ORDER

RICHARD A. LAZZARA, District Judge.

BEFORE THE COURT is (1) the remanded Memorandum of Law and Evidence in Support of Motion for Attorneys' Fees and Nontaxable Costs Against Ziplocal, LP (Ziplocal) with attachments filed by Yellow Pages Photos, Inc. (YPPI) (Dkts. 518 & 519), Ziplocal's Revised Response with Attachments (Dkt. 532), the Bill of Costs (Dkt. 446), the Objections filed by Yellow Pages Group, LLC (YPG) (Dkt. 457), Ziplocal's Objections (Dkt. 462), Ziplocal's Supplemental Response in opposition (Dkt. 553), and YPPI's Amended Supplemental Response in support (Dkt. 555); and (2) Appellant YPPI's Motion for Attorneys' Fees and Nontaxable Costs (Dkt. 546), Appellee Ziplocal's Objections (Dkt. 547), and the Reply (Dkt. 548).1 After careful consideration of the submissions and argument of the parties, and the entire file, the Court concludes that both appellate and trial attorneys' fees and nontaxable costs are awarded in the amounts set forth in this order.

DISTRICT COURT ATTORNEYS' FEES AND NONTAXABLE COSTS

On remand, this Court must "count hours expended in pursuit of YPPI's copyright claims against Ziplocal in its initial lodestar calculation."2 After recalculating the lodestar, this Court may "alter the lodestar to reflect attorney success or the lack thereof," but that fee must be reasonable.3 Awarding the full amount of attorneys' fees and costs sought, as urged by Plaintiff, does not take into consideration the Eleventh Circuit's ruling that "it is appropriate" to adjust the lodestar to reflect the results obtained and that "a reduction in costs can be justified, as least in part, on the grounds of minimal success."4

Attorneys' Fees — Lodestar

YPPI seeks $1,422,661.75 in attorneys' fees at the district court level, which includes the hours spent on both the contract and the copyright claims. YPPI contends the number reflects a self-imposed reduction in some of the time spent on the copyright claims.5 The lodestar is reached by multiplying a reasonable hourly rate by the number of hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Hensley). The reasonable hourly rate has been decided and affirmed. As for the reasonable number of hours spent, any hours that are "excessive, redundant or otherwise unnecessary" should be excluded. Norman, 836 F.2d at 1301 (quoting Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40).

This Court still finds that the number of hours spent is excessively high, based on the block billing practices and the contentiousness of the litigation, primarily on the part of Plaintiff's counsel. The Court so finds even in view of YPPI's reductions of time spent litigating personal jurisdiction, briefing the definition of a "work" for copyright purposes, and preparing a motion for sanctions at the close of discovery.6 The unreasonable hours expended encompass more than the hours already written off for the claims, both breach of contract and copyright infringement. The cumulative effect of impeding resolution of issues between counsel, refusing to compromise on insignificant matters, and lacking organization in formulating the theory of the case, only served to disrupt the natural flow and increase hours. It is difficult to precisely calculate the additional hours, given this conduct that permeated the case.

Before detailing the history of the stonewalling and general contentious conduct of the case, the Court will address the contract between the parties. Even though YPPI should not lose the benefit of its bargain to recover "its attorneys' fees and costs" pursuant to the parties' contract, such benefit should not extend to hours wholly unreasonably incurred. Granted, the contract language does not limit the recovery of fees to a reasonable amount; yet, neither does it condone excessive discovery and obstructive tactics with little regard to cooperation as well as increased time attributable to a total change in Plaintiff's core theory of copyright "works" in the last amended complaint. The contract is not a license to engage in otherwise unacceptable practices. Civility among lawyers working on opposite sides of a case used to be one touchstone of the practice of law. Very early on in this protracted litigation, this Court reminded the attorneys of the obligation of civility, which is embodied in Local Rule 2.04(h) of the Middle District of Florida.7 In addition to the local rule, the Middle District's Discovery Handbook provides that "[d]iscovery in this district should be practiced with a spirit of cooperation and civility." Middle District Discovery: A Handbook on Civil Discovery Practice (2015) at I.A.1. The Court's warning was ignored.

