MARCIA MORALES HOWARD, District Judge.
Plaintiff initiated the instant action by filing a multi-count complaint against Defendant in Florida state court. Defendant removed the action to this Court and filed a Motion to Dismiss. See Notice of Removal (Doc. No. 1); Defendant Citicorp Trust Bank's Motion to Dismiss and Supporting Memorandum of Law (Doc. No. 6; Motion to Dismiss). On May 16, 2008, 2008 WL 2098040, the Honorable Virginia M. Hernandez Covington, the district judge previously assigned to the case, entered an Order granting, in part, and denying, in part, the Motion to Dismiss. See Order (Doc. No. 22).
In the Complaint, Plaintiff alleged several claims against Defendant in connection with Defendant's management of certain trust assets. Specifically, Plaintiff alleged violations of the Florida Securities and Investor Protection Act (FSIPA), Florida Statutes section 517.301(1)(a) (count one); breach of fiduciary duty and breach of trust (count two); negligence (count three); negligent misrepresentation (count four); and fraud in the inducement and unjust enrichment (count five). See generally Complaint. After Plaintiff filed the Complaint, the case was transferred to the undersigned.
Defendant filed a Motion for Summary Judgment on April 1, 2009. See Motion for Summary Judgment of Defendant Citicorp Trust Bank, FSB and Memorandum of Legal Authority (Doc. No. 40; Motion for Summary Judgment). On August 21, 2009, 2009 WL 6499365, the Court entered an Order granting, in part, and denying, in part, Defendant's Motion for Summary Judgment. Specifically, the Court granted summary judgment in favor of Defendant as to Plaintiffs claims for violation of FSIPA (count one), negligent misrepresentation (count four), and fraud in the inducement and unjust enrichment (count five), and the Court denied summary judgment
In the instant Motion, Defendant requests "an award of the attorneys' fees incurred in defending Plaintiff's [FSIPA] claim and related fraud claims in the amount of" $85,350.25. See Motion at 1, 14, 16. Defendant contends that a fee award for defense of the FSIPA claim is appropriate under Florida Statutes section 517.211(6), and that a fee award is likewise appropriate for the related fraud-based claims—negligent misrepresentation and fraud in the inducement—because those claims were "intertwined" with the FSIPA claim. See Motion at 7-13. Defendant limits its fee request to defense of the fraud claims, and does not seek fees associated with the remaining claims. See id. at 2 n. 2. Plaintiff opposes the requested relief. See generally Plaintiff's Response to Defendant's Renewed Motion for Attorney's Fees (Doc. No. 136; Response). Specifically, Plaintiff argues that an award of fees would be "unjust" and, alternatively, that even if an award of fees is proper as to the FSIPA claim, the other fraud claims are not sufficiently intertwined with that claim to justify a fee award for any efforts directed toward those claims. See id. at 1-13. Finally, Plaintiff argues that Defendant's fee request is excessive. See id. at 13-16. The issues in the Motion are fully briefed and ripe for resolution.
Because Defendant's "claim for attorneys' fees sounds in state law and reaches [this Court] by way of federal diversity jurisdiction, [the Court applies] the substantive law of Florida, the forum state" including its choice of law provisions. Trans Coastal Roofing Co., Inc. v. David Boland Inc., 309 F.3d 758, 760 (11th Cir.2002) (citation omitted); see also Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir.2004) (citation omitted). Plaintiff seeks a fee award under Florida Statutes section 517.211(6), and thus, Florida state law governs whether a fee award is appropriate. See Golub v. J.W. Gant & Assocs., 863 F.2d 1516, 1521 (11th Cir.1989); Dillon v. Axxsys Int'l, Inc., No. 8:98-cv-2237-T-23TGW, 2006 WL 3841809, at *2 (M.D.Fla. Dec. 19, 2006); see also Prime Ins. Syndicate, Inc. v. Soil Tech Distribs., Inc., 270 Fed.Appx. 962, 963 (11th Cir. 2008) (per curiam) ("We have consistently recognized that in diversity cases a party's right to attorney's fees is determined by reference to state law.") (citing All Underwriters v. Weisberg, 222 F.3d 1309, 1311 (11th Cir.2000)).
