Introduction

In Florida’s federal courts, the issue of attorneys’ fees can become a contentious point of litigation, particularly when it comes to claims for prevailing party attorneys’ fees. Understanding how to challenge these claims is crucial for attorneys and parties involved in litigation. This article will explore the legal framework surrounding attorneys’ fees in federal court, the criteria for a prevailing party, relevant Florida federal case law, and strategies for challenging these claims effectively.

If you have claims about challenging attorney’s fees and costs in Florida federal court, please contract Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

[KEEP READING BELOW IMAGE]

The Legal Framework

Under federal law, the prevailing party in a lawsuit (or phase of a lawsuit) may be entitled to recover reasonable attorneys’ fees and costs, if there is a statute or contract providing for it. For example, under 28 U.S.C. § 1447(c), a federal court may award attorney’s fees and expenses to a party that successfully remands and improper removal, where those fees were “incurred as a result of the removal.” The local rules of the federal court may also provide specific guidance on how attorneys’ fees are to be calculated and awarded.

In Florida, courts generally follow the “American Rule,” which posits that each party is responsible for its own attorneys’ fees unless there is a statute or contract providing otherwise. Thus, establishing a party’s status as the “prevailing party” is critical to any claim for attorneys’ fees.

Defining the Prevailing Party

To qualify as a prevailing party, a litigant must demonstrate success on a significant issue in the litigation. The Supreme Court has clarified that a prevailing party does not have to win on every claim or theory to be entitled to attorneys’ fees. Instead, the focus is on the overall success in achieving the objectives of the litigation or phase of lawsuit.

Factors to Consider

1. Judicial Determination: The outcome of the case, whether through a judgment, settlement, or even voluntary dismissal, can affect the determination of the prevailing party.
2. Significant Relief: The nature of the relief granted may need to be significant in relation to the goals of the litigation.
3. Partial Prevailing Parties: In cases where a party prevails on some claims but not others, courts may still award attorneys’ fees but will typically adjust the award to reflect the level of success.

Challenging the Claim

When faced with a claim for attorneys’ fees, there are several strategies to challenge the prevailing party status or the amount claimed.

Keep in mind that the fee applicant bears the burden of presenting satisfactory evidence to establish that the requested amount is in accord with the prevailing market rate and that the hours claimed are reasonable in the context of: (i) the product filed and labor required; (ii) novelty and difficulty of the questions; (iii) requisite skill for the issues; (iv) time limitations imposed by the circumstances; and (v) awards in similar cases, among other factors. Winslow v. Indiheartandmind, Inc., 2022 WL 426513, at *1 (S.D. Fla. Feb. 11, 2022); Heron Dev. Corp. v. Vacation Tours, Inc., 2019 WL 4694147, *8 (S.D. Fla. Aug. 27, 2019) (cutting fee request by 75% after full trial); Ottaviano v. Nautilus Ins. Co., 717 F. Supp. 2d 1259, 1264 (M.D. Fla. 2010) (citing Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)).

1. Disputing Prevailing Party Status

• Lack of Success: Argue that the claimant did not achieve a favorable outcome on any significant issue. See, e.g., Aslam v. 1100 W. Props., LLC, 2009 WL 10669037 (S.D. Fla. July 29, 2009) (reduced from $14,560.00 to move to remand with a response to motion to dismiss).
• Settlement Implications: If the case was settled, examine the terms to assess whether they indicate that the claimant truly prevailed.

2. Improper Block Billing

Block billing refers to the practice of grouping multiple tasks into a single time entry, which can obscure the actual time spent on each task.

As the Southern District of Florida recently stated, “[b]lock billing is impermissible because it prevents the Court from determining which portion of the fees billed on a particular date is recoverable and which is not.” Lima v. Lee, 2024 WL 4171529, *7 (S.D. Fla. Aug. 19, 2024) (citing Winslow, 2022 WL 426513, at *3); but see Spanakos v. Hawk Sys., Inc., 362 So. 3d 226, 242 (Fla. 4th DCA 2023) (allowing some block-billing in state court where the court could determine from the time entry the services that were performed).

