Int'l Fid. Ins. Co. v. Americaribe-Moriarity JV, Case No. 15–24183–Civ–COOKE/TORRES
| Decision Date | 14 February 2017 |
| Docket Number | Case No. 15–24183–Civ–COOKE/TORRES |
| Court | U.S. District Court — Southern District of Florida |
| Parties | INTERNATIONAL FIDELITY INSURANCE COMPANY, a Foreign Corporation, and Allegheny Casualty Company, a Foreign Corporation, Plaintiffs, v. AMERICARIBE-MORIARITY JV, a joint Venture, Defendant. |
Jeffrey Scott Geller, Edward Etcheverry, Etcheverry & Harrison LLP, Plantation, FL, Joyce Cruz Albert, Etcheverry Harrison LLP, Fort Lauderdale, FL, for Plaintiffs.
Richard Robert Chaves, Ciklin Lubitz & O'Connell, West Palm Beach, FL, for Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS
THIS MATTER is before me upon U.S. Magistrate Judge Edwin G. Torres' (1) Report and Recommendation on Plaintiffs' Motion for Costs (ECF No. 88), and (2) Report and Recommendation on Plaintiffs' Motion to Tax Attorneys' Fees (ECF No. 92). Plaintiffs' Motions were referred to Magistrate Judge Torres pursuant to 28 U.S.C. § 636(b)(1)(A). See ECF Nos. 77, 82.
Judge Torres recommends that Plaintiffs' Motion for Costs be granted, and that Plaintiffs be awarded $6,018.45 in taxable costs. Judge Torres also recommends that Plaintiffs' Motion to Tax Attorneys' Fees be granted, and that Plaintiffs be awarded $154,536.00 in attorneys' fees. After reviewing Plaintiffs' Motions, Judge Torres' Reports and Recommendations, and the relevant legal authorities, as well as conducting a de novo review of the record, I find Judge Torres' Reports and Recommendations clear, cogent, and compelling.
Accordingly, Judge Torres' (1) Report and Recommendation on Plaintiffs' Motion for Costs (ECF No. 88), and (2) Report and Recommendation on Plaintiffs' Motion to Tax Attorneys' Fees (ECF No. 92) are AFFIRMED and ADOPTED as Orders of this Court. It is hereby ORDERED and ADJUDGED that Plaintiffs' Motions (ECF Nos. 76, 81) are GRANTED. A separate judgment will issue awarding attorneys' fees and costs.
DONE and ORDERED in Chambers, at Miami, Florida, this 14th day of February 2017.
This matter is before the Court on Plaintiffs' Motion to Tax Attorneys' Fees [D.E. 81] that was referred for a Report and Recommendation. [D.E. 82]. The Court has reviewed the motion and its supporting materials, Defendant's opposition and supplemental materials and authorities, and Plaintiffs' reply, as well as the record as a whole. For the reasons that follow, Plaintiffs' motion should be GRANTED.
On February 26, 2014, Americaribe–Moriarity JV ("AMJV" or "Defendant"), as general contractor, entered into a written Subcontract agreement with Certified Pool Mechanics 1, Inc. ("CPM"), as subcontractor, to perform certain pool work at a project commonly known as Brickell City Centre Super Structure, located at 700 Brickell Avenue, Miami, Florida. [D.E. 52]. On April 1, 2014, International Fidelity Insurance Company and Allegheny Casualty Company (collectively, "Plaintiffs") issued a performance bond (the "Bond") in connection with the Subcontract on behalf of CPM, as principal, and Defendant, as obligee. Id. at ¶ 2.
On July 15, 2015, Defendant sent CPM a letter outlining various issues with CPM's work regarding the "East Block Pool Installation" and formally notified CPM of its default pursuant to Paragraph 11.2(a) of the Subcontract. [D.E. 52–4]. Defendant further informed CPM that it had three working days to cure the default. See id. However, on August 17, 2015, Defendant sent a letter to both CPM and Plaintiffs to advise Plaintiffs of CPM's "serious project delay and poor performance" and to "request[ ] an immediate conference call with [Plaintiffs] to substitute CPM's scope at the East Hotel pools with an alternative subcontractor[.]" [D.E. 52–5]. In response, in a letter to Defendant dated August 20, 2015, Plaintiffs listed their availability for a conference call, informed Defendant of its attempts to "communicate with the appropriate representative of [its] principal to investigate the facts and circumstances concerning this matter," requested further information from Defendant, and warned Defendant "not to take any steps with respect to the completion of the project" without Plaintiffs' prior consent. [D.E. 52–6].
