United States District Court,

S.D. Florida.

SODIKART USA, Plaintiff,

v.

GEODIS WILSON USA, INC., Defendant.

 

No. 14–CV–22461.

Signed Dec. 9, 2014.

 

David Jon Feingold, Feingold & Kam LLC, Palm Beach Gardens, FL, for Plaintiff.

 

Jordan Scott Cohen, Wicker Smith Tutan O’Hara McCoy Graham & Ford, Fort Lauderdale, FL, Brandon Jay Hechtman, Wicker, Smith, O’Hara, McCoy & Ford, P.A., Coral Gables, FL, for Defendant.

 

REPORT AND RECOMMENDATION TO DISTRICT JUDGE

ALICIA O. VALLE, United States Magistrate Judge.

*1 THIS MATTER is before the Court on Defendant Geodis Wilson USA, Inc.’s Motion for Prevailing Party Attorney’s Fees and Costs (“Motion”) (ECF No. 14), which has been referred to the undersigned for a Report and Recommendation by United States District Judge Beth Bloom. See (ECF No. 15). The Court has reviewed Defendant’s Motion, Plaintiff’s Response (ECF No. 16), Defendant’s Reply (ECF No. 17), and Defendant’s Notice of Filing Fees and Costs Supporting Documentation (ECF No. 18), and is otherwise duly advised in this matter. For the reasons set forth below, and despite concluding that Defendant is statutorily entitled to an award of its reasonable attorney’s fees and costs, the undersigned recommends that Defendant’s Motion be DENIED for failure to comply with Local Rule 7.3.

 

I. BACKGROUND

This case involves two lawsuits predicated on Plaintiff’s use of Defendant’s international shipping services in 2013. Approximately three years ago, Defendant, a freight management company, solicited Plaintiff to begin using its shipping services. See (ECF No. 1–1 ¶ 18). Defendant’s sales pitch included a representation that the cost of Defendant’s shipping services would include “complete insurance coverage against any loss for each and every shipment made by the Plaintiff.” Id. This representation allegedly induced Plaintiff to use Defendant’s shipping services for a number of years without any notable problems. Id.

 

That changed in early 2013, however, when Plaintiff used Defendant to ship approximately $200,000 in go-carts from France to Arizona. Id. ¶¶ 6–7, 13, 18. At some point during the shipping process, the goods were allegedly severely damaged. Id. ¶¶ 11–13. According to Plaintiff, when Plaintiff sought to make an insurance claim, Plaintiff learned that “none of the said insurance … had ever been obtained.” Id. ¶¶ 15, 18. As a result, Plaintiff sued Defendant twice-first in federal and then in state court. Compare Sodikart USA v. Geodis Wilson USA, Inc., No. 13–CV–22626 (S.D.Fla. July 23, 2013) with Sodikart USA v. Geodis Wilson USA, Inc., No. 14–014600–CA–01 (Fla. 11th Cir. Ct. June 5, 2014).

 

A. The Prior CaseFN1

 

FN1. All of the “ECF” citations under this heading are to Sodikart USA v. Geodis Wilson USA, Inc., No. 13–CV–22626 (S.D.Fla.2013).

 

The first case began on July 23, 2013, when Plaintiff filed a one-count federal complaint against Defendant in this Court. See Sodikart USA v. Geodis Wilson USA, Inc., No. 13–CV–22626 (S.D.Fla. July 23, 2013) (ECF No. 1) (the “Prior Case”). Plaintiff claimed that Defendant was liable for the damaged goods under the Carmack Amendment, 49 U.S.C. § 14706, because Defendant had received the goods in an undamaged condition yet delivered them in a damaged condition. Id. ¶ 22. On February 24, 2014, after the deadline for amending pleadings had expired, Plaintiff sought leave to amend its complaint to add a fraud claim. See (ECF No. 18). According to Plaintiff, Defendant had agreed to the amendment. Id. ¶ 2. Relying on Plaintiff’s representation, Magistrate Judge William Turnoff granted Plaintiff leave to amend its complaint. See (ECF No. 19).

