Sanford v. Omni Hotels Mgmt. Corp.

• Decision Date: 19 August 2020
• Docket Number: NO. 3:16-CV-1578-J-34PDB,3:16-CV-1578-J-34PDB
• Parties: BILLIE SANFORD, Plaintiff, v. OMNI HOTELS MANAGEMENT CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

BILLIE SANFORD, Plaintiff,
v.
OMNI HOTELS MANAGEMENT CORPORATION, Defendant.

NO. 3:16-CV-1578-J-34PDB

United States District Court Middle District of Florida Jacksonville Division

August 19, 2020

Report and Recommendation

Following a four-day trial, a jury returned a verdict for defendant Omni Hotels Management Corporation and against plaintiff Billie Sanford. Doc. 111. The Court entered final judgment and ordered that Omni, as the prevailing party, "shall be entitled" to an award of costs under 28 U.S.C. § 1920. Doc. 112.

Before the Court is Omni's proposed bill of costs under § 1920 and Fed. R. Civ. P. 54. Doc. 114. Omni provides a ledger detailing the requested costs. Doc. 120. At an oral argument, Omni amended the amount requested from $5981.27 to $4972.12 to reflect only those figures supported by the ledger and to withdraw a request for appellate costs.¹ Neither party presents argument on costs.

Separately before the Court is Omni's motion for an award of attorney's fees against Ms. Sanford under Florida's offer-of-judgment statute and corresponding rule—Fla. Stat. § 768.79 and Fla. R. Civ. P. 1.442. Doc. 115. Omni incurred the fees

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after serving a proposal of settlement for $10,000 that Ms. Sanford left unanswered.² Doc. 61; Doc. 115 at 21-28. Omni also requests post-judgment interest on the award. Doc. 115 at 18. Omni provides affidavits of its lawyers—Michael Milton and Clay Hoblit—and separate ledgers from each lawyer's firm detailing the work performed. Docs. 115-1, 115-2. At the oral argument, Omni amended the amount requested from $101,830 to $69,881 to eliminate attorney's fees for traveling, for learning the local rules, for litigating the amount of attorney's fees, and for work insufficiently explained due to redactions. Omni also suggested a further ten-percent reduction to account for "block billing."³ And Omni withdrew requests for nontaxable expenses of $4889.98 and pre-judgment interest.

Ms. Sanford opposes the award. Doc. 118. She contends: (1) Georgia—not Florida—law governs and Omni is ineligible for an award under Georgia law; (2) the Court should decline to award attorney's fees because Omni made its proposal for settlement without good faith; and (3) the Court should award Omni less than the amount Omni requests because, among other reasons, Omni's lawyers duplicated work. Docs. 118, 125.

I. Background

In November 2014, at Juliette's Bistro, a restaurant in the Omni Hotel in downtown Jacksonville, Ms. Sanford tripped on the first step of a set of stairs, fell, and sustained injuries. Doc. 2 ¶ 15.

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Nearly two years later, in October 2016, Ms. Sanford and her husband, both represented by Kimberly Morant and Reginald Luster, sued Omni in state court for negligence (Ms. Sanford) and loss of consortium (Mr. Sanford). Doc. 2. According to them, the "color of the horizontal lines of the carpet and the color of the three steps leading to the veranda dining area were of similar colors and blended creating a dangerous, optical illusion that the carpet extended up to the veranda dining area without the need to step up." Doc. 2 ¶ 9. For the negligence claim, Ms. Sanford demanded damages, costs, and "such further relief as the Court may deem just and proper." Doc. 2 at 5-6.

Omni, represented by Mr. Milton, removed the action based on diversity jurisdiction under 28 U.S.C. § 1332, Doc. 1, and filed an answer and defenses, including that Omni was not negligent, Ms. Sanford was comparatively negligent, the conditions about which she complained were open and obvious, and her injuries resulted from pre-existing injuries, Doc. 6. Mr. Milton has represented Omni throughout Florida for six years. Doc. 115 at 15; Doc. 115-1 at 2.

Early in the action, the Court permitted Ms. Morant to withdraw as counsel for the Sanfords because she had left her law firm. Doc. 7.

In February 2017, the Court set the trial for the February 2018 term. Doc. 14. Later, the Court sua sponte continued the trial to the April 2018 term. Doc. 34.

Discovery—including a deposition of Ms. Sanford—proceeded. During her deposition, she testified: she has vertigo, she had been at the Omni for two days before the fall, she had fallen on both knees, she had undergone knee replacement surgeries on both knees before the fall, she has filed other lawsuits, and "there are others out there waiting." See Doc. 19-1 at 16, 19, 26, 35-40, 49-50, 64, 83, 113-14, 122, 153.

After discovery, Omni moved for summary judgment. Doc. 19. Both sides relied on Florida law. See Doc. 19 at 6 (Omni's motion stating, "The core principles of Florida tort law governing trip and falls which are relevant to this diversity action may be

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applied to Plaintiff's negligence claim"); Doc. 24 at 3 (the Sanfords' response relying on Florida law to argue Omni had a duty to warn).

While the motion for summary judgment was pending, the parties participated in mediation, which resulted in an impasse. Doc. 21.