"Under Florida law, each party generally bears its own attorneys' fees unless a contract or statute provides otherwise." United States v. Pepper's Steel & Alloys, Inc., 289 F.3d 741, 742 (11th Cir. 2002) (per curiam) (citation omitted); see also Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995). Plaintiff brought his FSPA claim pursuant to Florida Statutes sections 517.301(1)(a) and 517.211(2). See Complaint at 5-7; see also E.F. Hutton &
Plaintiff argues that an award of attorney's fees in this case would be unjust. In support of this position, he contends that there is a "vast difference in financial resources between" the parties; that Plaintiffs resources "were already depleted" and Defendant "profited" during the period Defendant served as trustee; that Plaintiffs "claims had merit and were not frivolous"; that Plaintiffs "losses were real and were caused by the Defendant's investment decisions"; and that a fee award "would be contrary to the remedial nature and purpose of the Florida Securities Act and would serve as a deterrent to future plaintiffs with similar claims." See Response at 7-8.
The fundamental flaw in Plaintiffs argument is that he conflates the breach of fiduciary claim—which, although it failed before the jury, survived summary judgment and a motion for directed verdict—with the FSIPA and other fraud claims—which were resolved by summary judgment in favor of Defendant. Although Plaintiff focuses on the relative merit of the former, it is only the latter for which Defendant seeks a fee award. Contrary to Plaintiffs representation, his fraud claims, including his FSIPA claim, were neither justified nor meritorious. Indeed, the Court recognized that "fraud claims do not usually lend themselves to summary disposition" but nevertheless, after extensive review of the record, determined that Plaintiffs allegations of fraud were so unsubstantiated "that under each theory of fraud advanced by Plaintiff he has failed to identify a genuine dispute of material fact that would enable a reasonable jury to return a verdict in his favor." See Summary
Having determined that Defendant is entitled to a fee award as to the FSIPA claim, the Court next considers the amount to be awarded, which presents a distinct question. Defendant acknowledges no entitlement as to fees for Plaintiffs nonfraud-based claims; however, in addition to fees incurred in defending against the FSIPA claim, Defendant seeks fees for its defense against Plaintiff's other fraudbased claims—negligent misrepresentation and fraud in the inducement—arguing that those claims were "intertwined" with the FSIPA claim. See Motion at 9-12.
In contrast to the FSIPA claim, the remaining fraud-based claims have no independent statutory authority for a fee award. Where, as here, "a party is entitled to an award of fees for only some of the claims involved in the litigation, i.e., because a statute or contract authorizes fees for a particular claim but not others, the trial court must evaluate the relationship between the claims" to determine the scope of the fee award. Chodorow v. Moore, 947 So.2d 577, 579 (Fla. 4th DCA 2007). If "the claims involve a `common core' of facts and are based on `related legal theories,' a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney's fees were sought [or were authorized]." Id. (quotation and internal quotation marks omitted) (alteration in Chodorow). Thus, for example, where a particular claim is subject to a fee entitlement 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." See Caplan v. 1616 E. Sunrise Motors, Inc., 522 So.2d 920, 922 (Fla. 3d DCA 1988). In contrast, time spent researching a "discrete issue" as to a
It appears to the Court that the non-FSIPA fraud claims and the FSIPA claim in this case involved a "common core" of facts and "related" legal theories. See Chodorow, 947 So.2d at 579; Caplan, 522 So.2d at 922; see also Summary Judgment Order at 10-26 (analyzing and discussing fraud claims jointly); Complaint at 5-7, 10-12 (relying on common factual predicate for all fraud claims).
