Tillman v. Advanced Pub. Safety, Inc.

• Decision Date: 02 November 2018
• Docket Number: CASE NO. 15-cv-81782-MARRA/MATTHEWMAN
• Parties: KIM PETER TILLMAN, Plaintiff, v. ADVANCED PUBLIC SAFETY, INC., and TRIMBLE, INC., Defendants.
• Court: U.S. District Court — Southern District of Florida

KIM PETER TILLMAN, Plaintiff, v. ADVANCED PUBLIC SAFETY, INC.,and TRIMBLE, INC., Defendants.

CASE NO. 15-cv-81782-MARRA/MATTHEWMAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

November 2, 2018

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON AMOUNT OF ATTORNEY'S FEES TO BE AWARDED TO PLAINTIFF, KIM PETER TILLMAN

THIS CAUSE is before the Court upon Plaintiff, Kim Peter Tillman's ("Plaintiff") Motion for Attorneys' Fees and Costs [DE 279] and Plaintiff's Supplemental Brief Regarding Amount of Attorneys' Fees and Costs [DE 295]. United States District Judge Kenneth A. Marra has already ruled on the entitlement issue and has referred the issue of the amount of the attorney's fees and costs award to the undersigned. See DE 291.

I. BACKGROUND

On May 8, 2018, Plaintiff filed a Motion for Entitlement to Attorneys' Fees and Costs [DE 279]. On June 18, 2018, United States District Judge Kenneth A. Marra issued an Opinion and Order on Entitlement to Attorneys' Fees and Referral to Magistrate Judge William Matthewman [DE 291]. Judge Marra determined that Plaintiff is entitled to attorneys' fees and costs "relating to his Florida Whistleblower Act claim and that part of his breach of contract claim upon which he prevailed, relating to the DuPage County 2013 project." Id. at p. 3. Judge Marra explicitly declined to award Plaintiff his attorney's fees and costs "relating to his unsuccessful claim under the Representative Agreement." Id. Judge Marra referred to the undersigned the assessment of the amount of attorney's fees and costs permitted pursuant to the statutory and case law of Iowa and Florida. Id. at p. 4.

Upon receipt of the referral, the undersigned entered an Order Requiring Supplemental Briefing [DE 292]. The undersigned instructed the parties to file supplemental briefs regarding the proper amount of attorney's fees and costs in light of Judge Marra's Order. Id. On July 17, 2018, Plaintiff filed a Supplemental Brief Regarding Motion for Attorneys' Fees and Costs [DE 295]. Plaintiff is seeking $866,307.50 in attorney's fees and $79,112.01 in costs. [DE 295, p. 10]. Defendants, Advanced Public Safety, Inc., and Trimble, Inc. ("Defendants"), filed a response brief [DE 300], wherein Defendants argue that the Court should award Plaintiff $346,523.00 in fees [DE 300, p. 8] and $17,826.12 in costs [DE 300, p. 11]. Plaintiff thereafter filed a reply brief [DE 301].

II. CALCULATION OF THE ATTORNEY'S FEE AWARD TO PLAINTIFF

Here, Judge Marra has already determined Plaintiff's entitlement to fees. Thus, the only issue before the undersigned is the amount of the attorney's fees and costs award.

A reasonable attorney's fee award is "properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1994)). This "lodestar" may then be adjusted for the results obtained by the attorney. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)). "In determining what is a 'reasonable' hourly rate and what number of compensable hours is 'reasonable,' the court is to consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)." Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350(11th Cir. 2008). These factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Id. at 1350 n. 2 (citation omitted).

The reasonable hourly rate is defined as the "prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1999)). The fee applicant bears the burden of establishing the claimed market rate. See Barnes, 168 F.3d at 427. The Court may use its own experience in assessing the reasonableness of attorney's fees. Norman, 836 F.2d at 1299.

With regard to the type of evidence that the fee claimant should produce in support of a claim, in Barnes, the Eleventh Circuit has stated,

The "fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. That burden includes "supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity . . . . A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case." Id. (citations omitted).