Block-billed fee entries “defy any practical review; there is no way to determine whether counsel spent an excessive amount of time teleconferencing or reviewing routine information, or whether the time was spent on more important tasks.” Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 2011 WL 13108095, at *3 (S.D. Fla. Apr. 7, 2011). Even assuming every task inside a single time entry was worthy of some expenditure (which it is not here), it is impossible to fairly divvy up the claimed hours without engaging in speculation. Id.[1]

If a fee request contains improper block-billing, the Court should reduce the requested hours or eliminate the block-billed entries. Id. Examples of improper block billing are:

• “[A]ssess dismissal of state law action on case moving forward; prepare notice of dismissal of state law action; finalize; file with court” or “begin calculating the damages based upon the bank statements and time records obtained; correspond with client re: same; draft the statement of claim, finalize and file with the court.” Winslow at *3
• “Edited motion to enforce settlement agreement per client’s instructions; drafted motion to seal settlement agreement in preparation for filing same under seal in connection with the motion to enforce; reviewed local rules in connection with procedure to file under seal.” Lima at *7.
• “Completed drafting response in opposition to Wagner’s supplemental memorandum regarding first breach doctrine; file review and researched case law in connection therewith.” Lima at *7.
• “Continued preparing Plaintiff’s Responses to the Pupke Defendants’ Request to Admit. Conferred with the client by telephone regarding discussing Plaintiff’s various discovery responses. Conferred with TG and BLS regarding the same.” Kadiyala v. Pupke, 2024 WL 4008540, at *7 (S.D. Fla. Aug. 15, 2024) (cutting all such billing).
• “For example, there are many billing entries for [attorney 1] and [attorney 2] drafting, reviewing and revising the motion to dismiss. These entries lack specificity and the work appears to be duplicative.” Infogroup Inc. v. Office Depot Inc., 2024 WL 4110526, *3 (S.D. Fla. Aug. 21, 2024).

With this in mind:

• Challenge Vague Descriptions: Review billing statements for entries that combine various tasks without detailing the time spent on each. This lack of specificity makes it difficult to assess the reasonableness of the fees and can lead to reductions in the claimed amount.
• Demand Itemization: Request a more detailed breakdown of services rendered to ensure transparency in billing. Courts often view block billing unfavorably.

3. Improper Duplicative Billing for the Same Task

Duplicative billing occurs when multiple attorneys bill for the same work or when a single attorney bills for the same task multiple times.

To recover time for multiple attorneys, the fee applicant bears the burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation. Lima, 2024 WL 4171529 at *6 (citing Barnes, 168 F.3d at 423; holding applicant did not satisfy burden showing time spent by each attorney reflects distinct contribution to the case); but see Spanakos, 362 So. 3d at 241 (Fla. 4th DCA 2023) (allowing fees where distinct contribution shown).

The Southern District of Florida noted the problem with too many attorneys on a matter or filing: “[w]ith so many cooks making the broth, the need for internal conferences to keep everyone on the same recipe rises dramatically and undermines the reasonableness of those billings.” Winslow at *3.

Where “one attorney could do in this case [that which] was consistently performed by at least three,” the Court should remove all the additional attorneys’ time. Heron Dev. Corp., 2019 WL 4694147 at *8 (cutting 2/3 billing where one attorney could do what was consistently performed by three). As illustrated in Infogroup, “[f]or example, there are many billing entries for [attorney 1] and [attorney 2] drafting, reviewing and revising the motion to dismiss. These entries lack specificity and the work appears to be duplicative.” Infogroup, 2024 WL 4110526 at *3.

Attorneys within a firm billing for internal conferences with one another is improper and should be cut. Winslow at *3 “Excessive, redundant, or otherwise unnecessary hours should be excluded from the amount claimed.” Id.

With this in mind:

• Identify Duplications: Scrutinize the billing records for instances where two or more attorneys claim fees for attending the same meeting, preparing the same document, or performing similar tasks.
• Argue for Adjustments: Present evidence that these duplicative entries inflate the fee claim and should be adjusted to reflect only one attorney’s work.

4. Improper Billing for Clerical or Administrative Tasks

Attorneys may sometimes bill for tasks that are purely clerical or administrative in nature, which should not typically be charged at attorney rates.

Entries for clerical or administrative tasks must be excluded. Winslow at *4 (citing Thompson v. Branch Banking & Tr. Co., 2020 WL 7061558, at *3 (S.D. Fla. Nov. 10, 2020), report and recommendation adopted 2020 WL 7059353 (S.D. Fla. Dec. 2, 2020); Kadiyala, 2024 WL 4008540 at *7. “Purely clerical or secretarial tasks that require no legal skills or training, such as converting pleadings to PDF, faxing and mailing, updating lists and calendars, and filing or e-filing documents, should not be billed at a paralegal rate regardless of who performs them.” Winslow at *4; but see Spanakos, 362 So. 3d at 243 (Fla. 4th DCA 2023) (distinguishing clerical work from certain work requiring attorney involvement).

