Party Notice: Deborah Asin Plaintiff vs. Body Details Fort Lauderdale LLC Defendant

On December 05, 2017 a Party Notice was filed involving a dispute between Asin, Deborah, and Body Details Fort Lauderdale Llc, for 3 in the District Court of Broward County.

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Filing# 157601077 E-Filed 09/16/2022 04:05:19 PM

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY,
FLORIDA

DEBORAH ASIN, CASE NO.: COCE-17-021743 (49)
Plaintiff,

BODY DETAILS FORT LAUDERDALE, LLC,
Defendant.
i

NOTICE OF FILING FEDERAL ORDERS AND OPINIONS

Defendant BODY DETAILS FORT LAUDERDALE, LLC by and through the

undersignedco-counsel,hereby files the attached cases, including:

1. Tropical Paradise Resorts v. Jbshbm, 2021 U.S. Dist. LEXIS 84584 (SDFL 2021), *15-

16.

2. Victory Int'l (USA), LLC v. Inc.,2009 U.S. Dist.
Perry Ellis Int'1, LEXIS 57263; 2009

WL 1956236 (SDFL 2009), *5.
3. HRCC, Ltd. v. Hard Rock Cafe Int'l (USA), Inc., 2018 U.S. Dist. LEXIS 67703 (MDFL

2018), *10, 12-13.

4. Burgos v. SunTrust Bank, N.A., 2020 U.S. Dist. LEXIS 57233; 2020 WL 2299937il

(SDFL 2020), *17-18.

5. Procaps S.A. v. Patheon Inc.,2017 U.S. Dist. LEXIS 131349; 2017 WL 35369172 (SDFL
2017), *31-33,63-65,88-89.

6. Chow v. Chak Yam Chau, 640 Fed. Appx. 834, 842-843; 2015 U.S. App. LEXIS 19931

Cir. 2015), *9-12, 23-24.
(llth

Also attached to Defendant's Notice of FilingDecisions Construing Section of Diamond Aircraft v. Horowitch.
1

2
Also attached to Defendant's Notice of Filing Decisions Construing Section of Diamond Aircraft v. Horowitch.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/16/2022 04:05:19 PM.****
Asin v. Body Details
Notice of FilingFederal Orders and Opinions

7. Fuccillo v. Century Enters., 2020 U.S. Dist. LEXIS 32887; 2020 WL 1431714 (MDFL

2020), *12-13.

8. Covington v. Ariz. Bev. Co., LLC, 2011 U.S. Dist. LEXIS 95198; 2011 WL 11796786

(SDFL 2011), *13-14.

9. Maale v. Kirchgessner,2011 U.S. Dist. LEXIS 18506; 2011 WL 1565912 (SDFL 2011),

*21.

10. Korman v. 2018 U.S. Dist. LEXIS 207072; 2018
Iglesias, WL 6978693 (SDFL 2018),

*16-17.

CERTIFICATE OF SERVICE

I hereby certifythat a true and correct copy of the foregoingwas served via eservice

through the Florida e-Portal system on. Eric Edison, Frank Florio, and Craig Trigaboff,counsel

and Mitchell Sens, co-counsel for Defendant.
for Plaintiff;

LEVINE LEGAL, P.A.
Co-CounselMDefendant
9124 Griffin Road
Cooper City,FL 33328
954-585-3967
1-954-367-9410 Fax
david@levine-legal.com
sarah@levine-legal.com

/s/David Levine
David A. Levine, Esq.
Fla. Bar No. 84429

Page 2 of 2
Tropical Paradise Resorts v. Jbshbm
United States District Court for the Southern District of Florida

April 30, 2021, Decided; April 30, 2021, Entered on Docket

CASE NO. 18-CV-60912-BLOOM/VALLE

Reporter
*
2021 U.S. Dist. LEXIS 84584
Levad, David T. Pollock, John P. Bovich, PRO HAC
TROPICAL PARADISE RESORTS, LLC, d/b/a
VICE, Reed Smith LLP, San Francisco, CA; Edward
RODEWAY INN & SUITES, a Florida Limited Liability
Maurice Mullins, Reed Smith LLP, Miami, FL.
Company, Plaintiff,v. JBSHBM, LLC, a Florida Limited
Company, and POINT CONVERSIONS, LLC, a
Liability
Judges: ALICIA O. VALLE, UNITED STATES
Delaware Limited LiabilityCompany, Defendants.POINT
MAGISTRATE JUDGE.
CONVERSIONS, LLC, a Delaware Limited Liability
Company, Counterclaim Plaintiff,v. TROPICAL
Opinion by: ALICIA O. VALLE
PARADISE RESORTS, LLC, d/b/a RODEWAY
INN &
SUITES, a Florida Limited LiabilityCompany, and
CHOICE HOTELS INTERNATIONAL, INC., a Maryland
Opinion
Corporation, Counterclaim Defendants.

