Regions Bank v. Kaplan, CASE NO. 8:12-CV-1837-T-17MAP

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtELIZABETH A. KOVACHEVICH United States District Judge
PartiesREGIONS BANK, Plaintiff, v. MARVIN I. KAPLAN, et al., Defendants.
Docket NumberCASE NO. 8:12-CV-1837-T-17MAP
Decision Date29 March 2019

REGIONS BANK, Plaintiff,
v.
MARVIN I. KAPLAN, et al., Defendants.

CASE NO. 8:12-CV-1837-T-17MAP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 29, 2019


ORDER

This cause is before the Court on:

Dkt. 895 Motion for Supplemental Final Judgment Awarding Fees, Costs and Expenses Against Kaplan Parties (Regions)
Dkt. 896 Notice (Regions)
Dkt. 913 Response (Kaplan Parties)
Dkt. 914 First Motion to Bifurcate Entitlement to Fees and Costs Regarding Regions Bank's Motion for Supplemental Final Judgment (Kaplan Parties)
Dkt. 940 Opposition to Motion to Bifurcate (Regions)
Dkt. 948 Supplemental Notice of Filing (Regions)
Dkt. 953 Supplemental Memorandum and Objections(Kaplan Parties)
Dkt. 954 Notice of Filing in Support of Supplemental Memorandum (Kaplan Parties)
Dkt. 956 Report and Recommendation
Dkt. 982 Corrected Objections to Report and Recommendation (Regions)
Dkt. 987 Motion for Leave to Submit Unredacted Invoices For In Camera Review (Regions)
Dkt. 989 Response to Corrected Objections (Kaplan Parties)
Dkt. 994 Motion for Leave to Submit Reply Memorandum and Declaration (Regions)

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Dkt. 995 Response in Opposition to Motion for Leave to Submit Unredacted Invoices For In Camera Review (Kaplan Parties)
Dkt. 997 Response in Opposition to Motion for Leave to File Reply (Kaplan Parties)

Regions Bank's Motion for Supplemental Final Judgment Awarding Fees, Costs and Expenses Against Kaplan Parties (Dkt. 895), and Kaplan Parties' First Motion to Bifurcate Entitlement to Fees and Costs Regarding Regions Bank's Motion for Supplemental Final Judgment (Dkt. 914) were referred to the assigned Magistrate Judge for a Report and Recommendation. Oral argument was conducted on June 18, 2018. A Report and Recommendation (Dkt. 956) has been entered in which it is recommended that the Motion for Supplemental Final Judgment Awarding Fees, Costs and Expenses be granted in part and denied in part, and the First Motion to Bifurcate Entitlement to Fees and Costs Regarding Regions Bank's Motion for Supplemental Final Judgment be denied.

Magistrate Judge Pizzo concluded that Regions Bank is entitled to recover its reasonable attorney's fees and costs associated with the breach of deposit agreement counts, the UCC counts, and the defense of the counterclaims (negligence/negligent misrepresentation and defamation/invasion of privacy) the Kaplan Parties asserted against Regions, but is not entitled to recover the attorney's fees and costs incurred in prosecuting the tort claims. (Dkt. 956, p. 9). The tort claims include civil conspiracy, fraudulent concealment, conversion and aiding and abetting against the Kaplan Entities and Marvin I. Kaplan individually.

Regions Bank has filed Objections to the Report and Recommendation, objecting to some of the recommendations.

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The Kaplan Parties have filed a response to the Objections.

I. Standard of Review

Under the Federal Magistrates Act, Congress vested Article III judges with the power to "designate a magistrate judge to hear and determine any pretrial matter pending before the court," subject to various exceptions. 28 U.S.C. 636 (b)(1). The Act further vests magistrate judges with authority to submit proposed findings of fact and recommendations for disposition by an Article III judge. 28 U.S.C. Sec. 636(b)(1)(B). "Within fourteen days after being served with a copy [of a magistrate judge's Report and Recommendation], any party may serve and file written objections to [the magistrate judge's] proposed findings and recommendations." 28 U.S.C. Sec. 636(b)(1). The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. Regarding the scope of review, litigants generally must present their evidence and arguments to the magistrate judge in the first instance to preserve review; however, the district court may, in its discretion, consider arguments and evidence presented for the first time in an objection to a report and recommendation. Williams v. McNeil, 557 F.3d 1287, 1291-92 (11th Cir. 2009). After concluding its review, "[t]he district judge may accept, reject, or modify the recommended disposition, receive further evidence, or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

As the Eleventh Circuit Court of Appeals has explained, a party's objections must "specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection." Macort v. Prem, Inc., 208 Fed. Appx. 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822 (11th Cir.1989)). "It is critical that the objection be sufficiently specific and not a general objection to the report." Id. at 784 (citing Goney v. Clark, 749 F.2d 5, 7

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(3d Cir.1984)).

