Del Toro v. Magnum Construction Services, Inc.

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-62671-CIV-SMITH/VALLE

ROBERT DEL TORO,

Plaintiff, vs.

MAGNUM CONSTRUCTION SERVICES, INC., ET AL.,

Defendants. /

ORDER ADOPTING AND AFFIRMING REPORT AND RECOMMENDATION

This matter is before the Court upon Magistrate Judge Valle’s Report and Recommendation to District Judge [DE 66] (“Report”), in which she recommends denying Plaintiff’s Motion for Supplemental Attorney’s Fees [DE 60]. Plaintiff has filed Objections [DE 67] and Defendant has filed a Response in Opposition [DE 68]. For the reasons set forth below, the Report is affirmed and adopted. After Defendants admitted liability in this matter, the Court ordered Plaintiff to file a motion for attorney’s fees. See DE 39. Plaintiff filed his motion [DE 43]; the Magistrate Judge issued a Report and Recommendation [DE 55], recommending granting in part and denying in part; the Court entered an Order Affirming and Adopting Report and Recommendation [DE 57]; and then the Court entered Final Judgment [DE 58], which included the attorney’s fees awarded. Plaintiff then filed a motion for reconsideration of the Order Affirming and Adopting Report and Recommendation [DE 59]. Thereafter, Plaintiff filed his Motion for Supplemental Attorney’s Fees seeking an award for fees incurred after the filing of his initial motion for attorney’s fees. The Report addresses this latter motion for supplemental fees. The Report recommends denying Plaintiff’s Motion for Supplemental Attorney’s Fees (the “Motion”) for three reasons: (1) Plaintiff has already been awarded reasonable fees in this action and could have sought the fees requested in the instant Motion prior to entry of the Final Judgment; (2) time sought for drafting objections to the earlier Report and Recommendation awarding attorney’s fees should not be compensable because the objections were overruled by the Court; and (3) the Court should not be generous with other people’s money. Plaintiff takes issue with all three reasons. While the Motion does not state that it is brought pursuant to Federal Rule of Civil

Procedure 59(e), Plaintiff’s Objections state that Rule 59(e) is the basis of the Motion. See Obj. at 3. “The only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (brackets omitted)). Further, a Rule 59(e) motion cannot be used “to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Id. (quoting Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005) (emphasis added)). As Plaintiff notes in his Motion, approximately seven months passed between Plaintiff filing his original motion for attorney’s fees and the issuance of the Report and Recommendation addressing that motion. Several more weeks passed before the Court adopted the Report and

Recommendation and entered Final Judgment. More than half of the fees sought by Plaintiff in the instant Motion were incurred prior to the Court’s entry of the Final Judgment, which awarded attorney’s fees. Yet, Plaintiff never amended or supplemented his original motion for attorney’s fees to include these additional pre-judgment fees. The remaining fees Plaintiff seeks appear to have been incurred in the drafting of Plaintiff’s Motion for Reconsideration of Order Overruling Plaintiff’s Objections to Magistrate’s Report & Recommendation [DE 59]. By prior order, this Court found that the Motion for Reconsideration was not properly taken. Thus, because the supplemental fees incurred prior to entry of final judgment could have been sought prior to the entry of final judgment and the fees incurred in drafting the Motion for Reconsideration were not reasonable in that the Motion for Reconsideration was not well taken, the Motion for Supplemental Attorney’s Fees should be denied. Accordingly, having reviewed the Report, the record, and Plaintiff's Objections, it is ORDERED that 1. Magistrate Judge Valle’s Report and Recommendation to District Judge [DE 66] is AFFIRMED and ADOPTED and incorporated by reference into this Court’s Order. 2. Plaintiff's Motion for Supplemental Attorney’s Fees [DE 60] is DENIED. 3. Because of the need for finality, the Court will not entertain another supplemental motion for attorney’s fees by which Plaintiff seeks the fees incurred in relation to the instant Motion nor a motion for reconsideration. DONE and ORDERED in Fort Lauderdale, Florida, this 23rd day of November, 2021.

RODNEY SMITH UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record