 

*2 Shortly thereafter, Defendant appealed the Magistrate Judge’s order to District Judge Kathleen Williams, see (ECF No. 22), denying that it had agreed to the amendment after the deadline and asserting that Plaintiff had filed late to “attempt to gain tactical advantage.” Id. at 2. Construing the dispute as a “miscommunication,” Judge Williams struck Plaintiff’s amended complaint and its fraud claim. See (ECF No. 26 at 3). In doing so, however, Judge Williams advised that since Plaintiff desired to amend its complaint, Plaintiff could move under Federal Rule of Civil Procedure 16(b)(4) to modify the deadline for amending pleadings. Id.

 

Accordingly, Plaintiff moved to extend the deadline for amending pleadings so that Plaintiff could reassert its fraud claim. See (ECF No. 27). As grounds, Plaintiff explained that it had not learned of the facts giving rise to its fraud claim until four days before the original deadline for amending pleadings. Id. at 2–3. Still, Judge Williams denied Plaintiff’s motion, reasoning that because Plaintiff had learned of the factual basis for its fraud claim four days before the original deadline for amending pleadings, Plaintiff could have used those four days to seek leave to amend its complaint. See (ECF No. 30 at 3). Judge Williams thus concluded that, because Plaintiff had failed to act with reasonable diligence in pursuing its fraud claim, no good cause existed to modify the original deadline for amending pleadings. Id. The case was then reassigned to District Judge Beth Bloom. See (ECF No. 31). Judge Bloom subsequently granted summary judgment for Defendant, closing the case on September 30, 2014. See (ECF Nos. 39 and 45).

 

B. The Instant CaseFN2

 

FN2. All of the “ECF” citations under this heading and throughout the remainder of this Order are to the instant case. See Sodikart USA v. Geodis Wilson USA, Inc., No. 14–CV–22461–BLOOM/VALLE (S.D.Fla. July 2, 2014).

 

The second (and instant) case began on June 5, 2014—during the pendency of the Prior Case—when Plaintiff sued Defendant in Florida state court in Miami. See Sodikart USA v. Geodis Wilson USA, Inc., No. 14–014600–CA–01 (Fla. 11th Cir. Ct. June 5, 2014). Plaintiff asserted two claims against Defendant: (1) a statutory claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq.; and (2) a common-law fraud claim. See (ECF No. 1–1 ¶¶ 19–34). After Defendant removed the state case to this Court based on diversity jurisdiction, Plaintiff voluntarily dismissed its fraud claim, opting to proceed only on its FDUTPA claim. See (ECF No. 5). The gist of Plaintiff’s FDUTPA claim was that Defendant acted deceptively and unfairly by misrepresenting that shipments would be fully insured when, in fact, they were not. See (ECF No. 1–1 ¶¶ 18, 21).

 

Defendant then moved to dismiss Plaintiff’s FDUTPA claim as barred by the doctrine of res judicata. See (ECF No. 6). Analyzing Defendant’s res judicata argument, Judge Bloom determined that “[s]ave for one sentence, the fraud allegations contained within Plaintiff’s failed amended complaint [in the Prior Case] are identical to those in Plaintiff’s Complaint herein.” (ECF No. 13 at 3). In addition, Judge Bloom found that “Plaintiff’s claim under FDUTPA merely incorporates the same exact factual assertions found in the complaint before the Court in the Prior Case.” Id. Lastly, Judge Bloom found that Plaintiff had been “fully apprised of any and all facts upon which it premises its claim under FDUTPA well before the instant litigation was filed.” Id. at 6. Therefore, Judge Bloom concluded that Judge Williams’ denial of Plaintiff’s untimely efforts to amend its complaint in the Prior Case constituted a final judgment on the merits. Id. As a result, on August 12, 2014, Judge Bloom dismissed Plaintiff’s FDUTPA claim as barred by res judicata. Id. at 6–7.

