FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE is before the Court on Citicorp Trust Bank, FSB’s Renewed Motion for Attorneys’ Fees and Supporting Memorandum of Law (Doc. No. 134; Motion), filed on June 17,201o. 1 Having reviewed the pleadings and considered the arguments of counsel as well as the remainder of the record, the Court makes the following findings of fact and conclusions of law as required by Rules 54(d)(2)(C) and 52(a), Federal Rules of Civil Procedure (Rule(s)).
I. Findings of Fact
Plaintiff initiated the instant action by filing a multi-count complaint against Defendant in Florida state court. Defendant removed the action to this Court and filed a Motion to Dismiss.
See
Notice of Removal (Doc. No. 1); Defendant Citicorp Trust Bank’s Motion to Dismiss and Supporting Memorandum of Law (Doc. No. 6; Motion to Dismiss). On May 16, 2008,
In the Complaint, Plaintiff alleged several claims against Defendant in connection with Defendant’s management of certain trust assets. Specifically, Plaintiff alleged violations of the Florida Securities and Investor Protection Act (FSIPA), Florida Statutes section 517.301(l)(a) (count one); breach of fiduciary duty and breach of trust (count two); negligence (count three); negligent misrepresentation (count four); and fraud in the inducement and unjust enrichment (count five). See generally Complaint. After Plaintiff filed the Complaint, the case was transferred to the undersigned.
Defendant filed a Motion for Summary Judgment on April 1, 2009.
See
Motion for Summary Judgment of Defendant Citicorp Trust Bank, FSB and Memorandum of Legal Authority (Doc. No. 40; Motion for Summary Judgment). On August 21, 2009,
In the instant Motion, Defendant requests “an award of the attorneys’ fees incurred in defending Plaintiffs [FSIPA] claim and related fraud claims in the amount of’ $85,350.25. See Motion at 1, 14, 16. Defendant contends that a fee award for defense of the FSIPA claim is appropriate under Florida Statutes section 517.211(6), and that a fee award is likewise appropriate for the related fraud-based claims — negligent misrepresentation and fraud in the inducement — -because those claims were “intertwined” with the FSIPA claim. See Motion at 7-13. Defendant limits its fee request to defense of the fraud claims, and does not seek fees associated with the remaining claims. See id. at 2 n. 2. Plaintiff opposes the requested relief. See generally Plaintiffs Response to Defendant’s Renewed Motion for Attorney’s Fees (Doc. No. 136; Response). Specifically, Plaintiff argues that an award of fees would be “unjust” and, alternatively, that even if an award of fees is proper as to the FSIPA claim, the other fraud claims are not sufficiently intertwined with that claim to justify a fee award for any efforts directed toward those claims. See id. at 1-13. Finally, Plaintiff argues that Defendant’s fee request is excessive. See id. at 13-16. The issues in the Motion are fully briefed and ripe for resolution.
II. Conclusions of Law
A. Propriety of Fee Award for Defense of FSIPA Claim
1. Applicable Law
Because Defendant’s “claim for attorneys’ fees sounds in state law and reaches [this Court] by way of federal diversity jurisdiction, [the Court applies] the substantive law of Florida, the forum state” including its choice of law provisions.
Trans Coastal Roofing Co., Inc. v. David Boland Inc.,
“Under Florida law, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise.”
United States v. Pepper’s Steel & Alloys, Inc.,
2. Analysis
Plaintiff argues that an award of attorney’s fees in this case would be unjust. In support of this position, he contends that there is a “vast difference in financial resources between” the parties; that Plaintiffs resources “were already depleted” and Defendant “profited” during the period Defendant served as trustee; that Plaintiffs “claims had merit and were not frivolous”; that Plaintiffs “losses were real and were caused by the Defendant’s investment decisions”; and that a fee award “would be contrary to the remedial nature and purpose of the Florida Securities Act and would serve as a deterrent to future plaintiffs with similar claims.” See Response at 7-8.
