Oct 29, 2020 - Franchise, Dealer & Antitrust Decisions in One Sentence by |

FLORIDA FEDERAL COURT REJECTS FRANCHISE LAWYERS’ FEE REQUEST AS ‘TOO HIGH’

In a recent franchise case in Florida, a federal district court refused to grant the fees requested by the franchisee lawyers’ in their fee petition because the franchisee lawyers’ fees were “too high” when viewed against the rates charged by other lawyers in the area who are experienced in complex litigation; in slashing the lawyers’ requested fees by almost 40% across the board, the court stated: “The case at bar was not complex, and Defendant Childress won on the basis of default [with the other side not putting up a defense].”

Drone Nerds Franchising Llc v. Childress

United States District Court for the Southern District of Florida

October 7, 2020, Decided; October 7, 2020, Entered on Docket

Case No. 19-CV-61153-RUIZ/STRAUSS

Excerpts of the Case:

REPORT AND RECOMMENDATION

THIS CAUSE came before me upon Defendant/Counter-Plaintiff’s [(“Defendant Childress'”)] Motion for Attorneys’ Fees and Costs (DE 83) (the “Motion”). The Motion has been referred to me to take all action as required by law pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida. (DE 84). I have reviewed the Motion, the record in this case and am otherwise duly advised. For the [*3]  reasons discussed herein, I RECOMMEND that the Motion (DE 83), be GRANTED IN PART and DENIED IN PART. Specifically, I recommend that attorneys’ fees be awarded in the amount of $20,947.50 and that no costs be awarded.

  1. DISCUSSION

Defendant Childress’ Motion seeks $38,095.00 in attorney’s fees and $2,435.15 in costs. (DE 83 at 3). “Courts have discretion to award fees under FDUTPA.” Hard Rock Cafe Int’l USA, Inc. v. RockStar Hotels, Inc., No. 17-CV-62013, 2019 U.S. Dist. LEXIS 85437, 2019 WL 3412155, at *9 (S.D. Fla. May 20, 2019), report and recommendation adopted, No. 17-CV-62013, 2019 WL 3408888 (S.D. Fla. June 4, 2019) (citation omitted). Also, “Fla. Stat. § 817.416(3) explicitly permits one who demonstrates a violation under the Act to recover ‘all moneys invested in such franchise or distributorship’ plus ‘reasonable attorney’s fees.'” Burger King Corp. v. Austin, 805 F. Supp. 1007, 1026 (S.D. Fla. 1992). Thus, as the Court previously found, Defendant is entitled to an award of reasonable attorneys’ fees and costs against the Default Plaintiff.

  1. Reasonableness of Fees

When determining the reasonableness of attorneys’ fees, courts begin by multiplying a reasonable hourly rate by the number of hours reasonably expended. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). The result of that calculation is known as the lodestar, see id. at 1301-02, which is “strongly presumed to be reasonable.” Martinez v. Hernando Cnty. Sheriff’s Office, 579 F. App’x 710, 715 (11th Cir. 2014) (citations [*6]  omitted).

The party seeking an award of fees has the burden of documenting the hours incurred and the applicable hourly rates. Norman, 836 F.2d at 1303 (citing Hensley, 461 U.S. at 437). Fee applicants are required to exercise billing judgment and to exclude entries that are excessive, redundant, or otherwise unnecessary. Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (citing Hensley, 461 U.S. at 434). Entries for clerical or administrative tasks should also be excluded. See Ortega v. Berryhill, No. 16-24697-CIV, 2017 WL 6026701, at *2 (S.D. Fla. Dec. 5, 2017) (“Purely clerical or secretarial tasks that require no legal skill or training, such as converting pleadings to PDF, faxing and mailing, updating lists and calendars, and filing or e-filing documents, should not be billed at a paralegal rate regardless of who performs them.” (citing Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999))).

It is axiomatic that hours that are unreasonable to bill to one’s client are unreasonable to bill to an adversary, “irrespective of the skill, reputation or experience of counsel.” Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301). If fee applicants fail to exercise billing judgment, courts must do it for them. Id. A court “is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Norman, 836 F.2d at 1303 (citations [*7]  omitted).

A fee summary from Attorney Robert M. Einhorn’s Affidavit is shown below reflecting the rates, hours, and amounts billed by attorneys, a law clerk, and a paralegal in this case:

Summary by Attorney/Paralegal:

TimekeeperHourly RateHoursTotal
Robert M. Einhorn, Esq.$750.0019.7$14,775.00
Alejandro Brito, Esq.$725.005.8$ 4,205.00
Alaina B. Siminovsky, Esq.2$500.0025.9$12,950.00
Cecilia Hernandez, clerk$200.0028.2$ 5,640.00
Aude Piriou, paralegal$150.003.5$ 525.00
  TOTAL:$38,095.00

(DE 83-1 at ¶9).

