Case 0:10-cv-60786-MGC Document 913 Entered on FLSD Docket 08/23/2012 Page 1 of 5 COQUINA INVESTMENTS, v. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-60786-Civ-Cooke/Bandstra SCOTT W. ROTHSTEIN and TD BANK, N.A. Defendants. / PLAINTIFF S MOTION FOR FEES AND COSTS Plaintiff Coquina Investments ( Coquina ), by and through undersigned counsel, respectfully submits this motion for fees and costs as directed by the Court in its Omnibus Sanctions Order [ECF No. 911]. In support of its motion, Coquina states as follows: The Court ordered TD Bank and its former counsel to pay Coquina s reasonable attorney s fees and costs associated with bringing and litigating the Fourth and Fifth Motions for Sanctions and [Coquina s] Notice of Supplemental Evidence, and its reasonable attorney s fees and costs associated with litigation resulting from TD Bank s Notice of Withdrawal. Id. at 28. I. THE ATTORNEYS FEES CLAIMED ARE REASONABLE Coquina requests total attorney s fees in the amount of $463,385.50 (Mandel & Mandel $287,345.50; Gibson Dunn & Crutcher: $176,040.00). For any fee determination, the Eleventh Circuit has adopted the lodestar method for arriving at a reasonable fee award. The lodestar method consists of determining the reasonable hourly rate and multiplying that number by the number of
Case 0:10-cv-60786-MGC Document 913 Entered on FLSD Docket 08/23/2012 Page 2 of 5 hours reasonably expended by counsel. See Norman v. Housing Authority of Montgomery, 836 F. 2d 1292, 1299 (11th Cir. 1988); Harbaugh v. Greslin, 365 F. Supp. 2d 1274, 1279 (S.D. Fla. 2005). As the first step in the lodestar determination, the Court must determine whether counsel s attorneys hours were reasonably expended. With respect to hours reasonably expended, [t]he fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates. Norman, 836 F.2d 1292, 1303 (11 th Cir. 1988). This proof must be sufficiently detailed to enable the courts to evaluate the reasonableness of the hours expended. Id. See also, American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). In this case, Coquina s counsel David S. Mandel and Miguel A. Estrada both tender declarations herewith (Sealed Exhibits 1 & 2 respectively) 1 which include detailed descriptions of their firm s work and expenses incurred, as required by Local Rule 7.3(a). As the second step in the lodestar determination, the Court must also determine a reasonable hourly rate. A district court has broad discretion to determine what constitutes a reasonable hourly rate for an attorney. Norman, 836 F.2d at 1301. A 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 Id. A logical starting place for the Court is the hourly rate normally charged by the applicant. Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995) ( where an attorney requesting fees has well-defined billing rates, those rates can be used to help calculate a reasonable rate for the fee award... [N]ormal billing rates usually provide an efficient and fair shortcut for determining the market rate ). As the declarations of the undersigned and Mr. Estrada demonstrate, the rates charged by both Mandel & Mandel and Gibson Dunn are the rates normally charged by those firms for work performed. The rates also reflect counsel s experience level and the quality 1 Simultaneous with this submission, Coquina is also filing Exhibits 1 and 2 under seal. -2-
Case 0:10-cv-60786-MGC Document 913 Entered on FLSD Docket 08/23/2012 Page 3 of 5 of their work, consistent with the prevailing market rates for similar competent counsel in Miami and Washington, D.C. respectively. Although the hourly rate should generally be determined by rates prevailing in the place where the district court is located, this Court has also made it clear that such a rule does not preempt a rate determination based on the actual rate charged where the rate was reasonable based on the attorney s experience and the locale in which he practices. Review Publications, Inc. v. Navarro, 1991 U.S. Dist. LEXIS 17499 (S.D. Fla. June 26, 1991). As the Second Circuit has