Applying Florida law, the Court granted summary judgment for Omni. Docs. 41, 42. The Court concluded the Sanfords had failed to introduce sufficient evidence to show the steps created an unreasonably dangerous condition. Doc. 41 at 19.

The Sanfords appealed. Doc. 43. In the appellate briefs, both sides relied on Florida law. See Appeal No. 18-11091 (11th Cir.): Appellant Br. at 12-19 (May 11, 2018) (the Sanfords' principal brief); Appellee Br. at 12-24 (June 11, 2018) (Omni's response brief); Reply Br. at 6-7 (July 5, 2018) (the Sanfords' reply brief).

While the appeal was pending, Omni filed in this Court a proposed bill of costs for $2859.95 under § 1920 and Rule 54. Doc. 45 at 1-2. Omni attached a ledger detailing the requested costs, consisting of $154.80 for photocopies, $1413 for copies of medical records, $892.15 for a deposition transcript, and $400 for the filing fee. Doc. 45 at 3-4. The Sanfords filed no objection, and the undersigned entered a report and recommendation recommending taxing costs against the Sanfords for $2836.75, with the slight difference between the amount requested and the amount recommended based on the fact that some copies were $.50 a page while other copies were $.10 a page, and no reason for the difference was provided or apparent. Doc. 47 at 4-5.

In March 2019, the Eleventh Circuit reversed and remanded, holding "there is a genuine dispute of material fact about whether the carpeting created the illusion of a level floor and thus presented a dangerous condition about which Omni had a duty to warn invitees like Sanford." Doc. 48 at 9-10. The Eleventh Circuit observed that Ms. Sanford had "brought a negligence claim under Florida law." Doc. 48 at 2. Because Mr. Sanford had not raised on appeal his claim for loss of consortium, the

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Eleventh Circuit treated the claim abandoned. Doc. 48 at 2 n.1. Based on the decision, the undersigned vacated the report and recommendation on Omni's original proposed bill of costs. Doc. 49.

Following remand, in July 2019, the Court scheduled the trial for the October 2019 term, with the term beginning on October 7, 2019. Doc. 55. A few days later, Mr. Hoblit—a Texas lawyer who serves as Omni's national trial counsel—moved to specially appear to represent Omni, with Mr. Milton serving as local counsel. Doc. 56; Doc. 115 at 15. The undersigned granted the motion. Doc. 60. A few days after the motion, Ms. Sanford amended her initial disclosures to claim damages totaling $1,074,884.58.⁴

On August 23, 2019, at 4:03 p.m.—the same day Mr. Luster and Mr. Milton were in Atlanta for a deposition of Anuj Gupta, M.D. (a witness for the Sanfords)—, Omni filed on the docket a proposal under Florida's offer-of-judgment statute for settlement of Ms. Sanford's claim for $10,000 and a separate proposal for settlement of Mr. Sanford's claim for an amount not in the record. Docs. 61, 62, 115 at 21-28. Ten minutes later, Mr. Milton's legal assistant emailed the proposals to Mr. Luster. Doc. 115 at 21. The proposal to Ms. Sanford included a proposed settlement agreement. Doc. 115 at 26-28. The Sanfords filed no response.⁵

In September 2019, the parties submitted a pretrial statement, both sides citing Florida law. Doc. 72 at 4, 9. In the statement, Ms. Sanford claimed damages totaling $1,179.925.24, and Mr. Sanford claimed damages of $100,000. Doc. 72 at 6-7. Ms. Sanford filed a motion in limine, Doc. 67, and Omni filed a motion in limine,

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Doc. 68. The Court granted in part and denied in part her motion and granted Omni's motion. Doc. 73.

From October 28 to October 31, 2019, the Court conducted voir dire and trial. Docs. 104-06, 113. Considering the Eleventh Circuit's treatment of Mr. Sanford's consortium claim as abandoned, the Court ruled "the only claim properly before the Court at this stage of the proceedings is Billie Sanford's negligence claim." Doc. 100.

Six witnesses testified. Docs. 104-06. Mr. Luster alone tried the case for Ms. Sanford, and Mr. Milton and Mr. Hoblit together tried the case for Omni. Docs. 102, 104, 105, 106, 113. Mr. Hoblit was Omni's lawyer for jury selection, opening statement, witness examinations, and closing argument; Mr. Milton was Omni's lawyer for the charge conference and motions.⁶

The parties proposed instructions, using Florida's standard jury instructions. Docs. 83, 94. The Court instructed the jury on Florida law. See Doc. 109 at 16, 19, 21 (the Court's proposed jury instructions on negligence, comparative negligence, and damages for personal injury; citing as sources Florida cases and Florida standard jury instructions); Doc. 110 at 11-16 (the Court's corresponding final jury instructions). Ms. Sanford asked the jury to award her $1.2 million. Doc. 115 at 10.

In less than an hour, which included lunch, the jury returned a verdict for Omni. Doc. 106 (minutes stating the jury began deliberating at 1:11 p.m. and returned a verdict at 2:09 p.m.); Doc. 111 (verdict). On November 4, 2019, the Court entered final judgment for Omni and against Ms. Sanford, ordering that...