  1. Reasonableness of Hourly Rate

Defendant Childress requests that this Court find the hourly rates above to be reasonable stating in support the following:

  1. Robert M. Einhorn, named partner and highly experienced commercial trial lawyer and member of the Florida Bar since 1990; $750.00 per hour . . .;
  2. Alejandro Brito, named partner and highly experienced commercial trial lawyer and member of the Florida Bar since 1996; $725.00 per hour . . .;
  3. Alaina B. Karsten, former partner and member of the Florida Bar since 2009; $500.00 per hour . . .;
  4. Cecilia Hernandez, law clerk and recent law school graduate; $200.00 per hour . . .; and
  5. (sic) Aude Piriou, paralegal; $150 per hour . . .;

(DE 83 at [*8]  3). In a separate filing, counsel states that none of the attorneys in this case have received a fee award for their services in cases in the Southern District of Florida in the last two years. (DE 86).

I should consider several factors in determining the prevailing market rate, such as “the attorney’s customary fee, the skill required to perform the legal services, the attorney’s experience, reputation and ability, the time constraints involved, preclusion of other employment, contingency, the undesirability of the case, the attorney’s relationship to the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996) (referring to factors set out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-18 (5th Cir. 1974), abrogated in part by Blanchard v. Bergeron, 489 U.S. 87, 90, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989)). As the party seeking an award of fees, [Movant] has the burden of “supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate.” Barnes, 168 F.3d at 427 (quoting Norman, 836 F.2d at 1303). “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.'” Id. at 436 (quoting Norman, 836 F.2d at 1299). “The general rule is that the ‘relevant market’ for purposes of determining the reasonable hourly rate for an attorney’s services is ‘the place [*9]  where the case is filed.'” Id. at 437 (citing Cullens v. Georgia Dep’t. of Transp., 29 F.3d 1489, 1494 (11th Cir.1994)).

Here, Defendant Childress does not carry his burden to justify the requested rates. Attorney Einhorn’s Affidavit does nothing to further explain why the listed timekeepers are entitled to the hourly rates requested beyond what is in the Motion. (DE 83-1). Further, I find that the requested rates are too high. Recent awards for lawyers experienced in complex areas of law, such as intellectual property, have been less. Boigris v. EWC P&T, LLC, No. 19-21148-CIV, 2020 U.S. Dist. LEXIS 32941 , 2020 WL 1692013, at *2-3 (S.D. Fla. Feb. 25, 2020), report and recommendation adopted, No. 19-21148-CIV, 2020 U.S. Dist. LEXIS 63035, 2020 WL 1692080 (S.D. Fla. Mar. 16, 2020) (finding the appropriate rate at the partner level to be in the $400 range in a traditional intellectual property case and awarding $475 per hour for partner work and $350 per hour for associate work); Newman v. Eduardo Meloni, P.A., No. 0:20-CV-60027-UU, 2020 U.S. Dist. LEXIS 163064 , 2020 WL 5269442, at *2 (S.D. Fla. Sept. 4, 2020) (finding a $450 per hour requested rate reasonable in class action lawsuit for senior partner with sixteen years of experience and a $350 per hour requested rate reasonable for associate with more than five years of experience); Berkley Vacation Resorts, Inc. v. Castle Law Grp., P.C., No. 18-CV-60309, 2019 WL 7344834, at *2-3 (S.D. Fla. Nov. 18, 2019), report and recommendation adopted, No. 18-60309-CIV, 2019 WL 7344793 (S.D. Fla. Dec. 11, 2019) (finding the reduced hourly rates that were requested to be reasonable as follows: 1) $400 for partner and chair of litigation [*10]  department with more than 41 years of experience litigating in state and federal courts; 2) $375 for partner with more than 15 years of experience litigating in state and federal courts; 3) 275 for senior counsel with more than 11 years of experience litigating in state and federal courts).

I find that a reasonable hourly rate for professionals assisting in this case are as follows based upon the above and my own knowledge regarding reasonable hourly rates in this community:

TimekeeperHourly Rate
Robert M. Einhorn, Esq.$475.00
Alejandro Brito, Esq.$450.00
Alaina B. Siminovsky, Esq.$350.00
Cecilia Hernandez, clerk$200.00
Aude Piriou, paralegal$150.00

The case at bar was not complex, and Defendant Childress won on the basis of default. Defendant Childress argues that the work was performed in an efficient manner, but efficiency does not justify the requested hourly rates. Accordingly, I recommend the above-reflected rates be awarded as reasonable hourly rates in this case.

Alaina B. Siminovsky is referenced as Alaina B. Karsten in Attorney Einhorn’s Affidavit that was submitted in support of the Motion.

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