The parties, including CPM, conducted a telephone conference on September 2, 2015 to discuss CPM's performance under the Subcontract. Subsequently, Plaintiffs mailed Defendant a letter dated September 15, 2015. In that letter, Plaintiffs informed Defendant that they were in the process of reviewing the information provided by Defendant regarding CPM's default, but that the information provided was incomplete. [D.E. 52–7]. Plaintiffs also noted that the completion date of the project had been "altered significantly from the baseline schedule" and that "the duration of [CPM's] activities [had] been significantly reduced," lending credence to CPM's argument that the schedule was impacted due to events beyond CPM's control. Id. As such, Plaintiffs alerted Defendant that it needed "to better understand whether the impacts to the schedule [were] the result of CPM or the result of predecessor activities over which CPM [had] no control," requested a reply and further information from Defendant, and reminded Defendant that any attempt to complete the bonded work using another subcontractor would be a violation of the Bond. Id. However, on September 16, 2015, Defendant obtained a proposal from a new potential subcontractor, Dillon Pools, Inc. ("Dillon Pools"), to complete the remaining scope of the Subcontract. [D.E. 52–9]. Additionally, in an email exchange dated September 17, 2015, Defendant and Dillon Pools established a "presumed starting date" of September 21, 2015. [D.E. 52–10].
In a letter dated September 21, 2015, which was addressed to both Plaintiffs and CPM, Defendant officially declared CPM in default, terminated the Subcontract, and made a demand upon Plaintiffs to perform under the performance bond, pursuant to Sections 3.2 and 3.3 of the performance bond and Paragraph 12.2(a) of the Subcontract. [D.E. 52–8]. Then, on September 22, 2015, Defendant sent Plaintiffs a letter stating that it "intend[ed] to award the subcontract to complete the remaining work ... to Dillon Pools, Inc." [D.E. 52–11]. In that same letter, Defendant asked that Plaintiffs "provide all necessary lists of material, delivery dates and pricing to Dillon Pools as enquired in their effort to complete the Pool scope of work for the project." Id. As of September 23, 2015, Dillon Pools "commenced performing supplementation work and on site investigations to determine corrective work required for the project ...." [D.E. 52–12].
In a letter dated September 29, 2015, Plaintiffs acknowledged receipt of Defendant's letter declaring CPM in default, requested that Defendant provide them with the information they had previously requested in order to further their investigation, reminded Defendant not to take any steps with respect to completion of the project without Plaintiffs' consent, and informed Defendant of their desire to conduct a site visit on October 1, 2015. [D.E. 52–13]. However, in a letter dated October 1, 2015, Defendant requested that Plaintiffs "immediately arrange for a contract to be prepared for execution by [Defendant] and a contractor selected with [Defendant] concurrence" as Plaintiffs were "not licensed or qualified to perform and complete the Construction Contract (§ 5.2)" and Defendant "[would] not consent for CPM to perform and complete the Construction Contract (§ 5.1)." [D.E. 52–14]. (emphasis omitted). Defendant also stated that its letter served as "AMJV's additional written notice to [Plaintiffs] demanding that [Plaintiffs] perform its obligations under [the] Bond within seven days." Id. In a contract dated October 1, 2015 between Defendant, as contractor, and Dillon Pools, as subcontractor, Dillon Pools agreed "to furnish all labor, material, equipment, layout, etc., necessary for the complete performance of the Swimming Pools and Spa Work not completed by Certified Pool Mechanics 1, Inc. (CPM)." [D.E. 61–5 at 8]. It was further understood as between Defendant and Dillon Pools that "[t]he subcontractor is taking over the scope of work from another Subcontractor terminated for cause." Id. AMJV and Dillon Pools anticipated a start date of September 28, 2015. Id. at 16. AMJV executed the contract between itself and Dillon Pools on January 21, 2016. Id. at 29. Dillon Pools executed the contract on November 4, 2015. Id.
In reaching our determination of the appropriate fee award in this case, we acknowledge that in awarding attorneys' fees "courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded." ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). We have the ultimate discretion when determining whether a party to a case should receive an award of fees. See Cullens v. Georgia Dept. o f Transp., 29 F.3d 1489, 1492–1493 (11th Cir. 1994) (). An award must be reasonable and must fall within the guidelines for attorneys' fee awards promulgated by the Eleventh Circuit. See Norman v. Housing Auth. o f Montgomery, 836 F.2d 1292, 1299–1302 (11th Cir. 1988). It is consequently within a court's ultimate discretion to adjust the fees to an amount it deems proper according to the Eleventh Circuit's parameters. See, e.g., Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990) (); Cullens, 29 F.3d at 1492 (...
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