Canalejo v. Adg, LLC
| Decision Date | 20 November 2015 |
| Docket Number | CASE NO. 8:14-cv-17-T-MAP |
| Parties | TINA CANALEJO, Plaintiff, v. ADG, LLC, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
After a three-day trial, the jury found Defendant had violated Plaintiff's rights under the Florida Whistle-Blower's Act (Fla. Stat. § 448.103) ("FWA") and was due more than $15,000 in damages (doc. 145). Plaintiff now seeks $418,047.00 in attorneys' fees (doc. 150) and $13,238.74 in costs (doc. 151). Defendant opposes these demands saying Plaintiff was only partially successful and should get nothing, or if she gets fees it should be far less than what she seeks, and some of her costs are inappropriate (doc. 156). After consideration, I award Plaintiff $54,918 in attorneys' fees and $10,964.68 in costs.1
Assessing the merits of a fee petition involves a three-step inquiry. Has Plaintiff "prevailed" in the statutory sense? If so, what is the appropriate lodestar? And should the court adjust that lodestar? Smith v. Sch. Bd. of Palm Beach Cty., 981 So. 2d 6, 8-9 (Fla. 4thDCA 2007) (citing Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000)). Plaintiff bears the burden as to all this and should present the court with enough particularity, assuming she is entitled to fees, so that it can reasonably determine the lodestar. Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Norman also instructs the fee-petition counsel to "include a summary, grouping the time entries by the nature of the activity or stage of the case" and warns fee opponents to be "reasonably precise" in their objections and proof. Id. at 1301, 1303. Unfortunately, Plaintiff omits any summary, and Defendant could have objected more precisely.2 Irrespective of the Parties' shortcomings, Norman acknowledges that "[t]he 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." Id. at 1303.
On the eve of trial, Plaintiff abandoned her Family Medical Leave Act ("FMLA") interference claim and focused instead on her retaliation claims under the FMLA and FWA. The jury found for Plaintiff on her FWA claim but rejected her FMLA claim. Defendant maintains that the FMLA claim predominated the litigation. Having prevailed on that score, Defendant reasons that the Court should view it as the "prevailing party." Alternatively, ifthe Court finds Plaintiff prevailed, the Court should exercise its discretion under § 448.104, Florida Statutes, and still deny Plaintiff her fees. To some extent, both arguments are interrelated, although the analysis for each is different.
Neither the FWA nor its legislative gloss offers guidance for deciding which party prevailed or for determining when fees would be appropriate. Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1259 (11th Cir. 2014). Florida courts in other fee-shifting schemes have generally concluded that a "prevailing party" is one who "'succeed[ed] on any significant issue in litigation which achieves some of the benefit'" to the party bringing the suit. Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1200 (Fla. 2009) (quoting Moritz v. Hoyt Enter., Inc., 604 So. 2d 807, 809-10 (Fla. 1992)). That test is easily applied here. Although Plaintiff abandoned one of her FMLA claims and failed to prevail on the other, her compensation under the FWA exceeded what she could have recovered under the FMLA.3 Despite Defendant's protests, Plaintiff is the prevailing party using this standard.
Defendant recognizes Moritz's rule but says the Court should still deny fees. This argument is more directed to the Court's discretion. In other words, the Defendant posits the Plaintiff did not win enough to be entitled to fees. Section 448.104 states that "[a] court may award reasonable attorney's fees, court costs, and expenses to the prevailing party." Hence, an award of attorneys' fees to the prevailing party under § 448.104 "is not automatic and is left to the discretion of the district court," as the Defendant argues. Bell v. Georgia-Pac.Corp., No. 5:04-cv-50-OC10-GRJ, 2005 WL 1618223, at *1 (M.D. Fla. July 6, 2005). Although § 448.104 does not require a court to consider any factors in deciding whether or not to award attorneys' fees, district courts have been guided by the following five factors: (1) the scope and history of the litigation, including whether the defendant continued to prolong the action despite the presence of an efficient resolution; (2) the parties' wealth disparity; (3) whether an award of fees would frustrate the FWA's remedial purpose by deterring worthy claimants; (4) whether the opposing party's case was meritorious or frivolous; and (5) whether the opposing party acted in good or bad faith.4 Blanco v. Transatlantic Bank, No. 07-20303-Civ, 2009 WL 2762361, at *2 (S.D. Fla. Aug. 31, 2009). Frankly, none of these considerations enure to Defendant's benefit, but that finding is not critical as these factors do not control a court's decision and are not the only ones a court can consider. Id. Defendant's appeal here focuses instead on Plaintiff's lack of FMLA success.
