Sydelle Ruderman v. Washington National Insurance Corporation

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2012
No. 11-11416
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:08-cv-23401-JIC
SYDELLE RUDERMAN,
by and through her Attorney-in-fact, Bonnie Schwartz,
SYLVIA POWERS,
by and through her Attorney-in-fact, Les Powers,
individually and behalf of all others similarly situated,
Plaintiffs - Appellees,
versus
WASHINGTON NATIONAL INSURANCE CORPORATION,
Successor in Interest to Pioneer Life Insurance Company,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 29, 2012)
Before DUBINA, Chief Judge, ANDERSON, and KLEINFELD,* Circuit Judges.
PER CURIAM:
Washington National Insurance Company appeals the district court’s order
granting attorneys’ fees to Plaintiffs’ counsel in the amount of $1,647,330 and
costs in the amount of $6,923.48. For the reasons stated below, we vacate and
remand.
A district court’s order awarding attorneys’ fees is reviewed for abuse of
discretion. Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1039 (11th Cir.
2010). We have the authority to calculate a fee without remand unless an
evidentiary hearing is required for fact-finding. ACLU v. Barnes, 168 F.3d 423,
431–32 (11th Cir. 1999).
Florida has adopted the federal lodestar approach. Fla. Patient’s Comp.
Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). To reach a lodestar amount,
courts determine the number of hours reasonably spent on the litigation and
multiply that figure by a reasonable hourly rate. Norman v. Hous. Auth. of
*
The Honorable Andrew J. Kleinfeld, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
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Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988). The party seeking fees “is
responsible for submitting satisfactory evidence to establish both that the
requested rate is in accord with the prevailing market rate and that the hours are
reasonable.” Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996).
When fee documentation is voluminous, an hour-by-hour review is “impractical
and a waste of judicial resources” and an across-the-board percentage cut is
permitted. Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994).
The district court did not abuse its discretion in reducing the billable hours
by 20%, given Plaintiffs’ counsel’s billing practices. The court permissibly used
its own knowledge and experience in choosing a reasonable hourly rate of $375.
See Norman, 836 F.2d at 1303.
The court applied a 1.5 multiplier to the award. Florida law allows different
multipliers in different circumstances. See Standard Guar. Ins. Co. v. Quanstrom,
555 So. 2d 828, 834 (Fla. 1990). Florida law does not permit a “contingency risk
factor multiplier” where there is no evidence in the record, and the trial court has
not found, that without the enhancement, the plaintiffs would have faced
substantial difficulties finding counsel in the relevant market. Sun Bank of Ocala
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v. Ford, 564 So. 2d 1078, 1079 (Fla. 1990). The district court here recognized that
Plaintiffs’ counsel “has not argued that this case was undesirable,” and made no
finding that Plaintiffs faced any difficulties in finding counsel. Because no likely
difficulty finding counsel was established, a multiplier was not permissible under
Florida law.
The figure awarded did not deduct from the billable hours figure the hours
Plaintiffs’ counsel spent litigating the amount of attorneys’ fees to be awarded.
The Florida Supreme Court has held that, with respect to Fla. Stat. § 627.428,
attorneys’ fees incurred for litigating entitlement to fees are recoverable, but fees
incurred for litigating the fee amount are not. State Farm Fire & Cas. Co. v.
Palma, 629 So. 2d 830, 833 (Fla. 1993). We reviewed the time sheets submitted to
the district court, and the number of hours Plaintiffs’ counsel spent contesting the
amount of attorneys’ fees appears to have been 375.6 hours. We subtract 375.6
hours from the 3,601.3 requested billable attorney hours to reach 3,225.7 hours.
The lodestar is then $1,209,637.50. Adding back in the 178.3 paralegal hours at
$125 per hour, reducing by 20%, and applying no multiplier, we arrive at a total
fee award of $985,540.
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The district court order is therefore VACATED and the case is REMANDED for
an attorneys’ fees and costs award of $985,540 and $6,923.48 respectively.
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