The fundamental flaw in Plaintiffs argument is that he conflates the breach of fiduciary claim — which, although it failed before the jury, survived summary judgment and a motion for directed verdict — with the FSIPA and other fraud claims — which were resolved by summary judgment in favor of Defendant. Although Plaintiff focuses on the relative merit of the former, it is only the latter for which Defendant seeks a fee award. Contrary to Plaintiffs representation, his fraud claims, including his FSIPA claim, were neither justified nor meritorious. Indeed, the Court recognized that “fraud claims do not usually lend themselves to summary disposition” but nevertheless, after extensive review of the record, determined that Plaintiffs allegations of fraud were so unsubstantiated “that under each theory of fraud advanced by Plaintiff he has failed to identify a genuine dispute of material fact that would enable a reasonable jury to return a verdict in his favor.”
See
Sum
*1305
mary Judgment Order at 12, 26.
4
For this reason, the various cases cited by Plaintiff in support of his contention that a fee award would be unjust are readily distinguishable.
See Dillon,
B. Scope of Award
1. Applicable Law
Having determined that Defendant is entitled to a fee award as to the FSIPA claim, the Court next considers the amount to be awarded, which presents a distinct question. Defendant acknowledges no entitlement as to fees for Plaintiffs non-fraud-based claims; however, in addition to fees incurred in defending against the FSIPA claim, Defendant seeks fees for its defense against Plaintiffs other fraud-based claims — negligent misrepresentation and fraud in the inducement — arguing that those claims were “intertwined” with the FSIPA claim. See Motion at 9-12.
In contrast to the FSIPA claim, the remaining fraud-based claims have no independent statutory authority for a fee award. Where, as here, “a party is entitled to an award of fees for only some of the claims involved in the litigation, i.e., because a statute or contract authorizes fees for a particular claim but not others, the trial court must evaluate the relationship between the claims” to determine the scope of the fee award.
Chodorow v. Moore,
2. Analysis
It appears to the Court that the non-FSIPA fraud claims and the FSIPA claim in this case involved a “common core” of facts and “related” legal theories.
See Chodorow,
*1308 C. Reasonable Award
Having determined that Defendant is entitled to a fee award, and that the scope of that award should encompass defense of the FSIPA claim and, to the extent interrelated, the non-FSIPA fraud claims, the Court must next address the reasonable amount of such an award. As with the propriety of a fee award, the reasonable amount of such an award is governed in this case by Florida law; which, in turn, utilizes “the lodestar[
10
] approach as developed by federal case law.”
Resolution Trust Corp. v. Hallmark Builders, Inc.,
The first step to determine a fee award utilizing the lodestar approach is to calculate the lodestar figure, that is, “ ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’ ”
Bivins v. Wrap It Up, Inc.,
1. Reasonable Hourly Rate
Taking the lodestar calculus in reverse order, the Court first addresses counsel’s hourly rates. 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.’ ”
Dillard v. City of Greensboro,
2. Reasonable Number of Hours
a. Applicable Law
As explained above, Defendant is entitled to a fee award only with respect to defense of the FSIPA claim, and, to the extent interrelated, the non-FSIPA fraud claims; Defendant is not entitled to, and does not seek, an award for defense of the non-fraud claims. In a case such as this, “where part of the attorney’s efforts are to go uncompensated, the burden is on the attorney to provide sufficient evidence for the court to make a correct division.”