Subsequent History: Adopted by, Motion granted by,
REPORT AND RECOMMENDATION TO DISTRICT
in part, Motion denied by, in part, Objection overruled
JUDGE
by, Costs and fees proceeding at, Motion denied by, As
moot Tropical Paradise Resorts v. Jbshbm, 2021 U.S.
TH IS MATTER is [*2] before the
upon Court
Dist. LEXIS 96719 (S.D. Fla., May 21, 2021) Defendant Tropical Paradise Resorts
Plaintiff/Counter
LLC's ("Rodeway") and Counterclaim Defendant Choice
Prior History: Tropical Paradise Resorts v. Co. V.,
Hotels International,Inc.'s ("Choice," and together with
2018 U.S. Dist. LEXIS 238659 (S.D. Fla., Sept. 5, 2018)
Rodeway, the "Counterclaim Defendant's") Motion for
Prevailing Party Fees and Costs pursuant to Florida's
Counsel: [*1] For Tropical Paradise Resorts, LLC, A
Deceptive and Unfair Trade Practices Act (ECF No.
Company doing business as,
Florida Limited Liability
147) (the "Motion"). United States District Judge Beth
Rodeway Inn & Suites, Plaintiff: Ana Maria Barton,
Bloom has referred the Motion to the undersigned for a
LEAD ATTORNEY, Reed Smith LLP, Miami, FL;
Report and Recommendation. (ECF No. 148).
Andrew M. Levad, David T. Pollock, John P. Bovich,
PRO HAC VICE, Reed Smith LLP, San Francisco, CA; Having reviewed the Motion, Defendant/Counterclaim
Edward Maurice Mullins, Reed Smith LLP, Miami, FL. Point LLC's Response in
Plaintiff Conversions,
For JBSHBM, LLC, A Florida Limited LiabilityCompany, Opposition to the Motion (ECF No. 151), Counterclaim
Defendant: Peter J. Solnick, LEAD ATTORNEY, Solnick Defendants' Reply (ECF No. 152), the Notices of
Law P.A., Aventura, FL. Supplemental Authority (ECF Nos. 153, 154), and the
Notice of Previously Awarded Fees and Costs (ECF No.
For POINT CONVERSIONS, LLC, A Delaware Limited
160), and being otherwise duly advised in the matter,
LiabilityCompany, Defendant, ThirdParty Plaintiff, the undersigned recommends that the Motion be
Counter Claimant: Kenneth Wayne Ferguson, Jr., LEAD GRANTED IN PART AND DENIED PART. As IN
ATTORNEY, Fort Lauderdale, FL.
discussed below, the undersigned recommends that the
For Choice Hotels International, Inc., ThirdParty Counterclaim Defendants be awarded $233,657.73 in
Defendant: Edward Maurice Mullins, LEAD ATTORNEY, attorneys' fees and $16,037.52 in costs.
Ana Maria Barton, Reed Smith LLP, Miami, FL.

For Tropical Paradise Resorts, LLC, A Florida Limited
I. BACKGROUND
LiabilityCompany, Plaintiff: Ana Maria Barton, LEAD
ATTORNEY, Reed Smith LLP, Miami, FL; Andrew M. The procedural history of this case is set forth in the
Page 2 of 12
2021 U.S. Dist. LEXIS 84584, *2

prior opinions of the District Court and Eleventh under the Patent Act [then] or in the future." See (ECF
which are incorporated by reference. See
Circuit, [*3] Nos. 22-1 at 3, 112 at 2). On June 11, 2018, Point
(ECF Nos. 112, 142); Tropical Paradise Resorts, LLC v. Conversions filed its Answer, Affirmative Defenses, and
JBSHBM, LLC, No. 18-CV-60912, 2018 U.S. Dist. Counterclaims to Rodeway's First Amended Complaint.
LEXIS 173893, 2018 WL 4932282, at *1 (S.D. Fla. Oct. See genera//y (ECF No. 23). The counterclaims were
10, 2018), affd sub nom. Tropical Paradise Resorts, alleged against Rodeway initial Plaintiff)
(the and, for the
LLC v. Point Conversions, LLC, 806 F. App'x 966 (llth first time, against Choice, the franchisor. /d. (spanning
Cir. 2020); see a/so /n re Point Conversions, LLC, 830 40 pages and 106 paragraphs). Thereafter, on July 30,
F. App'x 319, 320 (Fed. Cir. 2020); Point Conversions, 2018, Point Conversions filed its First Amended
LLC v. Lopane, No. 20-CV-61549, 2021 U.S. Dist. Counterclaims against Rodeway and Choice, which
LEXIS 5790, 2021 WL 328533, at *2 (S.D. Fla. Jan. 8, expanded the [*5] counterclaims (to 55 pages and 354
2021), report and recommendation adopted, 2021 U.S. paragraphs). See genera//y (ECF No. 50).
Dist. LEXIS 18335, 2021 WL 327536 (S.D. Fla. Feb. 1,

