it "may conduct an hour-by-hour analysis or it may reduced the requested hours with an across-the-board cut." Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008); see, e.g., Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001) (569.30 hours is extensive enough that the district court is not expected to conduct an hour-by-hour analysis of the billing records).

In this case, an in-depth analysis of the voluminous pages of time records would clearly be a waste of judicial resources. See Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). Moreover, neither party has indicated that such an approach is warranted.

The plaintiff submits that as a prevailing party involving a single breach of contract case, it is entitled to all fees it seeks (Doc. 135). The defendant counters that the plaintiff "did not prevail on all separate and distinct claims, [and] the court should deduct fees for time spent on discrete and unsuccessful claims when determining the reasonable hours for a fee award" (Doc. 138, p. 4).

The defendant explains that the plaintiff "alleged 26 specific, itemized deficiencies in the leased premises and three general claims for damages based on ESI's breach of the lease [and] [the plaintiff] prevailed on 17 of those claims" (id.). To support its theory, defense expert Turkel argues for a reduction of fees in his affidavit. Turkel explains that the plaintiff "prevailed on 17 of 29 claims (58%) and recovered $4,654,688.65 of the $6,809,353.10 it sought in damages, 68% of the value of its claims" (Doc. 142, pp. 8-9, ¶ 21). Turkel, therefore, opines that "the overall fee award should be reduced by 32%" and in his opinion, "a reasonable attorneys' fee for [the plaintiff] is $743,131.88" (id., p. 9, ¶¶ 22, 23).

The defendant makes a similar argument in its supplemental memorandum (Doc. 138, p. 2). However, it contends that the plaintiff should not be awarded more than 65% of the fees claimed, which in other words is a 35% reduction.

The plaintiff persuasively argues that this approach was rejected by the Eleventh Circuit in Yellow Pages Photos, Inc., v. Ziplocal, LP, 846 F.3d 1159 (11th Cir. 2017). In Yellow Pages Photos, Inc., the plaintiff, after prevailing on a claim of a violation of a licensing agreement, sought attorney's fees as a prevailing party. The district court, after determining a lodestar amount of approximately $924.000, reduced the award by 92.5% based on the plaintiff's relatively small degree of success. The court of appeals concluded that the reduction was in error. The court explained (846 F.3d at 1164):

In light of that decision, the defendant's argument that the plaintiff's fee award should be reduced by the percentage either of the number of items of damages that were accepted by the court, or the amount of damages that were awarded is unavailing.

On the other hand, the Eleventh Circuit stated that "it is appropriate to alter the lodestar to reflect attorney success or the lack thereof." Id. The court added that "[a] comparison of damages sought to the damages received is an appropriate measurement of the relative success of litigation." Id. A review of the court's Findings of Fact and Conclusions of Law demonstrates that the plaintiff's damages claim was not fully successful. Consequently, "it is appropriate to alter the lodestar to reflect" that lack of success. Id.

Defense expert Turkel opines that "[b]ased on [his] review of the documents and evidence filed in this case, [the plaintiff] alleged 26 specific, itemized deficiencies in the leased premises and three general claims for damages based on [the defendant's] breach of the leases" (Doc. 142, p. 6, ¶ 11). Turkel states that the plaintiff "prevailed on 17 of those claims" and that "[a]t trial each deficiency stood on its own and the court made findings of fact and reached conclusions of law on each deficiency as to whether it constituted a breach of the lease." (id.). Defense expert Turkel asserts further that the claims were not inextricably interviewed as evidenced by the fact that each deficiency was the subject of expert testimony on both sides, and [the] court addressed each deficiency individually in its findings of fact and conclusions of law." (id.).

The plaintiff counters that it "pursued on `discrete and unsuccessful claim' at trial or on appeal" (Doc. 143, p. 4). The plaintiff, citing Hensley v. Eckerhart, argues that the "[e]xamples of [the defendant's] deficient performance of its maintenance obligations are not `distinctly different claims for relief that are based on different facts and legal theories' where `counsel's work on one claim [is] unrelated to his work on another claim'" (id.; supra, 461 U.S. at 434-35). According to the plaintiff, its "single breach-of-contract claim is based on a single theory, turns on a central core of facts and is the only claim to which [the plaintiff's] counsel devoted time" (Doc. 143, p. 4).