 

*3 Defendant now moves for an award of its attorney’s fees and costs as the prevailing party in the instant case.

 

II. DISCUSSION

Under the “American Rule,” a prevailing party generally cannot recover its attorney’s fees from its opponent absent a fee-shifting agreement or statute. See, e.g., Rothenberg v. Sec. Mgmt. Co., 736 F.2d 1470, 1471 (11th Cir.1984). Thus, the threshold issue on a motion for attorney’s fees and costs by a purported prevailing party is always entitlement. See, e.g., R.L. v. Miami–Dade Cnty. Sch. Bd., No. 07–20321–CIV, 2012 WL 1441922, at *2 (S.D.Fla. Apr.26, 2012) aff’d, 757 F.3d 1173 (11th Cir.2014). Here, Defendant claims entitlement to an award of its attorney’s fees and costs under FDUTPA. Plaintiff disagrees.

 

A. Defendant is entitled to an award of its attorney’s fees and costs.

Section 501.2105 FN3 of FDUTPA provides for the discretionary award of reasonable attorney’s fees and costs to the prevailing party. Chastain v. N.S.S. Acquisition Corp., No. 08–CV–81260, 2010 WL 5463859, at *2 (S.D.Fla. Dec.29, 2012) (citing Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 101 n. 10 (Fla.2000)). Because Judge Bloom granted Defendant’s motion to dismiss, Defendant is the prevailing party in the instant case. See, e.g., Howard v. Augusta–Richmond Cnty., Ga., Comm’n, No. CV 114–097, 2014 WL 5827144, at *3 (S.D.Ga. Nov.10, 2014) (“Defendants’ motion to dismiss was granted, and the Plaintiffs’ claims dismissed. Thus, it is clear that Defendants are ‘prevailing parties.’ ”).

 

FN3. Specifically, § 501.2105(1) provides that: “In any civil litigation resulting from an act or practice involving a violation of this part, … the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.”

 

In exercising discretion to award fees and costs under FDUTPA, courts consider various factors, including:

 

(1) the scope and history of the litigation;

 

(2) the ability of the opposing party to satisfy an award of fees;

 

(3) whether an award of fees against the opposing party would deter others from acting in similar circumstances;

 

(4) the merits of the respective positions-including the degree of the opposing party’s culpability or bad faith;

 

(5) whether the claim brought was not in subjective bad faith but frivolous, unreasonable, groundless;

 

(6) whether the defense raised a defense mainly to frustrate or stall; and

 

(7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

 

Humane Soc. of Broward Cnty., Inc. v. Florida Humane Soc., 951 So.2d 966, 971–72 (Fla. 4th DCA 2007). The majority of these factors weigh in favor of awarding Defendant its reasonable attorney’s fees and costs. While several factors are either inapplicable or neutral, none favor Plaintiff.

 

(1) The scope and history of the litigation favors Defendant.

As to the first Humane Society factor, because the instant case was based on the same factual predicate as the Prior Case, it was a duplicative lawsuit. As Judge Bloom found, Plaintiff should have brought its FDUTPA claim in the Prior Case yet failed to do so “due to Plaintiff’s own lack of diligence and timeliness.” See (ECF No. 13 at 6–7). Plaintiff’s filing of the instant case multiplied and compounded the then-ongoing litigation between the parties in the Prior Case, resulting in substantial additional legal expenses. Therefore, Plaintiff should be held Plaintiff accountable for the expenses generated by its duplicative lawsuit. The first factor thus weighs in favor of awarding Defendant its fees and costs.

 

(2) Plaintiff is able to satisfy an award of fees and costs.

