YOLDAS ASKAN, Plaintiff, v. FARO TECHNOLOGIES, INC. and JOHN DOES 1-10, Defendants Case No. 6:18-cv-1122-Orl-40DCI United States District Court, M.D. Florida Signed May 21, 2019 Counsel Yoldas Askan, UK, pro se. Lloyd G. Farr, Pro Hac Vice, Nelson, Mullins, Riley & Scarborough, LLP, Atlanta, GA, Nicolette Corso Vilmos, Broad and Cassel LLP, Orlando, FL, for Defendants. Irick, Daniel C., United States Magistrate Judge Order *1 This cause comes before the Court for consideration without oral argument on the following motions: • Motion to Withdraw as Counsel for Yoldas Askan (Doc. 102, the Motion to Withdraw); • Plaintiff's Motion to Recuse Magistrate Judge Daniel C. Irick from this Case (Doc. 116, the Motion to Recuse); • Motion to Tax Costs and Award Attorneys’ Fees Against Yoldas Askan (Doc. 108, the Motion to Tax Costs); and • Faro's Motion to Quantify its Attorneys’ Fees and Costs Pursuant to This Court's Order, D.E. 103 Arising from this Court's Order to Show Cause Against Attorney Wayne Harper and Faro's Motion for Sanctions (Doc. 109, the Motion to Quantify). BACKGROUND On October 25, 2018, the Court entered an Order (Doc. 45) finding that Plaintiff's former counsel, Wayne V. Harper, Esq. is liable to Defendant for the reasonable expenses, including attorney fees, that Defendant incurred attending a hearing on Defendant's motion for clarification (Doc. 36), for which hearing Mr. Harper failed to appear. On January 23, 2019, the Court entered an Order (Doc. 93) granting in part Defendant's motion to compel discovery (Doc. 69). In that Order, the Court directed Plaintiff to respond to certain discovery requests on or before January 30, 2019 and awarded fees pursuant to Federal Rule of Civil Procedure 37(a)(5)(C). On February 6, 2019, Defendant filed a motion to quantify attorney fees pursuant to the Court's January 23, 2019 Order. Doc. 96. Plaintiff failed to respond, and the Court granted that motion as unopposed. Doc. 111. On February 5, 2019, Defendant filed a motion for sanctions pursuant to Rule 37(b)(2). (Doc. 94). Defendant alleged that, “[n]otwithstanding this Court's Order requiring Plaintiff to ‘fully respond to Defendant's RFP’ on or before January 30, 2019, Plaintiff has not attempted to comply with this Court's Order.” Id. Plaintiff did not respond to this motion and the undersigned entered a Report recommending that the case be dismissed and that Defendant be awarded its reasonable expenses, including attorney fees, caused by Plaintiff's failure to comply with this Court's January 23, 2019 Order. Doc. 97. Plaintiff did not object to the undersigned's Report, and, on March 11, 2019, the Court adopted the undersigned's Report, dismissed the case with prejudice, closed the case, and awarded Defendant its reasonable expenses, including attorney fees, caused by Plaintiff's failure to comply with the Court's January 23, 2019 Order. Doc. 103. On March 14, 2019, Plaintiff filed a motion for reconsideration of the Court's Order dismissing the case. Doc. 107. The Court denied that motion. Doc. 117. Plaintiff subsequently filed a notice of appeal to the United States Court of Appeals for the Eleventh Circuit. Docs. 120; 121. DISCUSSION 1. The Motion to Withdraw (Doc. 102) On March 10, 2019, Mr. Harper filed his second Motion to Withdraw as counsel for Yoldas Askan.[1] Doc. 102. Therein, Mr. Harper represented to the Court that Plaintiff directed him to “withdraw from this case immediately.” Mr. Harper advised that he believes that Plaintiff understands that Plaintiff will be pro se until Plaintiff retains another attorney.[2] *2 Upon review, the Court finds that the Motion to Withdraw is due to be granted. This will result in Plaintiff again proceeding pro se in this case. Plaintiff is cautioned, as set forth in more detail in this Court's prior orders (Docs. 47; 68), that he shall comply with all deadlines, the Federal Rules of Civil Procedure, and the Local Rules of this Court, and his lack of counsel – standing alone – will not be cause to extend any such deadline or an excuse for a failure to comply with any rule or order of this Court. 