While the plaintiff alleged only one basic breach of contract claim, the parties and the court subsequently separated out distinct sub-claims involving items of damage. These distinct items of damage easily permit an assessment of the success of the plaintiff's counsel. And, as indicated, "[a] comparison of damages sought to the damages received is an appropriate measurement of the relative success of litigation." Yellow Pages Photos, Inc. v. Ziplocal, LP, supra, 846 F.3d at 1164. Under that criterion, plaintiff's counsel were less than completely successful. Accordingly, "it is appropriate to alter the lodestar." Id.

As previously explained, an arithmetical reduction is not permitted. However, a reasonable across-the-board reduction is warranted.

More specifically, it is not reasonable for the plaintiff to recover all hours billed for Phase 1 of the case, when some of the billed hours could have been separated based on the different breaches of the lease. Thus, the hours spent on the damage claims could have been separately billed or at least identified in the billing records. If that had been done, then time spent on unsuccessful damage claims could have been eliminated. And if that had been done, the defendant could have validly objected to time spent on the losing damage claims, rather than having to assert a reduction based on meritless arithmetical formulas. Because the plaintiff has made no attempt to parcel out the hours or the fees for work performed on these unsuccessful matters, some adjustment of the fees is warranted. In light of the fact that the plaintiff was somewhat unsuccessful on its damage claims, I recommend that there be a reduction of twenty percent of the requested attorneys' fees with respect to Phase 1.

That reduction is also supported by a sampling of every one hundredth entry of billed hours. That sampling reflects that the billed hours include block billing, redacted portions of the billed hours that could not be analyzed, and work that was double billed for the same work by different attorneys.

Notably, I am recommending that a reduction of time should be made solely with respect to Phase 1 of the fees. The defendant argues for a total reduction of all fees claimed (see Docs. 138, 146). However, the defendant's argument focuses on the plaintiff's percentage of success rate with respect to the various breaches of the lease at issue in the bench trial in this case. That argument, as previously explained, is unavailing.

An across-the-board cut on all phases of this case is inappropriate in this circumstance because the three other phases for fees were not based on trial matters. The defendant's argument for a reduction in time focuses on the plaintiff's success rate during the bench trial, which has no bearing on the other aspects in this case relating to work performed after the bench trial, including the appeals phase. I, therefore, recommend that a reduction of time be made only with respect to the attorneys' fees incurred during Phase 1 of the case.7

Notably, because the 20% reduction is only being applied to the fees requested in connection with Phase 1, the overall reduction rate for the entire fee request is approximately 15%. Thus, the fees requested were $1,092.841.00 and the fees recommended to be awarded are $921,501.00, so that there was a reduction of $171,340.00. Consequently, the overall reduction was about 15%.

3. Another issue raised by the defendant with respect to counsel's claimed fees is its argument that, under Florida law, attorneys are not entitled to recoup fees for litigating the amount of an attorneys' fee award (Doc. 128, pp. 3-4). The plaintiff counters that based on the lease's prevailing party provision, that not only "is [it] entitled to recover attorneys' fees for time spent litigating entitlement to a fees award," but also to "fees expended litigating the amount of fees to be awarded" (Doc. 135. p. 18). Thus, the plaintiff claims that paragraph 21 (d) of the lease encompasses recovery of fees for work involving both entitlement and amount (id., pp. 18-19).

The defendant, citing to the Florida Supreme Court case of State Farm Fire & Casualty Co., v. Palma, 629 So.2d 830 (Fla. 1993), argues that plaintiff's counsel is not entitled to recover fees for litigating the amount of attorneys' fees (Doc. 128, pp. 3-4). Thus, the defendant asserts that "[t]he Florida Supreme Court has expressly held that a party recovering an award of attorneys' fees is entitled to recover its fees for litigating the entitelment to attorneys' fees, but not for litigating the amount of the attorneys' fees" (id., p. 3). However, Palma is distinguishable. In Palma, the Florida Supreme Court held, in a case involving Florida statute § 627.428 relating to insurance cases, that attorneys' fees may be awarded for time spent seeking entitlement, but not for time spent litigating the amount of fees. See 629 So.2d at 832-33.

