Brevard Extraditions, Inc. v. Fleetmatics United States, LLC

BREVARD EXTRADITIONS, INC. d/b/a U.S. PRISONERTRANSPORT and ROBERT DOWNS, individually and onbehalf of other similarly situated persons, Plaintiffs, v. FLEETMATICS USA, LLC, formerly doing business asFLEETMATICS USA, INC. and FLEETMATICS USAGROUP HOLDINGS, INC., Defendants.

CASE NO. 8:12-CV-2079-T-17MAP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: June 27, 2014

ORDER

This cause is before the Court on:

Dkt. 61 Unopposed Motion for Award of Plaintiffs' Attorneys' Fees and Costs, and Service Award

Plaintiffs seek the award of $232,500.00 for attorney's fees and costs incurred in this case; that amount is the maximum amount permissible under the Settlement Agreement. Plaintiffs also seek a service award in the amount of $7,500.00, to be made jointly payable to Brevard Extraditions, Inc. d/b/a U.S. Prisoner Transport and Robert Downs.I. Discussion

A. Sec. 934.10(1)(d), Florida Statutes

In the Second Amended Complaint, Plaintiffs allege claims for violations of Sec. 934.03, Florida Statutes. The Settlement Agreement provides for the award of damages to class claimants; pursuant to Sec. 934.10(1)(b), Florida Statutes, damages include actual damages, but not less than liquidated damages computed at the rate of $100 a day, or $1,000, whichever is higher. Pursuant to Sec. 934.10(1)(d), Florida Statutes, a claimant is entitled to recover a reasonable attorney's fee and litigation costs reasonably incurred.

Defendants do not dispute that Sec. 934.10(1)(d) applies to Plaintiffs' claims.

The Court notes that this case is a fee-shifting case rather than a common fund case.

B. Lodestar Formula

Florida has adopted the federal "lodestar" formula for assessing reasonable fee awards. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). The lodestar is the product of the number of hours reasonably worked by lawyer and a reasonable hourly rate. See Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11^th Cir. 1989)(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

In Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla. 1999)(holding Quanstrom analysis applies to contract cases even where there is no statutory or rule-based authority for a fee award) , the Florida Supreme Court notes:

In Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 830 (Fla. 1990), we found it necessary to reexamine the principles adopted in Rowe regarding the federal lodestar approach and the use of the [contingency risk] multiplier. We observed that federal courts had developed the lodestar method for determining attorney's fees to apply to a "special class of cases, in which Congress had enacted fee-authorizing statutes to pay fees to prevailing plaintiffs for the purpose of obtaining public enforcement of Congressional acts." Id at 831. We then noted that subsequent to Rowe, in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 5854 (1987), the United States Supreme Court had "substantially restricted, if not eliminated" the use of a contingency risk multiplier as a method of enhancing a statutorily authorized attorney's fees. Quanstrom, 555 So.2d at 832. We observed that the plurality in Delaware Valley was "unconvinced that Congress intended the risk of losing a lawsuit to be an independent basis for increasing the amount of any otherwise reasonable fee." Id. at 831 (quoting Delaware Valley, 483 U.S. at 725, 107 S.Ct. 3078).

In Quanstrom, 555 So.2d at 833, the Florida Supreme Court held that different types of cases require different criteria to achieve the legislative or court objective in authorizing the setting of a reasonable attorney's fee. Although the Florida Supreme Court reaffirmed the decision in Rowe concerning the lodestar approach as a basic starting point, the Florida Supreme Court found that the use of the contingency fee multiplier should be modified, depending upon the type of case: 1) public policy enforcement cases; 2) tort and contract claims and 3) family law, eminent domain, and estate and trust matters, noting that these categories are not intended to be all inclusive. In public policy enforcement cases, the Florida Supreme Court adopted an approach in which the existence of a contingency fee arrangement is one factor to consider in determining a reasonable attorney's fee, and the trial court is not limited in its award by the fee agreement between the party and his or her attorney. In tort and contract cases, the Florida Supreme Court reaffirmed the use of a multiplier but found that the trial court should consider the following factors in determining whether a multiplier is necessary:

1. whether the relevant market requires a contingency fee multiplier to obtain competent counsel;

2. whether the attorney was able to mitigate the risk of nonpayment in any way; and

3. whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

The Florida Supreme Court further held that evidence of these factors must be presented to justify the utilization of a multiplier, and if the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5. Id., at 834.

The Court also notes the analysis in Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 572 (2010), summarizing the rules in federal fee-shifting statutes:

1. A "reasonable" fee is a fee sufficient to induce a capable attorney to undertake the representation of a civil rights case.

2. The lodestar method yields a fee that is presumptively sufficient to achieve this objective. This presumption is a strong presumption.

3. Enhancements may be awarded in "rare" and "exceptional" circumstances.

4. The lodestar includes most, if not all, the factors constituting a "reasonable" attorney's fee; an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation. Novelty, complexity and the quality of counsel's performance should generally not be used to adjust the lodestar.

5. The burden of proving that an enhancement is necessary is borne by the fee applicant.

6. A fee applicant must produce specific evidence that supports the award. (Citations omitted).

The Supreme Court noted that an enhancement may be appropriate as follows: 1) where the method determining the hourly rate does not adequately measure the attorney's true market value; the hourly rate may be adjusted in accordance with specific proof linking the attorney's ability to a prevailing market rate; 2) if the attorney's performance includes an extraordinary outlay of expenses and litigation is exceptionally protracted; and 3) where extraordinary circumstances are present in which an attorney's performance involves an exceptional delay in the payment of fees. Compensation for this delay is made either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value.

1. Reasonable hours

The hours for which Plaintiffs seek an award are:

Ewusiak 335.5 hours (plus 24 to conclude)

Roberts 271.5 hours (plus 15 to conclude)

Dogali 38.4 hours (plus 10 to conclude)

(plus 6.9 firm hours)

Schutzman 93.4 hours (plus 15 to conclude)

The Court first determines the number of hours reasonably expended on the litigation. Plaintiffs' counsel have provided specific time records. Plaintiffs engaged three law firms, and this case was prosecuted by four experienced attorneys who carried out separate roles, within minimal overlap. Where the services rendered are necessary, not duplicative, and the total fee is reasonable, the award of attorney's fees to separate counsel is not precluded. Florida Drilling & Sawing v. Fohrman, 635 So.2d 1054, 1055-56 (Fla. 4^th DCA 1994); Norman v. Housing Authority of City of Montgomery,836 F.2d 1292, 1302 (11^th Cir. 1989).

The Court notes that this case included complex legal and factual issues, the time commitment to this case had a material effect on counsels' ability to accept other employment, and the benefit conferred to class members is in line with other class actions involving similar subject matter. Defendants have not pointed out any hours which should be deducted. The Court finds that Plaintiffs have established that the time for which Plaintiffs seek an award is reasonable.

2. Reasonable hourly rates

The reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11^th Cir. 1989).

Plaintiffs request that the Court approve the stated hourly rates (Dkt. 61, Par. 12) as being reasonable, as the stated rates reflect the labor required in a complex litigation, the novelty and difficulty of the legal and factual issues, the skill required to perform the services, the preclusion of other work, the contingent...