With this in mind:

• Challenge Clerical Tasks: Identify any charges related to administrative tasks such as filing documents, scheduling meetings, or other duties that do not require legal expertise.
• Seek Rate Adjustments: Argue that these tasks should be billed at a lower rate or removed from the fee request entirely, as they do not reflect the legal work performed.

5. Unnecessary and Excessive Fees

Not all billed hours are necessarily reasonable or necessary, and excessive fees can lead to a significant increase in the total claim.

Where the billing logs contain unnecessary or excessive hours, the Court must cut them. Lima, 2024 WL 4171529 at *7. “Excessive, redundant, or otherwise unnecessary hours should be excluded from the amount claimed. Id.; Winslow at *3; Heron at *4.

As to unnecessary hours, costs, and fees, under 28 U.S.C. § 1447(c), the court may only award fees and expenses that “incurred as a result of the removal.” Likewise, the Southern District of Florida recently found a fee applicant cannot claim work “not made necessary by a [non-prevailing party’s] unreasonable conduct.” Gen. Star. Nat’l Ins. Co. v. MDLV, LLC, 2024 WL 3994657, *16–17 (S.D. Fla. Aug. 13, 2024) (holding fee applicant “is not entitled to pre-litigation work because it was not made necessary by an insurer’s unreasonable conduct.”). The Southern District of Florida has held it must exclude “time spent on discrete and unsuccessful claims.” Valdes v. Kendall Healthcare Grp., Ltd., 2024 WL 4133869, *8 (S.D. Fla. July 19, 2024) (holding an 80% reduction on hours sought).

For example, the Southern District of Florida recently found it unnecessary and excessive to bill for researching and writing a motion to dismiss when the court’s ruling on a prior dispositive motion was still pending (such as occurred here), or when seeking fees for an improper remand (as here). Lima at *7; Treasure Cay Condo. Ass’n, Inc. v. Frontline Ins. Unltd. Co., 2023 WL 1444995, at *8 (S.D. Fla. Jan. 13, 2023) (quoting Aslam, 2009 WL 10669037 (S.D. Fla. July 29, 2009) (“The Plaintiff is not entitled to reimbursement for hours spent in connection with the Motion to Dismiss as these are not fees associated with the removal of this action.”)).

The Southern District of Florida also reduced fees to account for submission of fees incurred on tasks not related to the successful claim, such as reimbursement for defense of challenges to standing (such as occurred here on the motion to dismiss and remand). Heron, 2019 WL 4694147at *8 (“further reduction is necessary to account for Plaintiff’s submission of fees incurred on tasks not related to the successful ACPA claim.”).

As to unreasonable, excessive hours, fees, and costs, in diversity cases, the determination of a reasonable, non-excessive attorney fee is governed by state law, and the fee applicant bears the burden of presenting satisfactory evidence to establish that the requested amount is in accord with the prevailing market rate and that the hours claimed are reasonable in the context of: (i) the product filed and labor required; (ii) novelty and difficulty of the questions; (iii) requisite skill for the issues; (iv) time limitations imposed by the circumstances; and (v) awards in similar cases, among other factors. Winslow at *1; Heron at *8 (cutting fee request by 75% after full trial); Ottaviano, 717 F. Supp. 2d at 1264.

“Courts are often faced with inadequate fee applications or with claims for hours or fee rates which seem excessive.” Norman, 836 F.2d at 1303. On excessive fees, the Florida Supreme Court has stated:

Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fees is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation.

The Florida Bar v. Richardson, 574 So. 2d 60, 62 (Fla. 1990) (quoting Baruch v. Giblin, 122 Fla. 59, 63 (Fla. 19350) (emphasis in Richardson) (distinguished in Fla. Bar v. Strems, 357 So. 3d 77, 93 (Fla. 2022) as to the suspension amount for excessive fees). A fee is clearly excessive when after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Id.

The court is an expert in its own right when analyzing a fee request:

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.

The court may take into account the overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time, as “the essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Infogroup, 2024 WL 4110526 at *4 (applying 50% reduction to fees). The court must consider “what a reasonable, paying client would be willing to pay,” bearing in mind “all of the case-specific variables that courts have identified as relevant to the reasonableness of attorney’s fees.” Cohan v. Host 110 Atlantic Ave., LLC, 2024 WL 3861850, *1–4 (S.D. Fla. Aug. 1, 2024) (awarding only $3,500 in attorney’s fees to prosecute an ADA lawsuit to default final judgment, including for writing the Complaint, motion for default, and motion for default judgment).