In Palma, the Florida Supreme Court distinguished its decision from federal courts considering fee awards under federal statutes and explains:

629 So.2d at 833. The court stated further:

Id. (internal citation and quotation omitted). The court said: "Our conclusion that statutory fees may be awarded for litigating the issue of entitlement to attorney's fees but not the amount of attorney's fees comports with the purpose of section 627.428 and with the plain language of the statute." Id. Thus, the decision in Palma was based upon the pertinent statute's purpose and language. The court, however, did not indicate that its decision applied to contracts that authorized attorney's fees.

As indicated, the plaintiff asserts under the lease agreement that it "is entitled to recover attorneys' fees for time spent litigating entitlement to a fees award" and "also entitled to recover fees expended litigating the amount of fees to be awarded" (Doc. 135, p. 18). In this respect, the plaintiff relies upon paragraph 21(d), which, for convenience, will be repeated here (Doc. 4-3, p. 26):

This provision permits a prevailing party to recover "any and all reasonable costs and expenses incurred . . . in connection with any litigation or other action instituted . . . to enforce the obligations . . . under this Lease." While this provision does not specify "attorneys' fees," it does broadly permit recovery of "any and all reasonable . . . expenses." Importantly, the defendant does not dispute that attorneys' fees are recoverable under this provision. And, once it is accepted that the provision covers attorneys' fees, there is no language in the provision that would justify limiting an award to work done on the issue of entitlement and exclude work done on the issue of amount.

In support of its argument, the plaintiff cites to two cases involving contracts in which two different Florida district courts of appeal have permitted a party to recover attorneys' fees for litigating the amount of fees: The Waverly at Las Olas Condominium Association, Inc. v. Waverly Las Olas, LLC, 88 So.3d 386 (Fla. Dist. Ct. App. 2012); Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 228 So.3d 1184 (Fla. Dist. Ct. App. 2017). In Waverly, the Florida court held that the "the contractual provision . . . authorize[d] attorney's fees for `any litigation' between the parties under the agreement." The court explained that entitlement to attorneys' fees "can derive only from either a statutory basis or an agreement between the parties." Id. at 389 (internal citation and quotation omitted). The court agreed "that the contractual prevailing party fees provision was broad enough to encompass time spent in litigating the amount of fees, and that Palma's statutory analysis is inapplicable to the contractual basis for fees in this case." Id. The court added: "Unlike Palma, which relied upon a statute and limited fees to those incurred in litigating entitlement, the contractual provision here authorizes attorney's fees for `any litigation' between the parties under the agreement. This language is broad enough to encompass fees incurred in litigating the amount of fees." Id.

Similar to Waverly, this case is distinguishable from Palma, as it does not involve the recovery of attorneys' fees based on a statute, but on a contract instead. It is recognized that the provision in Waverly specifically provided for an award of attorneys' fees. That, however, was not the basis for an award of fees for fees. Rather, it was the breadth of the provision that justified such an award. Here, like the contract in Waverly, the lease agreement's language provides that a party is able to recover "any and all reasonable costs and expenses incurred . . . in connection with any litigation or other action" (Doc. 4-3, p. 26). This language is just as broad, if not broader, than the operative language in Waverly. That decision, therefore, clearly supports the plaintiff's recovery of fees for fees.

This conclusion is further supported by a recent Florida decision of Trial Practices, Inc., v. Hahn Loeser & Parks, LLP, supra. In Trial Practices, Inc., which involved a consulting agreement, the court held that the agreement's language provided for the recovery of fees for litigating the amount of fees. 228 So.3d at 1188. The court, distinguishing its case from Palma, explained Palma involved a statute, but it said its case was like Waverly since it was based upon a contract. Id. Consequently, the consulting agreement's broad language of "`all expenses of any nature incurred in any way'" permitted the recovery of fees on fees. Id.

In this respect, Trial Practices and Waverly support the conclusion that the parties to a contract may agree to the type of recoverable attorneys' fees. Indeed, it is a fundamental principle of contract law that parties may agree to any terms, provided that they are not illegal or in violation of public policy. In light of the federal policy to award fees for litigating the amount of fees, no plausible argument can be made that a provision of fees for fees would be illegal or contrary to public policy.