It is in this context of lack of civility in which the issue of reasonable hours expended arises. The personal jurisdiction issues concerning the dismissal of Yellow Media, Inc., for which counsel for YPPI excluded its time, reached conclusion on November 16, 2012.8 The Case Management Report was filed December 17, 2012, and a preliminary pretrial was held on January 3, 2013.9 In April 2013, a flurry of motions to compel and for other discovery relief were filed with voluminous declarations, briefed, and heard on May 20, 2013.10 One such motion filed in April 2013 requested a first extension of time for Ziplocal to respond to a third set of interrogatories, which was opposed by Plaintiff's counsel.11 Such refusal to agree serves no useful purpose and borders on belligerence.

At one point in July 2013, long after personal jurisdiction had been resolved, Plaintiff's counsel notified Ziplocal's counsel that Ziplocal's "unopposed motion" to take a deposition in Quebec, was in fact opposed, thereby forcing Ziplocal to file a motion for clarification regarding whether the motion was opposed.12 These motions were followed by more motions to compel and for other relief with numerous attachments.13 In October 2013, Plaintiff filed a motion for sanctions at the close of business on a Friday afternoon before mediation on Monday, which counsel did not include in the amount of fees requested; nevertheless, this motion was not the first motion for sanctions filed.14 The motion for sanctions was denied, after a two-hour hearing at which Plaintiff's counsel admitted they did not confer with opposing counsel before filing the motion.15

This case is a prime example of Plaintiff's counsel choosing either to engage in unnecessary tactics or refusing to dismiss personal vendettas with opposing counsel or both.16 Obstructing the rhythm of a case by throwing up roadblocks of schedules too busy to calendar depositions, just for the sake of being disagreeable and obstinate, particularly in view of the multiple attorneys working on the case, does not bode well in finding the number of hours incurred was reasonable or acceptable in any sense of the word.17 It is unacceptable to spend an inordinate amount of time on pleadings, and contemplations of amending pleadings to add parties and claims just prior to the already extended close of pleadings for joinders and amendments, on never-ending discovery coupled with a stark lack of cooperation, and on petty scheduling disputes, which were unproductive to the case and inflated the fees.18 A third amended complaint was filed in October 2013.19 Plaintiff raised theories in the third amended complaint for the first time in the litigation, which caused unrealistic expectations for the recovery.20 Such new theories were not revealed in the motion to amend the complaint. As noted in this Court's prior order on attorneys' fees, the barrage of contested motions and depositions did not end with trial.21 The proceedings were unnecessarily multiplied due to either the obstructionist nature of Plaintiff's counsel or their inability to work with opposing counsel.

Given the additional time incurred, as noted from the Court's firsthand recollection and the file, apart from the time not included in the Plaintiff's self-imposed reductions, the Court further finds that the billing entries reflect work performed by multiple attorneys and paralegals, which was unnecessary. Where the billing records are voluminous, the court may employ an across-the-board adjustment rather than an hour-by-hour review. See Alhassid v. Bank of Am., N.A., 2017 WL 2179118, at *2 (11th Cir. May 16, 2017) (unpublished order); Hepsen v. J.C. Christensen & Assocs., Inc., 394 F. App'x, 597, 600 (11th Cir. 2010) (unpublished order); Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). This Court found in its prior order that YPPI engaged in block billing.22

Ziplocal specifically argued that many of the time entries consist of block billing by listing the day's tasks as a single entry with no designation of particular tasks to a specific amount of time and by showing redundancy with regard to the review of discovery materials.23 Ziplocal provided the highlighted entries on the summary of bills submitted by YPPI.24 Some of the time entries refer to meetings with other attorneys in the firm that do not coincide on the same day. Some of the entries include a block of three to four tasks, such as preparing and editing various motions, telephone conversations with different individuals, and review of discovery or preparation for depositions. Others include responding to and writing emails, drafting papers and conducting research. At least five attorneys and paralegals worked on this file. The Court finds some unnecessary overlap in drafting and discovery review or preparation, even in this copyright case.

