Opinion
19-CV-62408-SINGHAL/VALLE
08-19-2022
PHILIPPE CALDERON, ANCIZAR MARIN, AND KELLI BOREL RIEDMILLER, on behalf of themselves and all others similarly situated, Plaintiffs, v. SIXT RENT A CAR, LLC, Defendant.
REPORT AND RECOMMENDATION TO DISTRICT JUDGE,
ALICIA O. VALLE UNITED STATES MAGISTRATE JUDGE
This cause comes before the Court upon Plaintiff/Appellee Ancizar Marin's Application for Attorneys' Fees (ECF Nos. 159 and 165) (the “Application”). United States District Judge Raag Singhal has referred the Application to the undersigned for a report and recommendation. (ECF Nos. 161, 169). The undersigned has reviewed the Application and is otherwise advised in the matter. For the reasons set forth below, the undersigned recommends that the Application be DENIED WITHOUT PREJUDICE.
Except for the addition of a reply memorandum in ECF No. 165, ECF Nos. 159 and 165 are the same. Compare (ECF No. 159), with (ECF No. 165). Accordingly, although this Order cites solely to ECF No. 165, it disposes of both motions as one Application.
I. BACKGROUND AND DISCUSSION
The extended history of this litigation has been summarized in numerous Orders of the District Court and need not be repeated. See, e.g., (ECF No. 30) (District Court's Order on Defendant's Motion to Dismiss); (ECF No. 127) (Order on Motion to Compel Arbitration); (ECF No. 132) (Joint Status Report and Motion for Amended Scheduling Order); (ECF No. 134) (Omnibus Order on Discovery Motions). In summary, Plaintiff Marin filed a putative class action complaint against Defendant alleging violations of the Florida Deceptive and Unfair Trade Practices Act and the Florida Consumer Collections Practices Act. See (ECF No. 165 at 59). Defendant filed a Motion to Compel Arbitration of Plaintiff Marin's claims. Id. at 60. The District Court denied Defendant's Motion to Compel Arbitration. Id. Defendant appealed the District's Court ruling to the Eleventh Circuit. Id. at 61. The Eleventh Circuit affirmed the District Court's denial of the Motion to Compel Arbitration and also denied Defendant's Petition for Rehearing. Id. Thereafter, Plaintiff filed the Application in the Eleventh Circuit, which transferred it to the District Court. Id. at 1.
In the Application, Plaintiff Marin seeks to recover his appellate attorneys' fees as the “prevailing party” on the Eleventh Circuit's affirmance of the District Court's denial of Defendant's Motion to Compel Arbitration. Id. at 6-7. Defendant objects to the Application on several grounds, including challenging the request for appellate attorneys' fees as premature because Plaintiff Marin has not prevailed on the merits of his claim. Id. at 62-68. In reply, Plaintiff Marin “recognizes that the merits of the underlying claims [that] provide the basis for prevailing party attorney fees have not yet been decided.” Id. at 72.
A party is not a prevailing party until they have prevailed on the merits of at least one of their claims. Ellis v. Wright, 293 Fed.Appx. 634, 634 n.1 (11th Cir. 2008). Here, Plaintiff Marin has succeeded solely on one issue-an interlocutory appeal. Therefore, at this juncture of the case, Plaintiff Marin is not the prevailing party for purposes of an award of attorneys' fees and costs. The Application is therefore premature. See, e.g., Lustig v. Bear Stearns Residential Mortg. Co., No. 08-CV-14419, 2010 WL 11519359, at *1 (S.D. Fla. June 3, 2010) (exercising court's discretion to deny without prejudice motion for fees as premature); see also Macneil v. Bengal Props. Inc., 20-CV-62038-RS (S.D. Fla. June 9, 2022) (ECF No. 186) (denying without prejudice motions for attorneys' fees and bill of cost pending ruling on dispositive motions); U.S. for use and benefit of GLF Constr. Corp. v. FEDCON Joint Venture, No. 17-CV-1932, 2021 WL 1186839, at *2 (M.D. Fla. Mar. 30, 2021) (denying motions for attorney's fees and costs without prejudice pending resolution of motion for a new trial).
II. RECOMMENDATION
For the reasons set forth above, the undersigned recommends that Plaintiff/Appellee Marin's Application for Attorneys' Fees (ECF Nos. 159 and 165) be DENIED WITHOUT PREJUDICE. Plaintiff/Appellee should be permitted to re-file his request for attorneys' fees and costs (if appropriate) following the disposition of the merits of his claim.
Within seven (7) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this District. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. J. R. 4(b). Failure to timely object waives the right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2022); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE AND ORDERED