In this case, the parties agreed that a prevailing party could recover "any and all reasonable costs and expenses incurred . . . in connection with any litigation or other action." Waverly and Trial Practices, Inc., show that this language is broad enough to cover the issue of fees on fees. Therefore, the provision that the parties agreed to should be enforced to award fees for time spent litigating the amount of fees.

To counter the recovery of these fees, the defendant cites to various cases. The defendant argues, for example, that this case is bound by the Eleventh Circuit's decision in McMahan v. Toto, 311 F.3d 1077 (11th Cir. 2002) (Doc. 128, pp. 3-4). The defendant argues that the Eleventh Circuit, in McMahan v. Toto, "interpreted the Palma decision as [the] definitive statement of Florida law `that, while attorney's fees incurred for litigating the issue of entitlement to attorney's fees are recoverable, fees incurred for litigating the amount of attorney's fees are not.'" (Doc. 128, p. 3).

However, the issue in McMahan v. Toto, involved whether attorney's fees were recoverable in litigating the amount of fees with respect to offers of settlement under Florida Statute § 768.79. 311 F.3d at 1086. In declining a recovery of those fees, the Eleventh Circuit explained that "the purpose [of Fla. Stat. § 768.79] does not include encouraging the representation of indigents and does not support an award of attorney's fees incurred litigating the amount of those fees." Id. The Eleventh Circuit further stated "the Florida Supreme Court has explained that whether attorney's fees should be awarded for litigating the amount of fees due depends on the purpose of the statute under which the fees are sought; it does not depend on the method of calculating them." Id. Therefore, the decision in McMahan v. Toto regarding the recovery of fees was based upon Florida Statute § 768.79, and is not applicable to this contract case.

Unquestionably, there are cases that support the defendant's position on this issue. However, in light of the defendant's failure to dispute that the relevant lease provision justifies an award of some attorneys' fees, and the breadth of the language of that provision, Waverly, and Trial Practices, Inc. are the most persuasive authorities.

However, in all events, it seems to me that this issue is moot. The defendant has not identified any specific hours that were expended on litigating the fees for fees issue, nor has it even stated some general amount that should be excluded for work on that issue. Because the defendant has not provided any basis for determining an amount that should be reduced in connection with litigation for fees on fees, this failure constitutes an additional reason why the fees on fees challenge is unavailing.

4. The plaintiff requests $111,524.50 for fees for Phase 2 (Doc. 135, pp. 10-11). The work in this phase consisted of various matters including, the issue of prejudgment interest, the supersedeas bond, and the attorneys' fee motion (see id., p. 10). There appears to be no specific objection to the amount of fees requested in this section, other than a reduction based on seeking fees on fees. In any event, any argument that could be made regarding these fees has been addressed in connection with the other arguments and need not be repeated here. Therefore, I am recommending that no reduction of time be made with respect to Phase 2, and that the plaintiff is entitled to recover $111,524.50 in attorneys' fees.

5. In Phase 3, the plaintiff seeks $111,708.50 in fees for work performed in various matters including seeking attorneys' fees and negotiating with the defendant regarding the supersedeas bond (Doc. 135, p. 12). The defendant has not asserted specific objections to work performed in this category other than the matter with respect to the plaintiff being able to recover attorneys' fees in seeking fees. As previously discussed, that challenge fails.

I am recommending that the plaintiff be awarded its fees for this phase, except in a reduced amount. With respect to the calculation of Phase 3 fees, there appears to be a miscalculation. According to the plaintiff's chart, it requests a fee of $92,192.00 for Simpson's work of 130.70 hours at a rate of $430 per hour (id., p. 12). However, $430 multiplied by 130.70 equals $56,201.00 and not $92,192.00. In the plaintiff's memorandum this miscalculation has not been explained. Therefore, I will use $56,201.00 for that entry in determining the fees for Phase 3.

Furthermore, an Order was entered directing the plaintiff to supplement its fee motion as it did not indicate the full amount it was seeking (see Doc. 144). The plaintiff, thereafter, filed a Closing Attorneys' Fees Memorandum and indicates that it "will limit its fee request to the $1,092,841.00" (Doc. 145, p. 3). Therefore, the plaintiff has not submitted additional fees to be recovered. Accordingly, I recommend that the plaintiff be awarded $75,717.50 in attorneys' fees for Phase 3.