Likewise, as officers of the court, fee applicants themselves must exercise “billing judgment” to exclude from their fee applications 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. Winslow at *2 (emphasis in opinion); Am. Civ. Liberties Union of GA. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (holding applicant failed to exercise this billing judgment) (citing cases reducing fee award by $75K and $100K as excessive); Infogroup at *2–4 (“I find the hours billed by these five attorneys should be substantially reduced. The billing records reveal numerous instances of excessive billing, redundancies, vague entries, and redactions that make it difficult for the Court to assess the validity of the time spent.”).

“[A]ll the time a lawyer spends on a case is not necessarily the amount of time for which he can properly charge his client [or an opposing party].” Richardson at 63. The Florida Supreme Court held there is “absolutely no justification” to bill “a minimum of forty-five minutes to prepare a page of a document” without regard to the amount of time actually spent or the reasonable time to accomplish a particular task. Richardson at 63.

Under this analysis, the Southern District of Florida has cut dramatically where excessive time is claimed for drafting and researching pleadings and legal memoranda, preparing for status conferences, and preparing and producing expert work. Barnes, 168 F.3d 423 at 432–33. The Southern District of Florida has cut for excessive time discussing matters internally and with opposing counsel. Kadiyala, 2024 WL 4008540 at *6 n.5.

Looking at the range of what is unreasonable for specific tasks within a case, in Barnes the Southern District of Florida cut 73% to 93% on the following hours determined to be excessive:

• Complaint (58 pages), cut 107.88/147.88 hours (73%) (had alleged $34K to research, draft, and file a 58-page complaint) leaving only 40 hours. Barnes at 432.
• Legal briefs (100 pages), on preliminary injunction and motion to dismiss, cut 111.62/119.99 hours (93%), as missing any clear “indication of the distinct contribution each attorney made to the task of drafting the briefs . . .[nor] clarify the billing records by describing what each attorney contributed.” Barnes at 433.
• Preparing for status conference, cut 43/51 hours (84%) across four attorneys, as only two attorneys should have needed 8 hours total. Barnes at 433.
• Preparing expert and in-court demonstration, cut 50.5 hours across three attorneys as duplicative and excessive to prepare expert and attend. Barnes at 434.
•  

Looking at what is unreasonable to reach a specific stage of litigation across different cases, the Court has determined the following:

Amount Awarded	Work Done
$1,675.00 (reduced from $14,560.00)	To obtain a remand and respond to a motion to dismiss. Aslam v. 1100 W. Props., LLC, 2009 WL 10669037 (S.D. Fla. July 29, 2009) (adopting 2009 WL 10667850 (July 2, 2009)).
$3,500.00 (10 hours)	To prosecute an ADA lawsuit to default final judgment, including for researching and drafting the Complaint, motion for default, and motion for final judgment. Cohan v. Host, 2024 WL 3861850at *1–4.
$8,015.00 (20.9 hours)	To litigate a case over a 10-month period, including researching and drafting the complaint, attending mediation, researching and drafting the motion for summary judgment, and obtaining final judgment. Cohan v. Subculture Coffee PGA, Inc., 2024 WL 3744358, *2–3 (S.D. Fla. July 23, 2024).
$9,992.50 (reduced from $14,793.08)	For removal to federal court and defeat of motion for summary judgment, after finding the number of hours claimed to be unreasonable to prevail in the lawsuit altogether. Machado v. Da Vittorio, LLC, 2010 WL 2949618 n.1 (S.D. Fla. July 26, 2010).   The Machado court found “excessive fees” where “counsel spent thirty-six minutes reviewing a two-page order” and where “counsel reviewed Da Vittorio’s counsel’s three-page renewed motion to withdraw for 24 minutes.” Machado at *4.
$14,625.00 (32.5 hours)	To litigate a case fully through summary judgment, with mixed success. Valdes, 2024 WL 4133869at *11.
$103K (reduced from $191K)	To fully litigate an entire case through the trial level and appeal. Gen. Star, 2024 WL 3994657at *16–17.

With this in mind:

• Assess Necessity: Review the work performed to determine whether it was necessary for the case’s resolution. Challenge any tasks that appear to be excessive or outside the scope of what was required to achieve the outcome.
• Compare Market Rates: Compare the claimed rates against prevailing market rates for similar services in the jurisdiction. If the rates are significantly higher, argue for a reduction based on community standards.

Relief from Judgment for Excessiveness and Unreasonableness of Fee Request

Under Federal Rules of Civil Procedure 59 and 60, and the court’s inherent authority, the court may amend or relieve certain portions of its remand order as to entitlement to fees. Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 60(b)(6).

Fee awards are generally limited to reasonable and just fees. Sometimes this limitation is express in the statutes.