An argument that was not raised in the first briefing on attorneys' fees and nontaxable costs is whether the contract of representation between YPPI and its attorneys limits recovery. There is no ceiling, however, on a court-ordered award of attorneys' fees, depending on the language of the fee contract. Cf. Fielder v. Shinseki, 8:07-cv-1524-T-TBM, 2010 WL 1708621, at *3 n.8 (M.D. Fla. Apr. 26, 2010) (citing Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 944, 103 L.Ed.2d 67 (1989), holding that attorneys' fee is not limited to contingent fee arrangement in civil rights cases). The fee agreement here provides for compensation on a contingent fee basis — "40% of any recovery up to $1million" with an "additional 5% of any recovery after institution of any appellate proceeding is filed . . ."25 The contingent fee arrangement contemplates a court-ordered higher award based on a statute: "In the event attorneys' fees are recovered pursuant to any state or federal statute, we will be entitled to the greater of either the statutory fee or the contingent fee described above." Attorneys' fees in copyright cases are discretionary, however, and the Court will award fees pursuant to the contract, as those fees would necessarily be higher than any discretionary statutory award this Court would enter and in keeping with YPPI's receiving the benefit of its bargain pursuant to contract between YPPI and Ziplocal.26 The issue before this Court now, however, focuses on the award that Ziplocal is obligated to pay YPPI's counsel, not what fees are due YPPI's counsel based on its agreement with the client.

In redetermining the lodestar to include time spent on the copyright claim as well as the breach of contract, the Court concludes that the lodestar should be $1,280,395.57, which is a 10% reduction representative of the excessive, redundant and otherwise unnecessary number of hours expended.27

Attorneys' Fees — Adjustment to Lodestar

Having determined the lodestar, this Court may now consider altering "the lodestar to reflect attorney success or lack thereof." Yellow Pages Photos, Inc., 846 F.3d 1159, 1164 (11th Cir. 2017) (citing Norman, 836 F.2d at 1302).28 When only a "partial or limited success" is achieved, the lodestar "may be an excessive amount" because "the most critical factor is the degree of success obtained." United States v. Everglades College, Inc., 855 F.3d 1279, 1292 (11th Cir. 2017) (quoting Hensley, 461 U.S. at 436). To overcome the presumption that the lodestar is a reasonable sum, consideration of all distinct measures of success, in addition to the amount of damages, is required to evaluate whether success was limited. Alhassid, 2017 WL 2179118, at *3 (citing Villano v. City of Boynton Beach, 254 F.3d 1302, 1308 (11th Cir. 2001)).

There is no question that the success in terms of pure monetary amount was drastically less than and grossly disproportionate to the damages sought. In his report, YPPI's expert Steve Osher opined in October 2013, just before mediation, that statutory damages amounted to between $8 million and $312 million against Ziplocal.29 Mr. Osher found that actual damages should range between $1,041,100.00 and $2,030,145.00.30 This evidence was not placed before the jury, however, because the number of "works" possibly infringed changed from around 10,000 based on images to 187 based on headings, based on the Plaintiff's significant change in its legal theory during the course of this action.31 The argument made to the jury at closing was that "178 collections of 50 to 100" registered and protected photographs were infringed.32 Plaintiff's counsel argued that there were 134 works with respect to actual damages.33 Although no testimony was elicited regarding the amount of statutory damages, Plaintiff's counsel argued in closing that the range of statutory damages to be considered was between "$750 to $30,000 per infringed collection, and you can even go up to $150,000 per collection if you find that infringement was willful."34 With respect to actual damages, the expert testified that the economic damages amounted to a range of "approximately 1 million to $2 million."35 The jury awarded YPPI as against Defendant Ziplocal a total of $100,001.00 in actual damages, which is broken down to the nominal $1 attributed to direct copyright infringement of 123 works, and $100,000 to contributory infringement.36