6. The plaintiff has incorporated in its request for attorneys' fees work performed during the two appeals in this case (Doc. 135, pp. 14-17). Phase 4 consists of the time period of April 2016 through November 2017 (id., p. 14). The plaintiff seeks $192,863.00 in fees. The defendant has not asserted a valid objection to the plaintiff's recovery of attorneys' fees regarding this stage of the case (see Docs. 128, 146). The main thrust of the defendant's objection regarding this phase relates to the calculation of prejudgment interest with respect to these fees (see Doc. 128, pp. 7-12). The matter of prejudgment interest will be discussed in a separate section. Because the defendant did not assert a valid objection to the amount of attorneys' fees regarding appellate work, I recommend that the plaintiff's motion with respect to the requested amount of these fees be granted.

As indicated, there were two phases of the appeals process in this case. In March 2016, after this court entered judgment for the plaintiff, the defendant appealed the decision and the judgment (Doc. 88). Thereafter, on July 8, 2016, the United States Court of Appeals for the Eleventh Circuit, remanded the case to this court (Doc. 98). According to the Eleventh Circuit, it "lack[ed] jurisdiction over th[e] appeal" because "[t]he district court's judgment awarded prejudgment interest to Apple Glen, but did not determine the amount of that interest, and the parties agree that this determination is not purely ministerial" (id., p. 2). The Eleventh Circuit, therefore, dismissed the appeal and remanded the case "to the district court, so that it may determine the amount of prejudgment interest" (id.). The Eleventh Circuit also indicated

On October 7, 2016, the defendant again filed a Notice of Appeal of the judgment (Doc. 107). On July 3, 2017, the Eleventh Circuit affirmed the district court's decision (Doc. 115). Thereafter, the plaintiff on October 23, 2017, filed a Notice of Filing Appellee's Application for Attorneys' Fees on Appeal (Doc. 117). Subsequently, on December 4, 2017, the Eleventh Circuit granted the Appellee's Motion to Transfer Consideration of Attorneys' fees on Appeal to the District Court (see Doc. 130). After the plaintiff filed its current motion for attorneys' fees and costs, which includes a request for fees incurred during the appeals stage, the plaintiff's motion titled as the Appellees' Application for Attorneys' Fees on Appeal was denied as moot (Doc. 136).

The plaintiff as the prevailing party on appeal is entitled to attorneys' fees. The defendant does not contend otherwise.

In its supplemental memorandum of law, the defendant did not assert a specific objection that counsel's billed hours or requested amount of fees are unreasonable, or should be reduced (see Doc. 138). Although the defendant asserts a brief statement that counsel's "invoices reflect large block time entries, including one for 11.3 hours, and unreasonable amounts of time spent on other matters unrelated to [the] issues raised on appeal" it does not substantiate those claims (Doc. 128, p. 3). Indeed, the defendant had the opportunity to file its supplemental memorandum, but did not develop this argument. Because the defendant did not develop this argument, or, identify the 11.3 hours, or other hours that should be deducted, this argument is forfeited8 (see Doc. 129, p. 3) ("All time entries, rates, or costs not specifically objected to with a cogent explanation are subject to being granted"). Therefore, I recommend that the plaintiff's requested amount of $192,863.00 be awarded for the appeals.

For the foregoing reasons, the lodestar calculations are as follows:

Phase 2 Attorneys' Fees (December 21, 2015 through August 31, 2016):

Phase 3 Attorneys' Fees (September 9, 2016, through Present):

Appeals Phase 4 Attorneys' Fees (April 2016 through November 30, 2017):

Based on the calculation, I recommend that a reasonable fee to be awarded is $921,501.00.

III.

The defendant does not dispute that the plaintiff is entitled to prejudgment interest on the attorneys' fee award (see Doc. 128, pp. 7-11). Rather, the defendant raises various arguments with respect to the calculation of the prejudgment interest rate (see id). It is noted that the parties are in agreement with respect to some matters concerning the prejudgment interest.