Loranger v. Stierheim,
b. Analysis
Defendant requests compensation in this case for 311.1 attorney hours, divided amongst one partner and one associate. In support, Defendant proffers billing records and representations from lead defense counsel to the following effect: the billing records are accurate descriptions of the tasks performed and have been reduced in accordance with billing judgment to write-off time counsel deemed excessive or duplicative, see Abel Declaration at 7, 9; billing pertaining exclusively to non-fraud claims has been extracted, see id. at 5; and the remaining billing pertains in part to compensable time, and in part to noncompensable time, but counsel’s records do not enable precise delineation, see id. at 6-7. In light of the inability to precisely delineate the time that is block-billed, or otherwise pertains to both compensable and non-compensable work, Defense counsel has proposed a 50% reduction — with limited exception — of this remaining time. See id. at 7. In sum, after reduction for billing judgment and extraction of all clearly non-compensable time, Defense counsel has identified the remaining hours of billing that pertains in part to compensable work, and in part to non-compensable work 11 ; counsel has reduced these hours by approximately 50%, and seeks compensation for the remaining 311.1 hours. 12
*1310
The billing records submitted by Defendant in this case are voluminous, but, as discussed above, they do “not permit easy division between compensable and non-compensable hours”; nevertheless, requiring Defendant “to refashion its request[,]”
see Loranger,
Although Defendant’s imprecise billing records and Plaintiffs imprecise objections 13 make it difficult to assess a reasonable number of hours in this case, it appears to the Court that Defendant’s proffer is over-inclusive. Preliminarily, it appears to the Court that the total base number of hours included by Defendant is unreasonable in two respects — it is both duplicative 14 and excessive. 15 Moreover, *1311 it appears to the Court that some of the time that has not been extracted from Defendant’s billing charts is actually noncompensable work unrelated to the FSI-PA defense, 16 and that Defendant over-represents the extent to which the FSIPA and the other fraud claims were interrelated. 17 In other words, it appears that Defendant may have started with an unreasonably high base number of hours, and reduced that base by a percentage less than necessary to ensure recovery for only compensable work. 18
Thus, the Court elects to reduce the voluminous billing request “with an across-the-board cut.”
See Bivins,
*1312 III. Conclusion
In accordance with the foregoing and based on these findings of fact and conclusions of law, I find that Citicorp Trust Bank, FSB’s Motion for Attorneys’ Fees and Supporting Memorandum of Law (Doc. No. 118; Motion) is due to be GRANTED, in part, and DENIED, in part. I hold that Defendant is entitled to a fee award, but, for the reasons discussed above, that the Defendant’s proffered award should be reduced. Accordingly, I hold that Defendant is entitled to a fee award of $61,452.18.
Accordingly, it is hereby ORDERED:
1. Citicorp Trust Bank, FSB’s Motion for Attorneys’ Fees and Supporting Memorandum of Law (Doc. No. 118; Motion) is GRANTED, in part, and DENIED, in part.
2. Defendant is entitled to a fee award of $61,452.18.
3. The Clerk of the Court is directed to enter an Amended Judgment in favor of Defendant Citicorp Trust Bank, FSB and against Plaintiff M. Gibson Durden, individually and as Trustee for the M. Gibson Durden Charitable Remainder Unit Trust in accordance with this Order.
Notes
. Defendant previously filed a motion for attorney's fees in which it requested that the Court bifurcate its analysis and decide the issue of Defendant’s entitlement to a fee award before considering the amount of any such award. See Citicorp Trust Bank, FSB's Motion for Attorneys’ Fees and Supporting Memorandum of Law (Doc. No. 118). The Court denied the initial motion without prejudice, finding it "more appropriate to consider the issues pertaining to the entitlement to and amount of an award of attorney’s fees in toto rather than to bifurcate the issues." Order (Doc. No. 131) at 4.
. Judge Covington dismissed without prejudice Plaintiff's claims for fraud, negligent misrepresentation, and fraudulent inducement, for failure to plead with particularity as required by Rule 9(b), Federal Rules of Civil Procedure. See id. at 11-16.
. Under the plain language of section 517.211(6), fees are not restricted to prevailing plaintiffs, but rather, are available to the prevailing "party” — whether plaintiff or defendant. See Fla. Stat. § 517.211(6);
Ivans v. McKid Ltd.,
. Not only were the fraud claims without merit, but the cost of defense was at least partially aggravated by the fact that Plaintiff attempted to inject life into the claims with a last-minute affidavit, which the Court concluded must be disregarded due to its inherent inconsistency with his prior deposition testimony. See id. at 19-20 ("The Court recognizes, and does not take lightly, the heavy burden a party must carry in order to have the Court set aside a sworn affidavit as a sham. On the record in the instant case, however, the Court concludes that Plaintiff's affidavit is so inherently inconsistent with his prior deposition testimony as to warrant such action.”).