In some instances, parties may seek relief from a judgment that awards excessive or unreasonable attorneys’ fees. Federal Rules of Civil Procedure 59 and 60 may provide a mechanism for obtaining relief from a judgment or order for various reasons, including:

1. Excessiveness of the Fee Award

Demonstrating Abuse of Discretion: Courts have discretion in awarding attorneys’ fees, but this discretion can be challenged if it results in a clear abuse. For instance, if a court awards fees that significantly exceed the reasonable market rate or hours worked, a party can argue that the fee award is excessive.

2. Unreasonableness of the Fee Request

Challenging the Basis of Calculation: A party may argue that the fee request was based on flawed calculations, improper billing practices, or other unreasonable factors. If the initial fee award was predicated on erroneous interpretations of the law or the facts, this can serve as grounds for relief.

3. Procedural Deficiencies

Failure to Comply with Local Rules: If the claimant failed to comply with procedural requirements set forth in local rules—such as failing to itemize fees or provide adequate documentation—this may justify relief from an order granting attorneys’ fees.

4. Timeliness of Motion

• Filing for Relief: A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time, generally not exceeding one year from the judgment’s entry, unless based on a more severe reason. Timeliness is crucial in preserving the right to challenge an excessive fee award.

Using improper removal as an example, although the removal statute provides the court “may” award costs and fees, it can only do so where such an award is “just.” 28 U.S.C § 1447(c); Martin v. Franlkin Cap. Corp., 546 U.S. 132, 133 (2005). The decision to award fees should recognize Congress’s desire to deter removals intended to prolong litigation, while not undermining Congress’s basic decision to afford defendants a right to remove as a general matter. Martin at 133. Thus, the court need not grant fees whenever a removal fails. Bentley v. Miami Air Int’l, Inc., 377 F. Supp. 3d 1337, 1344 (S.D. Fla. 2019).

The court may deny fees where the face of the Complaint does not plainly show that diversity jurisdiction was patently lacking. Wendt v. Universal Protection Serv., LLC, 2023 WL 4781777, *8 (S.D. Fla. July 27, 2023) (denying fees); Bauknight v. Monroe Cnty., Fla., 446 F.3d 1327, 1329 (11th Cir. 2006) (affirming denial of fees for improper removal). The court may deny fees even where the defendant does not respond, where the proceedings “made it at least arguably rational for the Defendants to remove the case.” In re Trasylol Products Liability Litigation, 754 F. Supp. 2d 1331, 1338 (S.D. Fla. 2010) (denying fees on same); Ruiz v. Ringling College of Art and Design, Inc., 656 F. Supp. 3d 1340, 1362 (M.D. Fla. 2023) (denying fees as removal argument had “some support in the law.”); Point Conversion, LLC v. Tropical Paradise Resorts, LLC, 339 F. Supp. 3d 1350, 1359 (S.D. Fla. 2018) (denying fees).

Where the removing party has “offered a credible reason for removal, even if it later becomes clear that the removing party was wrong on the facts or the law,” a request for attorneys’ fees should be denied. Bracciale v. Valdez, 2017 WL 4117806, at *8–9 (M.D. Fla. Sept. 18, 2017). Likewise, the Court may deny a request for attorney’s fees for improper removal, where the case raised a unique set of facts and issues affecting removal. Young v. Norwegian Seafarers’ Union, 2012 WL 13015042, *3 (S.D. Fla. Sept. 28, 2012) (denying fees).

Even where the removing party lacks an objectively reasonable basis for seeking removal, the Court has discretion to consider unusual circumstances that warrant declining to award fees. Thermoset Corp. v. Building Materials Corp. of Am., 752 Fed. App’x 902, 904 (11th Cir. 2018) (citing Martin at 141).

If a fee request is particularly unreasonable or excessive, a party may seek relief from the fee award.

Conclusion

Challenging claims for prevailing party attorneys’ fees in Florida federal courts requires a nuanced understanding of both the legal standards and the factual context of the case. By carefully assessing the prevailing party status, scrutinizing the reasonableness of the claimed fees, and addressing improper billing practices, parties can mount effective challenges that may lead to reduced fees or even a denial of the claim. Familiarity with relevant case law will further strengthen these challenges. Additionally, understanding the process for seeking relief from judgments based on excessiveness and unreasonableness can provide crucial avenues for defending against inflated fee claims. As attorneys navigate this complex area, thorough preparation and attention to detail will be key in advocating for their clients’ interests.

If you have claims about challenging attorney’s fees and costs in Florida federal court, please contract Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

---

[1] Similarly, “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.” Miller’s at *4. Billing entries that fail to sufficiently account for time expended, either in whole or in part, will not support a fee request and must be stricken. Id.