The plaintiff is entitled to an award of prejudgment interest from the date entitlement is established. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 931 (Fla. 1996); See Barron Chase Securities, Inc. v. Moser, 794 So.2d 649, 650 (Fla. Dist. Ct. App. 2001) ("Interest on an attorney's fee award begins to accrue from the date entitlement to the fee is determined"). Both parties agree that, with respect to the attorneys' fees that have accrued in this court, the starting calculation date of the prejudgment interest on those fees is March 11, 2016, the day judgment was entered for the plaintiff (Doc. 87; Doc. 128, p. 7; Doc. 135, p. 21).

The defendant purports to raise an argument regarding the calculation of prejudgment interest on appellate fees (Doc. 128, pp. 7-8). The defendant asserts that "appellate attorneys' fees incurred would accrue prejudgment interest as of the date of the Eleventh Circuit's July 3, 2017 decision, not earlier" (id., p. 7). Citing to a Florida Supreme Court case, the defendant contends that "until the Eleventh Circuit determined that [the plaintiff] prevailed on appeal, it had no right to recover prevailing party appellate attorneys' fees (id.). See Butler v. Yusem, 3 So.3d 1185, 1186 (Fla. 2009) (based on the contract's language "some of the [party's] fees do not warrant prejudgment interest because his entitlement does not arise until he becomes the prevailing party"). This matter is also a nonissue as both parties agree that prejudgment interest regarding the appellate attorneys' fees would not accrue until the Eleventh Circuit's decision dated July 3, 2017 (Doc. 128, p. 7; Doc. 135, p. 22 n. 2).

The defendant asserts various arguments with respect to the interest rate that should be applied in calculating the prejudgment interest. Thus, the defendant argues that "res judicata and collateral estoppel bar relitigation of the interest rate applicable to prejudgment interest on the appellate fee award and the date from which it accrues" and that "the statutory rate for prejudgment interest applies to any appellate fee award not the lease default rate of 18%" (Doc. 128, pp. 8-12). The defendant contends that res judicata and collateral estoppel bar this court from determining a different prejudgment interest rate than the one imposed in state court with respect to attorneys' fees. The plaintiff forcefully counters that "[t]his Court confirmed on September 8, 2016 that the Default Rate applies to Additional Rent that [the defendant] owes [the plaintiff]" with respect to damages (Doc. 135, p. 21; see Doc. 104). The plaintiff, therefore, argues that attorneys' fees and costs are not Basic Rent, but rather Additional Rent under the lease, and therefore, subject to the 18 percent interest rate provided by the lease.

As previously indicated, the Eleventh Circuit remanded the case back to this court to determine the prejudgment interest on the award of damages (Doc. 98). On September 8, 2016, District Judge Hernandez Covington entered an Order regarding the determination of the prejudgment interest and the entry of a final judgment (Doc. 104). While that Order addressed the matter of the interest rate to be applied to the award of damages, it is illogical to think that the same reasoning should not be applied here. The Order addressed fully the issue regarding the calculation of the interest rate, including "that the interest rate provided for in the Lease applies" (id., p. 10). Thus, the Court stated (id., pp. 11-12):

That decision should not be changed here.13 Accordingly, the interest rate that will be applied is the 18 percent as provided for under the lease.

The defendant argues that "attorneys' fees are not `Additional Rent,' [under the lease] and therefore an award of attorneys' fees on appeal does not accrue interest at the Default Rate" (Doc. 128, p. 11). The defendant is incorrect. The defendant acknowledges that the lease defines "Additional Rent" as "all amounts, costs, expenses, liabilities and obligations which Tenant is required to pay pursuant to the terms of this Lease other than Basic Rent" (Doc. 4-3, p. 1; see Doc. 128, p. 11). Therefore, the broad language of "all amounts, costs, expenses, liabilities and obligations" covers attorneys' fees and falls under "Additional Rent" that is subject to an 18 percent interest rate.

In sum, I am recommending that the prejudgment interest rate to be applied to the attorneys' fee award is 18 percent. As agreed by the parties, the interest rate concerning the fees incurred before the district court commences on March 11, 2016, and the interest on appellate fees commences on July 3, 2017.

IV.