. In Taylor, the Court considered three factors in determining whether a fee award would be unjust: "the relative economic strengths of the parties”; "the public policies, if any, behind the statute authorizing attorneys’ fees in this case”; and "whether or not the claims made by the non-prevailing Plaintiff in this action were substantially justified.” See id. at 148.
In Taylor, the court found the second factor, policy, to weigh against an award of fees because the purpose of the statutory scheme underlying the Florida Blue Sky Law “is to encourage private citizens to bring appropriate legal actions under the statute...." Id. at 149 (emphasis added). It is apparent that, although analyzed separately, the relative merit and justification of the plaintiff's claims also factored into the policy consideration. See id. (finding frequent substantial fee awards “against private citizen plaintiffs would have a deterrent and chilling effect upon others who might otherwise” bring claims and finding that a fee award would not further the policies behind the statutory scheme because "this deterrent and chilling effect would particularly take place were courts to frequently award fees to prevailing securities industry defendants even in those cases where the claims of the plaintiffs, although unsuccessful, had substantial meñt or were substantially justified ") (emphasis added). Put differently, the policy implications behind a private citizen suit are derivative of the suit’s justification — public policy supports private citizen suits of meritorious claims that ultimately fail, but no public policy is vindicated when a private citizen brings a suit without merit or justification.
Thus, unlike in Taylor, in this case, although the first factor may weigh in favor of a determination that a fee award would be unjust, the final two factors weigh heavily in the opposite direction.
. Plaintiff acknowledges that prevailing defendants may recover fees under FSIPA, but nevertheless argues that this is poor policy because it "adds to the burden already suffered as a result of the investor’s investment losses!.]" See Response at 2. To that end, Plaintiff represents that although the Florida statute is “based upon the Model Uniform Securities Act, the attorneys fee provision represents a substantial departure from the Model Act.” See id. Specifically, Plaintiff represents that under "the Model Act, only successful plaintiffs who bring claims under the Act may recover attorneys fees" and that "[fjew states besides Florida have made this modification.” See id.
The Court has not independently verified Plaintiff's representation. Assuming it has merit, his argument is better presented to the Florida legislature than to this Court. Certainly, the Court may, in appropriate circumstances, consider the policy behind the Florida statutory scheme that encourages enforcement through private suit.
See Newsom,
. As the Court previously noted, the "shotgun” nature of Plaintiff's Complaint made it difficult to determine which allegations pertained to which claims. See Summary Judgment Order at 2 n. 3. Nevertheless, in the briefing on the Motion for Summary Judgment, the parties argued all fraud claims based on a common factual predicate. See Summary Judgment Order at 10, 13-14. The Court similarly considered, and ultimately decided, the summary judgment issues as to all fraud claims on a common factual predicate. See id. at 10-26.
. The Court does not suggest that Rule 9(b) is inapplicable to FSIPA.
See Slayter v. DC 701, LLC,
No. 8-07-cv-1903-T-24-EAJ,
. For example, Defendant seeks recovery for the following time on November 23, 2008: “continue to prepare summary judgment motion and brief with extensive attention to preparation of statement of facts with citations to the record.”
See
Time Record, attached as Exhibit A to Declaration of Michael A. Abel, Esq. in Support of Renewed Motion for Attorney’s Fees, attached as Exhibit A to Motion, at 23. Such work is recoverable both
*1308
in its relation to the FSIPA claim and the intertwined non-FSIPA fraud claims. In contrast, Defendant seeks recovery for the following time on October 16, 2007: “Legal research regarding pleading with particularity, failure to attach documents and economic loss rule for use in motion to dismiss.”
See id.
at 3. Notwithstanding that such work may have advanced defense of the non-FSIPA fraud claims, because it is separate and distinct from the FSIPA defense, it is not recoverable.