2. The Motion to Recuse (Doc. 116) On April 8, 2019, Plaintiff, proceeding pro se, filed a motion to recuse the undersigned from this case. Doc. 116. In the Motion to Recuse, Plaintiff alleges that the undersigned holds a personal bias or prejudice against Plaintiff “with such a high degree of antagonism that the Defendants past criminal behavior and overwhelming evidence against the Defendant in this present case became secondary to [Plaintiff's] discourteous emails to [Defendant's] counsel.” Doc. 116 at 5. Plaintiff failed to attach an affidavit in support of the Motion to Recuse. The Eleventh Circuit has stated as follows regarding the recusal of a judge: Recusal is governed by two federal statutes, 28 U.S.C. §§ 144 and 455. Under the former, a judge must recuse himself when a party to a district court proceeding “files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. The affidavit “shall state the facts and the reasons for the belief that bias or prejudice exists.” Id. “To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000). Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The test under § 455(a) is “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988). Under § 455(a), a judge has an “affirmative, self-enforcing obligation to recuse himself sua sponte whenever the proper grounds exist.” United States v. Kelly, 888 F.2d 732, 744 (11th Cir.1989). Johnson v. Wilbur, 375 F. App'x 960, 964-65 (11th Cir. 2010); see also, e.g., Lawal v. RTM, 260 F. App'x 149, 152 (11th Cir. 2006) (“[A]dverse rulings alone do not provide a party with a basis for holding that the court's impartiality is in doubt.”) (citation and internal quotations omitted); see also Liteky v. United States, 510 U.S. 540, 555-56 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). As an initial matter, the Court notes that Plaintiff failed to attach an affidavit in support of the Motion to Recuse. This alone is sufficient justification to deny the Motion to Recuse.[3] See Johnson v. Wilbur, 375 F. App'x at 965 (finding that the plaintiff was not entitled to relief pursuant to § 144 because the plaintiff failed to submit a properly sworn and verified affidavit with his recusal motion). But even if considered on its merits, the Motion to Recuse fails to state a basis for recusal, and the undersigned has no duty to sua sponte recuse pursuant to § 455(a). In an attempt to recuse the undersigned, Plaintiff cites to a number of orders adverse to Plaintiff that Plaintiff believes were wrongly decided in substance and, thus, demonstrate that the undersigned is biased. But adverse rulings are insufficient to demonstrate a Court's impartiality. See Lawal, 260 F. App'x at 152 (“[A]dverse rulings alone do not provide a party with a basis for holding that the court's impartiality is in doubt.”). And Plaintiff has failed to establish any other basis for recusal. Thus, on the record before the Court, no reasonable person would believe that bias actually exists in this case, and, thus, the Motion to Recuse is due to be denied. 3. The Motion to Tax Costs (Doc. 108) *3 On March 25, 2019, Defendant filed a Motion to Tax Costs pursuant to Federal Rule of Civil Procedure 54(d) and 35 U.S.C. § 285. Doc. 108. In the Motion to Tax Costs, Defendant seeks a ruling that it is entitled to all of its attorney fees and costs in defending this action, asserting that this case is exceptional under § 285. Id. On March 28, 2019, Plaintiff filed a response in opposition to the Motion to Tax Costs. Doc. 112. Given that Plaintiff has appealed the Court's Order dismissing this case, the Court finds that the Motion to Tax Costs is premature. Cf. Founders Ins. Co. v. Cortes-Garcia, 2013 WL 461731, at *7-8 (M.D. Fla. Feb. 7, 2013) (noting that if an appeal is pending or other issues remain unresolved, the proper procedure is to deny a motion for fees and costs pending a final resolution of the case). Therefore, the Court finds that the Motion to Tax Costs is due to be denied without prejudice pending resolution of Plaintiff's appeal. 4. The Motion to Quantify (Doc. 109) On March 25, 2019, Defendant filed a Motion to Quantify fees and costs against Plaintiff and Plaintiff's former counsel, Mr. Harper. Doc. 109. Specifically, Defendant seeks $7,140.00 in fees and costs against Plaintiff.[4] Defendant also seeks $4,402.60 in fees and costs against Mr. Harper.[5] Neither Plaintiff nor Mr. Harper responded to the Motion. Thus, the Motion is unopposed.[6] Federal Rule of Civil Procedure 37(b)(2)(C) provides, in part, as follows: Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. The Court uses the familiar “lodestar” method in determining a reasonable fee award, which is calculated by multiplying the reasonable hourly rate by the number of hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party moving for fees has the burden of establishing that the hourly rate and hours expended are reasonable. See Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). There is a strong presumption that the lodestar figure is reasonable. Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 553-54 (2010). Upon consideration, the Court, relying on its own knowledge and experience, and considering that the Motion is unopposed, finds that the hourly rates requested by Defendant are reasonable. See Norman, 836 F.2d at 1299-1300, 1303 (“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”) (citations omitted). *4 However, with respect to the award sought against Plaintiff, the Court finds that the total number of hours expended is unreasonable.[7] Defendant seeks to recover a total of 15.5 hours of attorney time for the preparation of a four-page Rule 37 sanctions motion. Indeed, Defendant seeks to recover approximately 12.2 hours simply for researching and preparing this four-page motion, which did not involve any complex legal issues and was not supported by extensive case citations or legal analysis. Based upon the Court's knowledge and experience, this was an unreasonable amount of time to spend researching and drafting what amounted to a straightforward motion that did not include any detailed discussion of the facts or law. Thus, the Court finds that Defendant's billing entries for researching and preparing the motion should be reduced by five hours. See Norman, 836 F.2d at 1303 (11th Cir. 1988); Hensley, 461 U.S. at 434 (“The district court also should exclude from this initial fee calculation hours that were not ‘reasonably expended.’ ”) (citation omitted). The Court has reviewed the remaining billing entries and finds that the remaining billing entries are reasonable. CONCLUSION Accordingly, it is ORDERED as follows: 1. The Motion to Withdraw (Doc. 102) is GRANTED as follows: a. Wayne V. Harper is terminated as counsel in this case; b. Plaintiff will proceed pro se unless and until new counsel makes an appearance on behalf of Plaintiff; 2. The Motion to Recuse (Doc. 116) is DENIED; 3. The Motion to Tax Costs (Doc. 108) is DENIED without prejudice; and 4. The Motion to Quantify (Doc. 109) is GRANTED in part to the extent that the Court awards Defendant $4,402.60 against Mr. Harper and $4,890.00 against Plaintiff.[8] The Motion to Quantify is otherwise DENIED. DONE and ORDERED in Orlando, Florida on May 21, 2019. Footnotes [1] On October 26, 2018, Mr. Harper filed his first motion to withdraw as counsel, which the Court granted. Docs. 46; 47. In its Order granting the motion, the Court advised Plaintiff that he would be proceeding pro se unless and until he retains new counsel. Doc. 47. Since that time, Plaintiff retained new counsel, who also withdrew. Docs. 51; 52; 67; 68. The Court again advised Plaintiff upon his counsel's withdrawal that Plaintiff would be proceeding pro se unless and until he retains new counsel. Doc. 68. Plaintiff then proceeded pro se for approximately one month before retaining Mr. Harper for a second time. Docs. 68; 77; 78; 79; 80; 81; 84. [2] On March 12, 2019, Plaintiff personally filed a motion to remove his counsel. Doc. 105. That Motion was denied because the case had already been closed. Doc. 106. [3] The Court notes that the Motion to Recuse also appears to be untimely. See Exime v. E.W. Ventures, Inc., 2009 WL 1423345, at *4 (S.D. Fla. May 20, 2009) (“Courts have construed the timeliness requirement of 28 U.S.C. § 144 to demand that a party raise the disqualification issue at the earliest moment after discovery of the facts supporting recusal.”) (citing United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). [4] The Court previously granted entitlement to those fees and costs in a separate Order. Docs. 94; 97; 103. [5] The Court previously granted entitlement to those fees and costs in a separate Order. Doc. 45. [6] The Court routinely grants motions as unopposed where a response has not been filed in opposition to the motion. See Doc. 54 at 12 (“Where no memorandum in opposition has been filed, the Court routinely grants the motion as unopposed.”); Local Rule 3.01(b) (“Each party opposing a motion ... shall file within fourteen (14) days after service of the motion ... a response that includes a memorandum of legal authority in opposition to the request ....”) (emphasis added). [7] Given that the Motion to Quantify is unopposed, and relying on its own knowledge and experience, the Court finds that the award sought against Mr. Harper is reasonable. See also Doc. 109-1. [8] $7,140.00 – $2,250.00 = $4,890.00