The final issue relates to the matter of costs. The plaintiff has requested $39,783.12 in costs which includes $4,518.95 in taxable costs and $35,264.17 in nontaxable costs (Doc. 135, pp. 1, 19-20). The defendant in a memorandum of law objected to the recovery of nontaxable costs (Doc. 128, pp. 4-6).

Pursuant to Rule 54(d), F.R.Civ.P., a prevailing party is entitled to reimbursement of costs enumerated in 28 U.S.C. 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Specifically, the taxable costs are (28 U.S.C. 1920):

It is, moreover, the movant's obligation to describe adequately and substantiate the requested costs. Cf. Norman v. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1303. Similarly, the opponent has an obligation to document with specificity his objections. Cf. ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (objections and proof from fee opponents should be specific and reasonably precise).

In this case, the plaintiff submits that it is entitled to recover all costs under 28 U.S.C. 1920, F.R.Civ.P. 54(d), and under the broad language of the lease agreement (Doc. 135, pp. 19-20). The lease agreement provides that a prevailing party "in connection with any litigation or other action instituted . . . to enforce the obligations of the Paying Party under [the] lease" may recover "any and all reasonable costs and expenses incurred . . . with any litigation" (Doc. 4-3, p. 26, ¶ 21(d)). The use of the words "costs" and "expenses" denotes that there was an agreement that the prevailing party would be entitled to expenses in addition to the costs enumerated in § 1920. Therefore, the plaintiff may recover all costs and expenses. See Yellow Pages Photos, Inc. v. Ziplocal, LP, supra, 846 F.3d at 1165-66; Allison v. Bank One-Denver, 289 F.3d 1223, 1246 (10th Cir. 2002); The Nemours Foundation v. Gauldin, 601 So.2d 574, 576-77 (Fla. Dist. Ct. App. 1992). review denied, 606 So.2d 1166 (Fla. 1992).

As indicated, the defendant in a memorandum of law, objects to the recovery of nontaxable costs, arguing that the lease agreement does not specify that a party is entitled to recover nontaxable costs (Doc. 128, pp. 4-6). While the defendant has cited some legal authority to support its position, as correctly indicated by the plaintiff, the Eleventh Circuit in Yellow Pages Photos, Inc., concluded that pursuant to contractual language a prevailing party may recover costs beyond § 1920. Thus, the Eleventh Circuit held that the contract's language of "attorney's fees and costs" was "broad enough language to cover the award of both taxable and nontaxable costs." 846 F.3d at 1166. Therefore, the plaintiff is able to recover nontaxable costs based on the lease agreement's broad language of "all reasonable costs and expenses."

Unlike the contract in Yellow Pages Photos, Inc., the lease agreement limits an award to reasonable costs and expenses (Doc. 4-3, p. 26, ¶21(d)).14 However, the defendant has not argued that the plaintiff's costs request is not reasonable or identified nontaxable costs that should be disregarded because they are unreasonable (see Doc. 128, pp. 4-6). Indeed, the defendant in its supplemental memorandum of law did not address the matter of costs (see Doc. 138). Notably, the defendant does not identify an appropriate amount to be awarded (Doc. 128, pp. 4-6). Thus, the defendant only asserts that "[i]t is clear that 28 U.S.C. § 1920 does not allow for the recovery of the nontaxable costs that [the plaintiff] seeks to recover" (id., p. 6). Consequently, the defendant's conclusory objection should be disregarded. Cf. ACLU of Georgia v. Barnes, supra, 168 F.3d at 428; see also Doc. 129.

In sum, the defendant has failed to set forth valid objections to the plaintiff's request for costs. Accordingly, I recommend that the plaintiff be compensated for the entire amount of $39,783.12 in costs.

V.

For the foregoing reasons, I recommend that the plaintiff's Corrected Amended Final Motion for Attorneys' Fees, Costs and Prejudgment Interest and Incorporated Memorandum of Law (Doc. 135) be granted to the extent that the plaintiff be awarded an amount of $921,501.00 in attorneys' fees, $39,783.12 in costs, and prejudgment interest accruing at a rate of 18 percent. I also recommended that the prejudgment interest rate begins to accrue from March 11, 2016, on $728,638.00 in district court fees, with the interest accruing on the appellate fees of $192,863.00 on July 3, 2017.

DATED: MAY 25, 2018