Schafler v. Fairway Park Condominium Ass'n
| Decision Date | 13 May 2004 |
| Docket Number | No. 02-80127.,02-80127. |
| Citation | 324 F.Supp.2d 1302 |
| Parties | Pepi SCHAFLER, Plaintiff, v. FAIRWAY PARK CONDOMINIUM ASSOCIATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Pepi Schafler, Walnut Creek, CA, pro se.
Hugo Alvarez, Esq. and Barry A. Postman, Esq., Cole, Scott, & Kissane, P.A., Miami, FL, for defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING DEFENDANT'S MOTION FOR ATTORNEY'S FEES
THIS CAUSE comes before the court upon defendant Indian Springs Maintenance Association's motion to determine attorney's fees, and the report and recommendation of the Honorable James M. Hopkins, United States Magistrate Judge, recommending that the defendant's motion be granted. Defendant is entitled to fees pursuant to the Eleventh Circuit Court of Appeals' order granting defendant's motion to determine entitlement to attorney's fees. Ms. Schafler has objected to the Magistrate Judge's recommendation to award attorney's fees in this case because defendant's attorney has allegedly already been compensated by defendant's liability insurance carrier.
Pursuant to Fed.R.Civ.P. 72(b), "The district judge ... shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." The rule requires that objections be filed within ten days of service of the report and recommendation, and that the objecting party arrange for transcription of sufficient portions of the record. Fed.R.Civ.P. 72(b) The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. Portions of the report and recommendation that are not specifically objected to are subject to the clear error standard. The identical requirements are set forth in 28 U.S.C. § 636(b)(1).
The legal basis for Ms. Schafler's objection was specifically addressed and discounted by the court in El-Shahawy v. Lee, No. 95-269-CIV, 1999 U.S. Dist. LEXIS 6745 (M.D. Fla. Apr. 23 1999). In El-Shahawy, the plaintiff argued that the defendant was not entitled to attorney's fees because "these defendants are fully indemnified by the hospital, and their share of attorney's fees will likely be paid by the hospital's insurance policy." Id. at * 28. The court rejected this argument and held that:
assuming that such coverage exists for all litigation fees incurred by Defendants in this suit, the Court does not believe that the equities would compel declining to award fees. The Court believes that, in the same manner that a personal injury tort defendant is precluded from relying on a plaintiff's receipt of insurance benefits wholly independent from the defendant wrongdoer in order to lessen the damages otherwise due to the plaintiff, Plaintiff herein may not rely on any insurance coverage that Defendants may have had in order to escape a fee award.
The court's decision was subsequently affirmed by the Eleventh Circuit, Shahawy v. Lee, 208 F.3d 1009 (11th Cir.2000) and was denied certiorari by the United States Supreme Court, El Shahawy v. Sarasota County Pub. Hosp. Bd., 531 U.S. 825, 121 S.Ct. 72, 148 L.Ed.2d 36 (2000). Therefore, the decision in El-Shahawy persuades this court to grant the defendant's motion for attorney's fees. Since Ms. Schafler has not specifically objected to the Magistrate Judge's recommendation as to the amount of attorney's fees the court should reasonably award in this case, the court will adopt Judge Hopkins' recommendation.
Upon review of the report of the Magistrate Judge and plaintiff's objections, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the United States Magistrate Judge [DE # 72] is ADOPTED in its entirety and incorporated herein by reference.
2. The Defendant's motion for attorney's fees [DE # 34] is GRANTED for the amount of $3,290.00 A final fees judgment will be issued in a separate order.
3. Plaintiff's motion to appear via telephone for the next hearing in this matter [DE # 67] is DENIED as MOOT.
THIS CAUSE comes before the court upon plaintiff Pepi Schafler's motion for reconsideration of the court's May 13, 2004 order granting defendant's motion for attorney's fees. Ms. Schafler again contends that she is not responsible for attorney's fees in this case because the defendant's attorney's fees were paid for by its insurance company. In addition to the case cited in the court's prior order, the court now directs Ms. Schafler to the decision in Ellis v. Cassidy, 625 F.2d 227, 230 (9th Cir.1980). In Ellis, the Ninth Circuit Court of Appeals specifically considered the argument that "attorneys' fees should not have been awarded to some appellees because their legal fees were covered by insurance." The court categorically held that "[t]his argument is not persuasive." The court added that "the purpose of awarding attorneys' fees to a defendant in a civil rights case is to deter frivolous or harassing litigation; the fact that a defendant is insured is irrelevant to this purpose."