II. Dkt. 914 First Motion to Bifurcate Entitlement to Fees and Costs Regarding Regions Bank's Motion for Supplemental Final Judgment (Kaplan Parties)

In the Report and Recommendation, Magistrate Judge Pizzo recommended that the Motion to Bifurcate Entitlement to Fees and Costs be denied.

The Court has independently reviewed the record and the pleadings. No objections to the Report and Recommendation as to the Motion to Bifurcate have been filed. After consideration, the Court adopts the Report and Recommendation as to this issue, and denies the First Motion to Bifurcate Entitlement to Fees and Costs. (Dkt. 914).

III. Dkt. 987 Motion for Leave to Submit Unredacted Invoices For In Camera Review

Regions seeks leave to submit the unredacted invoices of Trenam Law to the Court for in camera review.

The Kaplan Parties oppose Regions' Motion.

The Report and Recommendation was entered on June 25, 2018. Regions filed the Motion for Leave to Submit Unredacted Invoices for In Camera Review on August 30, 2018.

Regions has objected to the recommendations of the Magistrate Judge as to across-the-board reductions of reasonable hours expended. (Dkt. 982). In conjunction with Regions' objection to the reduction of the reasonable hours of Trenam Law, Regions has requested leave to submit to the undersigned

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unredacted invoices that were not furnished to the Magistrate Judge for his consideration before entering the Report and Recommendation.

The Eleventh Circuit has held that the district court has discretion to decline to consider a party's argument when that party's argument was first raised in the party's objections to the magistrate judge's report and recommendation. Williams v. McNeill, 557 F.3d 1287, 1291-92 (11th Cir. 2009); see also The Travelers Home and Marine Insurance Co. v. Calhoun, 2014 WL 1328968 (M.D. Fla. Apr. 2, 2014). The Eleventh Circuit recognizes that "[s]ystematic efficiencies would be frustrated and the magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round." Williams at 1292 (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)). Further, "it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the district judge." Id (quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.1988)).

The Court finds it inappropriate to consider evidence and arguments presented for the first time in Regions' Objections, and declines to do so. After consideration, the Court denies the Motion for Leave to Submit Unredacted Invoices for In Camera Review. (Dkt. 987).

IV. Discussion - Regions' Objections

Regions Bank is seeking the award of attorney's fees and costs associated with successfully prosecuting its breach of contract and UCC claims through summary judgment, successfully defending the Kaplan Entities' counterclaims against it, and litigating the issue of attorney's fees. (Dkt. 895).

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Regions was represented by Trenam Law ("TL"), and then by Garbett, Allen & Roza, P.A. ("GAR"). Regions initially requested the following amounts for attorney's fees and costs:

Fees
Costs
GAR
$1,548,356.56
$168,052.09
TL
$ 101,200.97
932.00

At the hearing, Regions agreed to subtract the fees associated with Richard Fechter, $71,872.59 from its costs; Regions now seeks to recover $96,179.50 in costs.

The Report and Recommendation (Dkt. 956) recommends the following amounts for attorney's fees and costs:

GAR
$604,692.50
$48,089.75
TL
$ 50,600.00
$ 932.00

Regions asserts that the recommendation should be rejected in part.

A. General Principles

Florida has adopted the federal lodestar approach as the foundation for setting reasonable fee amounts. Fla. Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). This method requires the court to determine a "lodestar figure" by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party's attorney. Id, at 1151. See also Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 830-35 (Fla. 1990)

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The fee applicant bears the burden of presenting satisfactory evidence to establish that the requested rate is in accord with the prevailing market rate and that hours are reasonable. Fla. Patient's Compensation Fund v. Rowe, 472 So.2d at 1150-51. In addition, the court itself is an attorneys' fee expert and may consider its own knowledge and experience concerning reasonable and proper fees. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).

The Supreme Court has explained:

A request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours
...

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