While Plaintiff only partially succeeded on the legal theories she advanced, those theories were, as the Plaintiff asserts, related and grounded on a common core of facts. In such instances, Florida courts take the position that an "'award of attorney's fees should not be reduced in the absence of showing that the . . . attorneys spent a separate and distinct amount of time in defending a count upon which no attorney's fees were awardable.'" Chodorow v. Moore, 947 So. 2d 577, 579 (Fla. 4th DCA 2007) (emphasis in original)(quoting Chrysler Corp. v. Weinstein, 522 So. 2d 894, 896 (Fla. 3d DCA 1988)); see also Durden v. Citicorp Trust Bank, FSB, 763 F. Supp. 1299, 1306-07 (M.D. Fla. 2011) (applying Florida law). The reasoning for the proposition is simple. "'[T]ime 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.'" Id. at 1306 (quoting Caplan v. 1616 E. Sunrise Motors, Inc., 522 So. 2d 920, 922 (Fla. 3d DCA 1988)). On the other hand, if Plaintiff seeks compensation for time on a "discrete issue" dealing with a claim for which no compensation is authorized, those hours should be subtracted from the total hours expended. Id. at 1306-07. Although Defendant does not specifically advance this "discrete issue" argument, its contention that the Court should exercise its discretion in denying fees is essentially a subset of the "discrete issue" reasoning. Namely, Defendant is arguing too that it should not have to pay Plaintiff for work on a claim that proved unsuccessful, presuming of course that her failed work can be parsed from her successful effort.
Plaintiff argues an allocation is not practicable because her claims were too intertwined. I disagree. Accordingly, I have several options. I could require Plaintiff to identify those attorneys' hours expended in prosecuting her FWA claim. See Loranger v. Stierheim, 10 F.3d 776, 782 (11th Cir. 1994) (). Having examined Plaintiff's billing records, however, it is unlikely that Plaintiff would be in any better position than the Court for parsing the compensable hours from the uncompensable ones, particularly whenshe maintains her claims were inextricably intertwined. The other options are to conduct an hour-by-hour analysis, or to reduce the requested hours with an across-the-board cut, or to adjust the lodestar to reflect Plaintiff's partial success. Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1351-52 (11th Cir. 2008). No matter the option picked, the Court has to be mindful not to double count. Id. Namely, the Court cannot reduce hours and then cut across the board for the same reasons it reduced the hours. Nor can the Court reduce the hours associated with the uncompensable FMLA claims to arrive at a lodestar and then adjust the lodestar downward to account once more for the uncompensable claims. Id. The appropriate formula is to apply an across-the-board cut to parse out the excessive hours Plaintiff's attorneys spent litigating all the claims and then to fix the prevailing market rates for all Plaintiff's attorneys. With that lodestar in place, the Court can then adjust downward to reflect Plaintiff's partial success. Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985).
Florida courts take the federal approach, multiplying the reasonable hours expended by the reasonable hourly rate to arrive at a lodestar. Rowe, 472 So. 2d at 1151 (Fla. 1985). Billing judgment is important.
'Reasonably expended' means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case. . . . In this respect, the magnitude of the case should be a consideration.
In re Estate of Platt, 586 So. 2d 328, 333-34 (Fla. 1991) (emphasis in original). In other words, counsel may only claim those hours that he or she could properly bill to the client. Rowe, 472 So. 2d at 1150. A court considers the factors listed in Rule 4-1.5 of the Rules Regulating the Florida Bar when computing the lodestar: (1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other...
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