2021) (discussing Point Conversions' litigationhistory, According to Point Conversions' First Amended
Counterclaims, Point Conversions had the exclusive
including this case and other actions in federal and state
courts). Below is a surnrnary of the proceedings relevant rights to the only software legally permitted to convert
to the instant Motion. reward points across program boundaries. /d. 15-16. ?
Point Conversions asserted state law claims against
Rodeway a franchisee of Choice, a hotel franchisor
is Rodeway and Choice under Florida's Deceptive and
for more than 11 hotel brands, with approximately 6,400 Unfair Practices Act ("FDUTPA") and conspiracy to

properties worldwide. (ECF No. 20 ? 15-16). On April violate FDUTPA, among other claims. /d. ? 173-338.
20, 2018, Rodeway commenced this action for

declaratory judgrnent and darnages against Defendants
On October 10, 2018, the District Court disrnissed
LLC Rodeway's claims
JBSHBM, LLC ("JBSHBM") and Point Conversions, judgment
declaratory against

("Point Conversions") (collectively, "Defendants")
JBSHBM (Counts 1,2, and 3), concluding that the Court
501.991 et seq. for violations of lacked subject matter jurisdiction. (ECF No. 112 at 5-8);
pursuant to Fla. Stat. §§
the Patent Troll Prevention Act and conspiracy to violate Tropical Paradise Resorts, 2018 U.S. Dist. LEXIS
the Patent Troll Prevention Act. See (ECF No. 1). 173893, 2018 WL 4932282, at *4. The District Court
also declined to exercise jurisdiction over Rodeway's
On May 31, 2018,Rodeway filed a First Amended state law claims alleging violations of the Patent Troll

Complaint. See (ECF No. 20). The First Amended Prevention Act (Counts 4 and 5). (ECF No. 112 at 8-9);
Complaint alleged that Defendant JBSHBM is the owner Tropical Paradise Resorts, 2018 U.S. Dist. LEXIS
of 31 patents relating to loyalty reward point innovations, 173893, 2018 WL 4932282, at *4.

including United States Patent No. 9,704,174 ("the 174
and relevant to the instant IVIotion, the
patent"). Rodewayalleged concern that JBSHBIVI would Additionally,
sue it for infringement of the 174 patent. /d. 1[ 40; see District Court dismissed Point Conversions' FDUTPA
a/so Point C?nversion, LLC v.=Tropical Paradise counterclaims against Rodeway and Choice.1 (ECF No.

Resorts, LLC, 339 Supp. 3d 1350 (S.D. Fla. 2018)
F. 112 at 9-11) Tropical Paradise Resorts, 2018 U.S. Dist.
(Point Conversions' prior case removed to this District
LEXIS 1 73893, 2018 WL 4932282, at *4-5. The District

and subsequently [*4] remanded). Thus, in this action, Court wrote:

Rodeway sought a declaratory judgment of non-
The Court finds that Point Conversions' state law
infringement of the 174 patent against JBSHBM (Count
counterclaims necessitate a determination of patent
1) and a finding that the 174 patent is invalid (Count 2)
law issues. Judge [*6] Altonaga reached a similar
and unenforceable (Count 3). See genera//y (ECF No.
conclusion in remanding to state court an action
20). Rodeway also sought to recover damages against
JBSHBM for bad faith assertions of patent infringement, involving the same nucleus of facts brought by
Point Conversions against Rodeway for state law
in violation of the Patent Troll Prevention Act (Count 4),
claims:
and damages against Point Conversions for conspiracy
to violate the Patent Troll Prevention Act (Count 5). /d.