Having determined that Defendant is entitled to a fee award, and that the scope of that award should encompass defense of the FSIPA claim and, to the extent interrelated, the non-FSIPA fraud claims, the Court must next address the reasonable amount of such an award. As with the propriety of a fee award, the reasonable amount of such an award is governed in this case by Florida law; which, in turn, utilizes "the lodestar[
The first step to determine a fee award utilizing the lodestar approach is to calculate the lodestar figure, that is, "`the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.2008) (per curiam); see also Eckhardt v. 424 Hintze Mgmt., LLC, 969 So.2d 1219, 1222 (Fla. 1st DCA 2007).
Taking the lodestar calculus in reverse order, the Court first addresses counsel's 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.'" Dillard v. City of Greensboro, 213 F.3d 1347, 1354 (11th Cir.2000) (per curiam) (quotation omitted). Defendant's seek an hourly rate of $385 per hour by attorney Abel, and $195 per hour by attorney Steif. See Declaration of Michael A. Abel, Esq. in Support of Renewed Motion for Attorney's Fees (Abel Declaration), attached as Exhibit A to Motion, at 9. These rates are supported by affidavits of Abel and an independent lawyer in the Jacksonville area, as well as the fact that Defendant itself agreed to pay its attorneys based upon these hourly rates. See Abel Declaration at 8-9; Declaration of Michael G. Tanner as to Reasonableness of Attorney's Fees Incurred by Defendant, Citicorp Bank, FSB, attached as Exhibit B to Motion; see also Dillard, 213 F.3d at 1354-55. Plaintiff classifies these rates as "at the `upper end'" of the relevant market, but does not specifically challenge the rates, or propose alternative rates. Having considered
As explained above, Defendant is entitled to a fee award only with respect to defense of the FSIPA claim, and, to the extent interrelated, the non-FSIPA fraud claims; Defendant is not entitled to, and does not seek, an award for defense of the non-fraud claims. In a case such as this, "where part of the attorney's efforts are to go uncompensated, the burden is on the attorney to provide sufficient evidence for the court to make a correct division." Loranger v. Stierheim, 10 F.3d 776, 782 (11th Cir.1994) (quotation and internal quotation marks omitted). If "a request for attorney's fees does not permit easy division between compensable and noncompensable hours, a district court should require the party seeking fees to refashion its request." Id. (citation omitted). Nevertheless, "`[a]lthough the party seeking fees has the burden of supplying the court with detailed evidence from which the court can determine a reasonable fee, where that party presents inadequate documentation the court may determine a reasonable award based on its own experience.' " Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir.2001) (quoting Mills ex rel. Mills v. Freeman, 118 F.3d 727, 734 (11th Cir.1997), superceded by Rule on other grounds as stated in Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1043 n. 3 (11th Cir.2010)); see also Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 431-32 (11th Cir. 1999). Faced with a voluminous billing record, a district court "has two choices" if it "finds the number of hours claimed is unreasonably high": the court "may conduct an hour-by-hour analysis or it may reduce the requested hours with an acrossthe-board cut." Bivins, 548 F.3d at 1350.
Defendant requests compensation in this case for 311.1 attorney hours, divided amongst one partner and one associate. In support, Defendant proffers billing records and representations from lead defense counsel to the following effect: the billing records are accurate descriptions of the tasks performed and have been reduced in accordance with billing judgment to write-off time counsel deemed excessive or duplicative, see Abel Declaration at 7, 9; billing pertaining exclusively to non-fraud claims has been extracted, see id. at 5; and the remaining billing pertains in part to compensable time, and in part to noncompensable time, but counsel's records do not enable precise delineation, see id. at 6-7. In light of the inability to precisely delineate the time that is block-billed, or otherwise pertains to both compensable and non-compensable work, Defense counsel has proposed a 50% reduction—with limited exception—of this remaining time. See id. at 7. In sum, after reduction for billing judgment and extraction of all clearly non-compensable time, Defense counsel has identified the remaining hours of billing that pertains in part to compensable work, and in part to non-compensable work
Although Defendant's imprecise billing records and Plaintiff's imprecise objections
Thus, the Court elects to reduce the voluminous billing request "with an acrossthe-board cut." See Bivins, 548 F.3d at 1350.