Accordingly, it is hereby ORDERED and ADJUDGED that the plaintiff's motion for reconsideration [DE # 76] is DENIED.
REPORT AND RECOMMENDATION AS TO DEFENDANT INDIAN SPRINGS MAINTENANCE ASSOCIATION'S MOTION FOR ATTORNEY'S FEES (DE 34)
THIS CAUSE has been reassigned by the Clerk of Court for the Southern District of Florida to United States Magistrate Judge James M. Hopkins for the Court to reconsider Defendant Indian Springs Maintenance Association's Motion for Attorney's Fees Pursuant to the Eleventh Circuit Court of Appeals Order Granting Defendant's Motion to Determine Entitlement to Attorney's Fees. (DEs 41 and 52). For the reasons that follow, this Court RECOMMENDS that the District Court award Defendant Indian Springs appellate attorney's fees in the amount of $3,290.00.
1.) On August 7, 2003, the Eleventh Circuit Court of Appeals granted a motion for appellate attorney's fees filed by Defendant Indian Springs Maintenance Association. (DE 31). After granting the motion as to entitlement, the Eleventh Circuit remanded the motion to the District Court to determine the amount of reasonable attorney's fees to be awarded. (DE 31).
2.) On August 12, 2003, the Honorable Daniel T.K. Hurley, United States District Court Judge for the Southern District of Florida, ordered Defendant Indian Springs Maintenance Association to file a motion for attorney's fees accompanied by supporting documentation. (DE 32).
3.) Pursuant to the Court's order, Defendant Indian Springs Maintenance Association filed its motion and supporting documentation on August 26, 2003. (DE 34). The total amount of appellate fees requested by Defendant Indian Springs Maintenance Association is $4,562.20. (DE 34). In support of the claim, Defendant Indian Springs Maintenance Association attached to its motion an affidavit of Hugo Alvarez, Esq., wherein Mr. Alvarez attested that he was the attorney assigned to this matter, that the hourly rate charged to Defendant Indian Springs Maintenance Association was $125.00 per hour, that he worked 36.50 total hours on the appeal, and that he calculated the total fee to be $4,562.20. (DE 34, Affidavit of Mr. Alvarez). In addition to the affidavit of Mr. Alvarez, the motion for attorney's fees also attached copies of billing records to document the tasks performed, the dates on which the tasks were performed, and the time taken to perform the tasks. (DE 34, Billing Records).
4.) This matter was originally referred to the Honorable Frank J. Lynch, United States Magistrate Judge for the Southern District of Florida. (DE 35). On September 29, 2003, without holding an evidentiary hearing, Judge Lynch recommended that the Court award attorney's fees in the amount of $4,562.50. (DE 37). However, upon objection by the Plaintiff, the Court recommitted the matter to Judge Lynch for the Court to conduct an evidentiary hearing. (DEs 38, 41). Before the evidentiary hearing occurred, Judge Lynch recused himself upon motion by the Plaintiff, and the undersigned was reassigned the matter. (DEs 47, 51, 52).
5.) By order dated February 11, 2004, this Court set the motion for an evidentiary hearing on March 9, 2004, at 2:00 p.m. (DE 53). On February 24, 2004, Defendant Indian Springs Maintenance Association filed another affidavit prepared by another attorney, Ms. Patricia Arias, Esq., wherein Ms. Arias attested that based upon her experience, the hourly rate of $125.00 was a reasonable hourly rate, and that the total fee claim of $4,562.501 was a reasonable rate in the local community. (DE 63).
6.) On the morning of the hearing, March 9, 2004, at approximately 10:45 a.m., Mr. Alvarez's assistant Karina called chambers of the undersigned to state that Mr. Alvarez was in a deposition in Miami Dade and would not be able to attend the hearing scheduled for 2:00 p.m. Upon further discussions, Karina explained that Mr. Alvarez was in Miami Dade conducting three (3) depositions for a State court civil case, that the depositions were being conducted telephonically, but that he may be able to make it to court by 3:00 or perhaps 2:30 p.m. After speaking with the Plaintiff and learning that she did not object to this Court delaying the hearing until 3:00 p.m., this Court reset the hearing for 2:30 p.m.
7.) At 2:30 p.m., this Court commenced the evidentiary hearing. Plaintiff proceeded pro se, and Defendant Indian Springs Maintenance Association was represented by Hugo Alvarez, Esq. The Defendant argued that it was seeking only $4,562.20 in appellate attorney's fees, and that the hourly rate was only $125.00 per hour. In support of the...
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