The damages sought and those awarded evidence a vast discrepancy with a disproportionately low recovery that can neither be overlooked nor rubber-stamped with approval. There is no public policy that would promote giving the Plaintiff a windfall in this case, or, alternatively, punishing Ziplocal for not foreseeing the magnitude of fees that could be visited upon them in what was in Plaintiff's words "a pretty simple case."37 Accordingly, the Court finds that the relative lack of success in this case warrants a downward adjustment of the lodestar of 10% for a total of $1,152,356.01.

Nontaxable Costs

YPPI now seeks $296,130.72 for the nontaxable costs incurred at the trial level, which includes the additional $6,118.76 and $20,527 attributable to D4-LLC and e-Hounds, respectively. The items of nontaxable costs are set forth in the bill of costs, motion seeking fees and costs, and the supplemental response.38 As expressed above, YPPI achieved only minimal success in this lengthy litigation, and minimal success is a ground on which costs may be reduced. Yellow Pages Photos, Inc., 846 F.3d at 1166. Accordingly, the Court will award nontaxable costs of $266,517.65, which is 10% less than the amount sought.39

APPELLATE ATTORNEYS' FEES AND NONTAXABLE COSTS

YPPI seeks $57,419.50 in attorneys' fees and nontaxable costs of $774.60 for prosecuting the appeal of the attorneys' fee and nontaxable costs award on remand. The Court finds the hourly rates are reasonable but not the number of hours expended on the appeal. The time of 136 hours seems excessive and unnecessary for researching and briefing the issue of attorneys' fees and nontaxable costs. Three of the four attorneys for YPPI were intimately familiar with the facts. The Court does not fault the addition of the fourth lawyer as he is an appellate expert. Nevertheless, the attorneys appear to have duplicated each other's work in the sense that the phrase "work on appeal" does not shed light on the precise tasks so that they are capable of being examined. For example, working on the appeal, which entry occurs at least eight times, could include anything from rereading the record to brain-storming, and from drafting to making final edits. In any event, this appeal should have taken fewer hours to prepare, particularly when the attorneys had already filed an appeal from the trial on damages as to YPG, which resulted in a 62-page affirmance.40 Even the entry such as "work on brief," which occurs at least seven times, does not adequately specify which task the attorney is performing so as to avoid double billing. It should also be noted that no oral argument was held in the appeal of the fees and costs, so none of the time was spent preparing for oral argument or traveling. Having reviewed the time sheets, the Court finds it necessary to reduce the fees by ten hours at $475/hour, and five hours at $375/hour, for a total amount of $50,794,50. The nontaxable costs of $774.60 are reasonable.

It is therefore ORDERED AND ADJUDGED as follows:

(1) On remand, attorneys' fees and nontaxable costs are granted in favor of Plaintiff YPPI and against Defendant Ziplocal in the amount of $1,152,356.01 for attorneys' fees and $266,517.65 in nontaxable costs.

(2) The Clerk is directed to enter a final judgment for attorneys' fees and nontaxable costs in accordance with paragraph (1) of this order.

(3) Appellant Yellow Pages Photos, Inc.'s Motion for Attorneys' Fees and Nontaxable Costs (Dkt. 546), which was transferred from the Eleventh Circuit Court of Appeals to this Court, is GRANTED.

(4) Appellate attorneys' fees and nontaxable costs are granted in favor of YPPI and against Ziplocal in the amount of $50,794,50 for attorneys' fees and $774.60 for nontaxable costs.

(5) The Clerk is directed to enter a final judgment for appellate attorneys' fees and nontaxable costs in accordance with paragraph (4) of this order.

DONE AND ORDERED.