168 F.3d at 427.

In submitting a request for attorney's fees, fee applicants are required to exercise "billing judgment." Barnes, 168 F.3d at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).If fee applicants do not exclude "excessive, redundant, or otherwise unnecessary" hours, which are hours "that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel," the court must exercise billing judgment for them. See Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301 (emphasis in original)). The burden rests on the movant to submit a request for fees that will enable the court to determine how much time was reasonably expended. Loranger, 10 F.3d at 782.

A. Counsel's Hourly Rate

In seeking reimbursement for its attorney's fees, Plaintiff relies on the Affidavit of Attorneys' Fees and Costs by Roger W. Feicht, Esq. [DE 295-2]. Mr. Feicht avers that he has been licensed to practice law in Florida since 2010 and is a shareholder with Gunster. Id. at p. 1. Mr. Feicht states that he was the lead attorney in this case throughout Gunster's representation of Plaintiff in this case in Florida and that, after G. Joseph Curley was appointed a state court judge, Mr. Feicht also served at the billing attorney for Gunster on this matter. Id. Mr. Feicht explains that Plaintiff's prior counsel in this case was Ackley, Kopecky & Kingery, LLP of Cedar Rapids, Iowa, from 2014 through December 2015. Id. at pp. 1-2.

Defendants argue that the hourly rates sought by Plaintiff are unreasonable. [DE 300, p. 3]. Defendants also contend that "Plaintiff's fee petition is inadequate to meet his burden of demonstrating that the reasonableness of his attorneys', paralegals [sic], and other staffs' [sic] rates." Id. at pp. 3-4. Defendants specifically assert that the hourly rate for Plaintiff's paralegals are unreasonable and that administrative or secretarial billing in not recoverable. Id. at p. 5.

1. Ackley Attorneys

According to Mr. Feicht, Plaintiff was contractually obligated to Ackley for compensation of legal services and costs. [DE 295-2, p. 2]. The Ackley attorneys billed a total of 164.2 hoursin this matter and are claiming $32,269.00. Id. at p. 2. Laura Kamienski, Esq., who has been an attorney since 2005, billed at a rate of $200 per hour; Larry J. Thorson, Esq., who has been an attorney since 1976, billed at a rate of $200 per hour; and Webb Wassmar, Esq., who has been an attorney since 1989, billed at a rate of $130 per hour in 2015 and at a rate of $150 per hour in 2014. Id. The Ackley attorneys' profiles from their website are attached to the Affidavit [DE 295-2] as Exhibit B.

Defendants do not appear to specifically object to the rates of the Ackley attorneys; rather, they argue that the attorney's fees of the Ackley attorneys are unrecoverable in light of Judge Marra's Order regarding entitlement to attorney's fees and costs. See DE 300, pp. 3-8. The Court also notes that the lack of an expert affidavit in support of the claimed rate is not fatal. After all, "the court, either trial or appellate, 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." Norman, 836 F.2d at 1303 (citations omitted).

Having considered information contained in Plaintiff's motion and the Johnson factors, and based upon the undersigned's own knowledge and experience, the undersigned concludes the rates sought by Plaintiff for the Ackley attorneys are reasonable. Therefore, the undersigned RECOMMENDS that the District Court find that Ms. Kamienski's rate of $200 per hour, Mr. Thorson's rate of $200 per hour, and Mr. Wassmar's rates of $130 and $150 per hour are reasonable.

2. Gunster Attorneys

Defendants contend that the hourly rates sought by Plaintiff for attorneys and paralegals at Gunster are unreasonable. [DE 300, p.p. 3-5]. The Court agrees.

The attorneys from Gunster who billed on this case on Plaintiff's behalf are as follows:

1. Jack. J. Aiello, Esq., who charged $725 an hour in 2018 and charged $700 an hour in 2017;

2. David G. Bates, Esq., who charged $590 an hour in 2017;

3. Meredith I. Biggs, Esq., who charged $260 an hour in 2017 and charged $240 an hour in 2016;

4. G. Joseph Curley, Esq., who charged $620 an hour in 2018, charged $595 an hour in 2017, and charged $575 in 2016;

5. Roger W. Feicht, Esq., who charged

...