On June 8, 2018, JBSHBM filed with the Court a letter it
1
The District Court also dismissed Point Conversions'
had sent to Rodeway in which JBSHBM "convenant[ed] counterclaims for declaratory judgment (Counts 4 and 5).
not to sue Rodewayfor infringement ofthe [174 patent] (ECF No. 112 at 11-13); Tropical Paradise Resorts, 2018 U.S.
Dist. LEXIS 173893, 2018 WL 4932282, at *5.
Page 3 of 12
2021 U.S. Dist. LEXIS 84584, *6

Before [Point Conversions] can obtain relief on More specifically,Point Conversions requested that the
any of its claims, a court will necessarily have Eleventh Circuit transfer the case to the Federal Circuit
to determine whether the licensed patents from (which [*8] request the Eleventh Circuit denied) and
JBSHBM are valid. If a court concludes fileda motion for rehearing en banc (which the Eleventh
[Rodeway] did not infringe[Point Conversions'] Circuit also denied). See Point Conversions, LLC v.
licensed patents, [Rodeway] cannot have Tropical Paradise Resorts, LLC, No. 19-10553 (11 th Cir.
deprived [Point Conversions] of any intellectual 2020) (filings dated 6/8/2020, 6/16/2020, 7/16/2020,
property right [Point Conversions] asserts, 7/21/2020, and 7/29/2020).
thereby defeating all of [Rodeway's] claims.
Undeterred, Point Conversions subsequently filed a
Point Conversions, LLC v. Tropical Paradise Petition for Writ of Mandamus before the Federal Circuit
Resorts, LLC, No. 18-cv-60809 at 5 (S.D. Fla. June requesting that the Federal Circuit direct the District
13, 2018). [In the instant action], Point Conversions' Court in South Florida to vacate its order, or
FDUTPA claims [also] require a determination of alternatively, direct the Eleventh Circuit to transfer the
whether the patents at issue are valid to ascertain case to the Federal Circuit for lack of subject matter

whether the value of the products Rodeway and jurisdiction. See /n re Point Conversions, No. 20-152
Choice Hotels provided to their customers was (Fed. Cir. 2020) (Petition for Writ of Mandamus filed on
diminished by the alleged "litigation liability."10/2/2020). On November 25,2020, the Federal Circuit
Accordingly, Point Conversions' state law dismissed Point Conversions' Petition for Writ of

[FDUTPA] counterclaims are preempted. Mandamus. Point Conversions, 830 F. App'x at 320.
The Federal Circuit found that the proper course was for
(ECF No. 112 at 10); Tropica/ Paradise Resorts, 2018 Point Conversions to seek review of the Eleventh
U.S. Dist. LEXIS 1 73893, 2018 WL 4932282, at *5 Circuit's decision in the United States Suprerne Court,
(citationsomitted). which has jurisdiction to review decisions by the

Eleventh Circuit.2/d.
On November 1, 2018, Point Conversions filed a Motion
for Reconsideration of the District Court's Order [*7] On December 18, 2020, the instant Motion followed.
dismissing Point Conversions' FDUTPA counterclaims. See genera//y (ECF No. 147). In the Motion, Rodeway
See genera//y (ECF No. 116). On January 2, 2019, the and Choice seek $245,955.50 [*9] in attorneys' fees
District Court denied Point Conversions' Motion for
and $16,037.52 in costs pursuant to FDUTPA. (ECF No.
Reconsideration and found that "Point Conversions' 147 at 20, 21). Although Point Conversions objects to
FDUTPA counterclaims depend entirely on whether
the entitlement of fees and costs, it did not meaningfully
Rodeway and Choice Hotels infringed the patent at 3
challenge the amounts claimed.
issue Point Conversions' FDUTPA counterclaims
are merely a parallel way of enforcing patent rights."
(ECF No. 134 at 5); Tropica/ Paradise Resorts, LLC v. 2
Subsequently, on February 25, 2021, the Federal Circuit
JBSHBM, LLC, No. 18-CV-60912, 2019 U.S. Dist.
denied Point Conversions' Petition for Panel Rehearing and
LEXIS 32, 2019 WL 78983, at *2 (S.D. Fla. Jan. 2,
Rehearing en Banc. See (ECF No. 154).
2019).
3
For example, in a footnote reference in its 7-page Response,
On January 30, 2019, Point Conversions appealed the Point Conversions summarily objects to certain deposition
District Court's orders on the Motion to Dismiss and the costs. See (ECF No. 151 at 4 n.2). Point Conversions,
Motion for Reconsideration to the Eleventh Circuit. (ECF however, fails to challenge any other costs. Moreover, Point
No. 135). On May 26, 2020, the Eleventh Circuit Conversions' reference to a previously filed motion to tax