*4 As to the second Humane Society factor, Defendant asserts that Plaintiff appears to be able to satisfy an award of fees and costs. See (ECF No. 14 at 3). Indeed, Plaintiff alleged that it had “shipped millions of dollars” of goods using Defendant’s services over the course of their business relationship. See (ECF No. 1–1 ¶ 29). Because Plaintiff does not dispute Defendant’s claim about its ability to satisfy a fee award, and considering the financial resources typically necessary to ship millions of dollars in goods via a freight management company, the undersigned finds that Plaintiff has the ability to satisfy a fee award. The second factor thus weighs in Defendant’s favor.

 

(3) A fee award against Plaintiff would deter others from acting the same way in similar circumstances.

With respect to the third Humane Society factor, Defendant argues that “awarding fees against [Plaintiff] should discourage future litigants from trying to multiply actions by adding a FDUTPA claim after electing not to assert such a claim in a prior action, and then trying to (re)assert it, in an untimely fashion, in a new venue.” (ECF No. 14 at 3). Although Plaintiff does not respond directly to Defendant’s deterrence argument, Plaintiff does argue in general that a fee award is inappropriate because no trial took place, “the facts on their face support a FDUTPA claim,” and “there was legal precedent” for Plaintiff’s actions. (ECF No. 16 at 5). While it is true that no trial occurred and that the factual allegations arguably could have supported a FDUTPA claim had Plaintiff timely asserted one in the Prior Case, it is not true that legal precedent supported Plaintiff’s attempt to avoid the effect of res judicata.

 

Plaintiff maintains that the instant case “was filed in good faith and specifically based” on Harley v. Health Center of Coconut Creek, Inc., 518 F.Supp.2d 1364 (S.D.Fla.2007). See (ECF No. 16 at 4–5). As Judge Bloom observed, however, Plaintiff’s belief that Harley provided a legal basis to overcome a res judicata bar was due to its own misinterpretation of the law. (ECF No. 13 at 4).

 

First, Plaintiff misinterpreted Harley to mean that a federal court sitting in diversity always applies state res judicata law. See (ECF No. 13 at 4–5). But that is not the law. Harley involved the determination of the effect of a prior state court judgment on a subsequent federal case and, thus, the court applied Florida res judicata law. Id. at 5 (citing Harley, 518 F.Supp.2d at 1368). The instant case, however, involved the determination of the effect of Judge Williams’ dismissal in the Prior (federal) Case on the instant proceeding. Thus, Judge Bloom applied federal (and not Florida) res judicata law. Id. at 4 (citing Empire Fire & Marine Ins. Co. v. J. Transp., Inc., 880 F.2d 1291, 1294 n. 2 (11th Cir.1989)). Hence, Plaintiff was wrong in arguing in response to Defendant’s motion to dismiss that Harley was “directly on point.” See (ECF No. 10 at 3).

 

*5 Second, even assuming that Florida res judicata law applied in the instant case, Plaintiff also misinterpreted Harley to mean that Florida res judicata law only bars claims in a later action that are identical to claims in a prior action. See id. at 4 (Plaintiff arguing that Harley stands for the proposition that “the key is to look at the causes of action and see if they are the same”); see also id. at 5 (Plaintiff arguing that Harley “permits the filing of suits, even if they could have been raised in the first action, so long as the exact cause of action is not repeated”). Once again, Plaintiff’s interpretation of Harley is incorrect, as the application of Florida res judicata law does not turn on such a superficial analysis.

 

While Harley does say that “if the cause of action is not the same, res judicata will not bar issues which could have been raised in the prior suit but were not,” 518 F.Supp.2d at 1369, the very next sentence makes clear that “ ‘[t]he determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.’ “ Id. (quoting Atl. Shores Resort, LLC v. 507 S. St. Corp., 937 So.2d 1239, 1243 n. 3 (Fla. 3d DCA 2006)). Accordingly, assuming, arguendo, that Florida res judicata law did apply in the instant case, Harley still would not have provided any support for Plaintiff’s argument that its FDUTPA claim was not barred because, as Judge Bloom determined, “[s]ave for one sentence, the fraud allegations contained within Plaintiff’s failed amended complaint [in the Prior Case] are identical to those in Plaintiff’s Complaint” in the instant case. (ECF No. 13 at 3).