In accordance with the foregoing and based on these findings of fact and conclusions of law, I find that Citicorp Trust Bank, FSB's Motion for Attorneys' Fees and Supporting Memorandum of Law (Doc. No. 118; Motion) is due to be
Accordingly, it is hereby
In Taylor, the court found the second factor, policy, to weigh against an award of fees because the purpose of the statutory scheme underlying the Florida Blue Sky Law "is to encourage private citizens to bring appropriate legal actions under the statute...." Id. at 149 (emphasis added). It is apparent that, although analyzed separately, the relative merit and justification of the plaintiff's claims also factored into the policy consideration. See id. (finding frequent substantial fee awards "against private citizen plaintiffs would have a deterrent and chilling effect upon others who might otherwise" bring claims and finding that a fee award would not further the policies behind the statutory scheme because "this deterrent and chilling effect would particularly take place were courts to frequently award fees to prevailing securities industry defendants even in those cases where the claims of the plaintiffs, although unsuccessful, had substantial merit or were substantially justified") (emphasis added). Put differently, the policy implications behind a private citizen suit are derivative of the suit's justification—public policy supports private citizen suits of meritorious claims that ultimately fail, but no public policy is vindicated when a private citizen brings a suit without merit or justification.
Thus, unlike in Taylor, in this case, although the first factor may weigh in favor of a determination that a fee award would be unjust, the final two factors weigh heavily in the opposite direction.
The Court has not independently verified Plaintiff's representation. Assuming it has merit, his argument is better presented to the Florida legislature than to this Court. Certainly, the Court may, in appropriate circumstances, consider the policy behind the Florida statutory scheme that encourages enforcement through private suit. See Newsom, 558 So.2d at 1077-78; Taylor, 40 Fla. Supp.2d at 149. But where the Florida legislature has chosen to make fees available to a prevailing defendant, the Court is not free to simply reject this decision in favor of its own policy judgment.
The only specific objection Plaintiff lodges to Defendant's fee request mostly lacks merit. Plaintiff argues that "[t]ime spent litigating the amount of fees as opposed to a party's entitlement of fees is not awardable" and that "[accordingly, even the time charged by Defendant's counsel in seeking attorneys fees is not recoverable since its efforts were devoted mainly to increasing the amount of its fees rather than establishing the right to recover them." See Response at 15-16. Plaintiff correctly states the law, see McMahan v. Toto, 311 F.3d 1077, 1085-86 (11th Cir.2002), but errs in its application of the law to this case. As previously discussed, Defendant initially sought a bifurcated analysis from the Court which would have addressed entitlement to fees before addressing the amount thereof. Nearly all of the "fees for fees" sought by Defendant pertain to this initial briefing (which has largely been recast before the Court in the instant briefing). Indeed, all of the "fees for fees" time sought prior to April 27, 2010, 2010 WL 2105924, when the Court denied the initial fee request without prejudice, pertained exclusively to the entitlement, and not amount, of any fee award. Since that time, Defendant has only billed 3.2 hours in this case, and seeks reimbursement for only 1.4 hours. The Court takes note that a percentage of this 1.4 hours may be improper, and will take the same into account in crafting the ultimate fee award. (Because, as explained below, the Court is inclined to reduce Defendant's fee with an across-the-board cut, it is improper to also reduce Defendant's fee with an hour-by-hour analysis for reasonableness. See Bivins, 548 F.3d at 1351.). In sum, the Court has considered Plaintiffs single specific objection, finds it to be mostly, but not entirely, without merit, and will take it into consideration when crafting the ultimate fee award.
Here, although it was not unreasonable for Abel, a partner, and Steif, an associate, to work on the case, it appears that they have unnecessarily "double-billed" for much work that does not reflect their distinct contributions to the case. As representative examples, both Abel and Steif separately billed for: reviewing court orders, attending mediation, and preparing for and attending Plaintiff's deposition. Indeed, between the two, they billed more than 37 hours preparing for and attending Plaintiffs deposition.