See generally
Motion to Dismiss (presenting distinct legal arguments for dismissal of FSIPA and non-FSIPA fraud claims); Order (Doc. No. 22) at 16-17 (dismissing claims for fraud, negligent misrepresentation, and fraud in the inducement, but not for FSIPA, for failure to plead with particularity as required by Rule 9(b));
see also New Lenox Indus., Inc. v. Fenton,
. The lodestar method provides an objective estimate, or "lodestar,” of a reasonable attorney's fee award.
See Norman v. Housing Auth. of Montgomery,
. Defendant’s requested recovery for billing pertaining to fees for fees has not been halved, and limited other entries are reduced at a different rate; thus the overall reduction appears to the Court to be slightly less than 50%.
. It is not readily apparent how many of these'hours were performed by the partner, Michael Abel, and how many by the associate, Andrew Steif. Based on Defendant's proffered hourly rates, however, it appears that the hours are comprised of approximately 129 *1310 hours by Abel, and 183 hours by Steif. Although these figures add up to a total of 312, correction for the inclusion of a higher hourly rate for one month reduces the figure to 311.1. See FN 18 infra.
. With one exception, Plaintiff has not cited or argued to the Court any specific objections. Rather, Plaintiff has simply "asserted, in the most general manner, that defense counsel took too many hours getting the case dismissed.”
See Oxford,
The only specific objection Plaintiff lodges to Defendant’s fee request mostly lacks merit. Plaintiff argues that "[t]ime spent litigating the
amount
of fees as opposed to a party’s
entitlement
of fees is not awardable” and that "[accordingly, even the time charged by Defendant's counsel in seeking attorneys fees is not recoverable since its efforts were devoted mainly to increasing the amount of its fees rather than establishing the right to recover them.”
See
Response at 15-16. Plaintiff correctly states the law,
see McMahan v. Toto,
. Because " '[t]here is nothing inherently unreasonable about a client having multiple attorneys ..., a reduction for redundant hours 'is warranted only if the attorneys are unreasonably doing the same work.' An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.' ”
Barnes,
Here, although it was not unreasonable for Abel, a partner, and Steif, an associate, to work on the case, it appears that they have unnecessarily "double-billed” for much work that does not reflect their distinct contributions to the case. As representative examples, both Abel and Steif separately billed for: reviewing court orders, attending mediation, and preparing for and attending Plaintiff's deposition. Indeed, between the two, they billed more than 37 hours preparing for and attending Plaintiffs deposition.
. As indicated by the fact that defense counsel billed approximately $160,000 through only the summary judgment stage of a case with an amount of controversy of approximately $250,000, it appears that some of Defendant's billing is excessive. For example: having already worked extensively on its motion for summary judgment counsel billed more than 6 hours crafting a mediation statement; more than three hours drafting correspondence to opposing counsel concerning refusal to agree to extension of the discovery cut-off date; and, as previously mentioned, more than 37 hours preparing for and attending Plaintiffs deposition.
. For example, although these tasks did not pertain to defense of the FSIPA claim in any respect, they all remain un-redacted in Defendant’s proffered billing records: research concerning economic loss rule; motion in limine to exclude Plaintiff's expert witness; correspondence concerning expert witness fees; research pertaining to statute of limitations for breach of fiduciary duty claims; research pertaining to fiduciary duty and negligence claims.
. See supra Part II.B.2.
. The Court notes that although, as discussed above, Defendant purports to seek expenses only at the reduced billing rate of $385 per hour for Abel and $195 per hour for Steif, it appears that for hours in October 2008, Defendant has calculated recovery based on higher hourly rates. The Court takes this mathematical error into account in crafting its overall fee reduction.
. This reduction ultimately alleviates any concern by Plaintiff that the fees sought are disproportionately high given the amount at stake in this case. See Response at 14.
. Without an hour-by-hour-assessment, the imprecise nature of the proffered billing records make it difficult to discern the exact base billing figure on which Defendant bases its calculations. Abel represents that the total amount of block-billed based hours is approximately $175,000, see Abel Declaration at 6, but based on Defendant’s requested award of $85,350.25, and its methodology in reaching that figure (an approximate 50% reduction), it appears to the Court that the base figure is $170,700.50.