 

In sum, Plaintiff filed the instant case based on the same factual predicate underlying the Prior Case—and only after its efforts to amend its complaint to add a fraud claim in the Prior Case had failed. Giving Plaintiff every benefit of the doubt, Plaintiff may have made an honest, albeit serious, mistake in its interpretation of Harley and res judicata law. At worst, however, Plaintiff may have simply ignored the law and filed the instant case in an attempt to circumvent the unfavorable ruling in the Prior Case. At bottom, regardless of whether Plaintiff’s position was taken in good or bad faith, Plaintiff unreasonably duplicated this litigation. As a result, Defendant incurred substantial expenses defending against Plaintiff’s legal attacks on two separate fronts. Considering the inequities of Plaintiff’s litigation conduct, the undersigned concludes that one way to deter such future conduct is by awarding Defendant its fees and costs. The third Humane Society factor thus weighs in favor of Defendant.

 

(4) The remaining factors either weigh in Defendant’s favor or do not apply.

For substantially the same reasons articulated in section (3) above, the fourth and fifth Humane Society factors also weigh in Defendant’s favor. The sixth factor, however, has no bearing on this case, as Defendant was the prevailing party, not the losing party. Finally, the seventh factor is neutral at best, as Plaintiff’s FDUTPA claim was fairly routine and was not brought to resolve a significant legal question.

 

*6 In sum, because the balance of the Humane Society factors weigh in Defendant’s favor, the undersigned concludes that Defendant is entitled to an award of its reasonable attorney’s fees and costs under FDUTPA. Nonetheless, the undersigned recommends that Defendant’s Motion be denied for the reasons set forth below in section B.

 

B. Defendant failed to comply with Local Rule 7.3.

Federal Rule of Civil Procedure 54(d) and Local Rule 7.3 govern the procedure for moving for an award attorney’s fees and related nontaxable expenses in the Southern District of Florida.FN4 Under Local Rule 7.3(a), “[a] motion for an award of attorneys [sic] fees and/or non-taxable expenses and costs arising from the entry of a final judgment or order shall not be filed until a good faith effort to resolve the motion, as described in paragraph (b) below, has been completed.” S.D. Fla. L.R. 7.3(a). Local Rule 7.3(a) further provides that a motion for fees and costs “shall: … certify that a good faith effort to resolve issues by agreement occurred pursuant to Local Rule 7.3(b), describing what was and was not resolved by agreement and addressing separately the issues of entitlement to fees and amount.” S.D. Fla. L.R. 7.3(a)(8).

 

FN4. To the extent the requirements in Local Rule 7.3 about the timing and contents of a motion for attorney’s fees conflict with the requirements in Federal Rule of Civil Procedure 54(d)(2)(B), Local Rule 7.3 controls. See Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.2001); compare Fed.R.Civ.P. 54(d)(2)(B)(i) (requiring motion to “be filed no later than 14 days after the entry of judgment”) with S.D. Fla. L.R. 7.3(a)(1) (requiring motion to “be filed within sixty (60) days of the entry of the final judgment or order giving rise to the claim”). This is because Rule 54(d)(2)’s requirements apply “[u]nless a statute or a court order provides otherwise,” and the Eleventh Circuit has held that Local Rule 7.3 is a “court order” that trumps Rule 54(d)(2)’s requirements to the extent they conflict. See Tire Kingdom, Inc., 253 F.3d at 1335.

 

Local Rule 7.3(b), for its part, is entitled “Good Faith Effort to Resolve Issues by Agreement,” and describes exactly what must be done to comply with the conferral requirement.FN5 S.D. Fla. L.R. 7.3(b). Specifically, Local Rule 7.3(b) provides, inter alia, that: “a draft motion compliant with Local Rule 7.3(a)(1)-(8) must be served but not filed at least thirty (30) days prior to the deadline for filing any motion for attorneys [sic] fees and/or costs that is governed by this Local Rule;” and “[w]ithin twenty-one (21) days of service of the draft motion, the parties shall confer and attempt in good faith to agree on entitlement to and the amount of fees and expenses not taxable under 28 U.S.C. § 1920.” Id. (emphases added).