held, courts can rely on out-of-district rates in determining a reasonable hourly rate if the party seeking attorney s fees shows that retaining out-of-district counsel was reasonable under the circumstances as they would be reckoned by a client paying the attorney s bill. Arbor Hill Concerned Citizens Neighborhood Ass n v. County of Albany, 522 F.3d 182, 191 (2d Cir. 2008) (as amended on denial of reh g). Here there is no question that the unusual circumstances of the sanctions and contempt proceedings, id., justified Coquina s decision to retain and pay for out-of-district counsel with special expertise. Moreover, numerous courts have held that where, as here, attorney s fees are awarded as a sanction for litigation misconduct, the important purpose of deterring future misconduct further justifies using out-of-forum counsel s actual billing rates. See On Time Aviation, Inc. v. Bombardier Capital, Inc., 354 F. App x 448, 452 (2d Cir. 2009); Robbins & Myers, Inc. v. J.M. Huber Corp., 2011 WL 1598973, at *3 (W.D.N.Y. Apr. 27, 2011) (magistrate s order); Wash. Mut. Bank v. Forgue, 2008 WL 282201, at *1 (W.D.N.Y. Jan. 30, 2008). Having demonstrated the reasonableness of the time spent and the reasonableness of the rates charged, the lodestar amount the product of the two is established. There is a strong presumption that this lodestar figure represents a reasonable fee. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). The district court may adjust the -3-
Case 0:10-cv-60786-MGC Document 913 Entered on FLSD Docket 08/23/2012 Page 4 of 5 fee award upward or downward from the lodestar amount based on other considerations. Camden I Condominium Ass n v. Dunkle, 946 F.2d 768, 772 (11th Cir. 1991). The factors governing such adjustments were first articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and have been adopted by the Eleventh Circuit. 2 II. THE EXPENSES REQUESTED ARE REASONABLE The expenses incurred by Coquina s counsel are described in detail in the Mandel and Estrada declarations. The total requested expenses associated with the Sanctions Work are $19,133.26 (Mandel & Mandel: $12,339.87; Gibson Dunn: $6,793.39). All of these expenses were of the type normally charged to a fee-paying client and recoverable. See Dowdell v. Apopka, 698 F.2d 1181, 1192 (11th Cir.1983). Thus, Coquina should be fully compensated for its expenses. WHEREFORE, Plaintiff prays that the Court enter an Order directing the Defendant to pay total fees and costs of $482,518.76 (Mandel & Mandel: $299,685.37; Gibson Dunn: $182,833.39) forthwith to Plaintiff s counsel. CERTIFICATE OF GOOD FAITH CONFERENCE I hereby certify that counsel for the movant attempted to confer with counsel for TD Bank and for Greenberg Traurig in a good faith effort to resolve the issues raised in the Motion, but has been unable to do so. The undersigned emailed the relevant declarations to opposing counsel today at approximately noon, but we did not receive a response by time of filing. 2 As summarized in Dunkle, the twelve 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. Dunkle, 946 F.2d at 772 n.3. -4-
Case 0:10-cv-60786-MGC Document 913 Entered on FLSD Docket 08/23/2012 Page 5 of 5 Pursuant to Local Rule 7.3(a)(7), the undersigned declares under penalty of perjury that the foregoing is true and correct to the best of his knowledge and belief. Respectfully submitted, MANDEL & MANDEL LLP 169 East Flagler Street, Suite 1200 Miami, Florida 33131 Telephone: 305.374.7771 Facsimile: 305.374.7776 dmandel@mandel-law.com By /s/ David S. Mandel DAVID S. MANDEL Florida Bar No. 38040 NINA STILLMAN MANDEL Florida Bar No.: 843016 JASON B. SAVITZ Florida Bar No. 36444 Attorneys for Coquina Investments CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 23, 2012, a true and correct copy of the foregoing mailed to: Peter J. Covington, Esq., McGuireWoods, 2012 North Tryon Street, Charlotte, North Carolina 28202 and Steven N. Zack, Esq., Boies Schiller & Flexner LLP, 100 S.E. Second Street, Suite 2800, Miami, Florida 33131. /s/ David S. Mandel -5-