 

FN5. Although Local Rule 7.3(b) also provides that “[i]f a federal statute provides a deadline of fewer than sixty (60) days for a motion governed by Local Rule 7.3(a), the parties need not comply with this paragraph’s requirements,” there is no such federal statute applicable to this case.

 

Here, however, Defendant’s counsel’s “Local Rule 7.3(b) Certificate” merely states that he e-mailed Plaintiff’s counsel in a purported good faith effort to confer, but that Plaintiff’s counsel declined to confer at that time:

 

Counsel for the Defendant has sought to confer with counsel for the Plaintiff in a good faith effort to resolve this fee claim. Counsel for Defendant e-mailed counsel for the Plaintiff on August 26, 2014 and in response, counsel for the [Plaintiff] informed that he declined to confer at this time.

 

(ECF No. 14 at 4).

 

This is not enough to comply with Local Rule 7.3. Defendant’s counsel does not certify, as required, that he served a draft motion on Plaintiff’s counsel at least thirty days before the filing deadline. See S.D. Fla. L.R. 7.3(a)(8) & (b). Nor does Defendant’s counsel certify (again, as required) that he conferred with Plaintiff’s counsel or attempted in good faith to agree on entitlement and the amount of fees and non-taxable expenses within twenty-one days of service of the motion. Id. All that Defendant’s counsel certifies, rather, is that he e-mailed Plaintiff’s counsel, who declined to confer at that time. See (ECF No. 14 at 4). In this District, “[t]hese errors alone are sufficient reason to deny the Motion.” Norych v. Admiral Ins. Co. ., No. 08–60330–CIV–ALTONAGA, 2010 WL 2557502, at *2 (S.D.Fla. June 23, 2010) (denying motion for attorney’s fees “because [movant] failed to comply with Local Rules 7.3(a)(1) and 7.3(b)”) (citing Provide Commerce, Inc. v. Preferred Commerce, Inc., No. 07–80185–CIV–RYSKAMP, 2008 WL 360591, at *2 (S.D.Fla. Feb. 8, 2008) (denying request for attorney’s fees because the movant failed to comply with the Local Rules)); see also J.B. Hunt Transp., Inc. v. S & D Transp., Inc., No. 13–14770, 2014 WL 5011135, at *3 (11th Cir. Oct.8, 2014) (per curiam) (“Because the district court held that J.B. Hunt failed to comply with Local Rule 7.3, which constituted an independently sufficient basis to deny J.B. Hunt’s motions, we affirm.”). As Judge Altonaga said, “there is no exception in the Local Rules for futility: the parties shall make a good faith effort to resolve the motion; the movant must serve a draft motion; and the parties shall confer twenty-one days after service of the motion.” Norych, 2010 WL 2557502 at *2. Indeed, “Local Rule 7.3 would be undermined if a party did not have to serve a draft motion simply because it believed or understood the motion would be opposed.” Id.

 

III. CONCLUSION

*7 For the foregoing reasons, and despite concluding that Defendant is otherwise entitled to an award of its reasonable attorney’s fees and costs in the instant case under FDUTPA, the undersigned RECOMMENDS that Defendant’s Motion for Prevailing Party Attorney’s Fees and Costs be DENIED for failure to comply with Local Rule 7.3.

 

The parties have 14 days from the date of this Report and Recommendation to serve and file any written objections with District Judge Beth Bloom. Failure to timely file objections shall bar the parties from attacking on appeal the factual findings contained herein, except upon grounds of plain error or manifest injustice. See 28 U.S.C. § 636(b)(1); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

 

DONE AND ORDERED.