affirmed per curiam the District Court's dismissal of the costs, which the District Court denied without prejudice to
refile,is insufficient to preserve its objection to the costs at
claims. See generally Tropical Paradise Resorts, 806 F.
issue in the current Motion. (ECF No. 151 at 4); see a/so (ECF
App'x at 966. In relevant part, the Eleventh Circuit found
Nos. 117, 124, 139, 140). Lastly, although in a subsequent
that the District Court's conclusion was "well-reasoned"
Motion for Oral Argument, Point Conversions argued that it
in that "Point Conversions' claims arising under
would "like the opportunity to question counsel for
[FDUTPA] are preempted by patent law." /d.
ChoicefTropical under oath to see how they can justify their
fees/costs for certain billingentries[,]"see (ECF No. 155 at 5),
Notwithstanding the Eleventh Circuit's affirmance of the the undersigned denied the request for oral argument as
District Court's dismissal of the claims and
attorneys' fees and costs in this case are determinable on the
counterclaims, Point Conversions continued to litigate. record. (ECF No. 158). Accordingly, Point Conversions
Page 4 of 12
2021 U.S. Dist. LEXIS 84584, *9

"alleged that [Point Conversions] conspired to commit
ENTITLEMENT TO ATTORNEYS' FEES AND
Il. violations of [FDUTPA]." /d. According to Point
COSTS UNDER FDUTPA Conversions, because Rodeway and Choice did not
prevail on the First Amended Complaint, they are not
entitled to FDUTPA fees and costs. /d. at 2-3. Point

A. Entitlement to Attorneys' Fees Generally Conversions further argues that the dismissal of its

counterclaims was "without prejudice" and, therefore,
Under the "American Rule," litigantsgenerally are not not an adjudication on the merits that would bar a
an award of attorneys' fees for prevailing in
entitled to 3&
subsequent suit.5/d. at n.1.
unless provided by statute or contract. Hardt v.
litigation
Re#ance Standard Life Ms. Co., 560 U.S. 242, 253, 130 "[G]iven the kaleidoscope of possible outcomes in civil

S. Ct. 2149, 176 2d 998 (2010) (citations
L. Ed. litigation involving multiple plaintiffs and
omitted); /n re Martinez, 416 F.3d 1286,1288 (llth Cir. defendants [*11] who assert and multiple claims
2005) (prevailinglitigants are generally not entitled to an counterclaims, deciding which, any, party has if

award of attorneys' fees unless provided by statute or prevailed for purposes of attorney's fees can be an
contract). Here, § 501.2105 of FDUTPA provides for the uncertain proposition." Chow v. Chak Yam Chau, 640 F.
discretionary award of reasonable attorneys' fees and App'x 834, 840 (llth Cir. 2015). Point Conversions'
costs to the prevailing party. Sodikart USA v. Geodis collective reference to Rodeway and Choice as
Wilson USA, Inc., No. 14-CV-22461, 2014 U.S. Dist. "Defendants" further muddles the issue. No one
LEXIS 169695, 2014 WL 6968073, at *3 (S.D. Fla. Dec. disputes that this federal action was commenced by
9, 2014) (citation omitted). More specifically, "[i]n any Rodeway, who asserted five claims against JBSHBM
resulting from an act
civil litigation or practice involving a and Point Conversions. See genera//y (ECF No. 20).
the prevailing party, after judgment in the trial
violation[,] None of Rodeway's claims, however, were FDUTPA
court and exhaustion of all appeals, if any, may receive claims. To be Rodeway's claims against JBSHBM
clear,

[its] reasonable attorney's fees and costs from the and Point Conversions included federal claims for
nonprevailing party." Fla. Stat. § 501.2105(1). declaratory judgment (Counts 1, 2, and 3) and state law

B. Rodeway and Choice are Prevailing Parties Under 5
point Conversions also argues that the Motion was filed
FDUTPA either too late or too early. (ECF No. 151 at 4). These
arguments, however, are belied by the record. First, the
In the Motion, Rodeway and Choice argue that they are
District Court granted the parties'joint motion for an extension
the prevailing parties because [*10] the District Court of tirne regarding Local Rule 7.3, which governs the tirning of
dismissed Point Conversions' FDUTPA counterclaims filing motions for attorneys' fees and cost. (ECF No. 146).
and related declaratory claims, which ruling was Specifically, the District Court ordered that Rodeway and
4
affirmed by the Eleventh Circuit.* (ECF No. 147 at 10- Choice any motion for FDUTPA fees within twenty-
"shall file

five days of [the Federal Circuit ruling on the Petition for Writ
11). Point Conversions, however, disputes whether
of Mandamus.]" /d. at 2 (emphasis added). The Federal Circuit
Rodeway and Choice are prevailing parties under
FDUTPA. Compare (ECF No. 147) denied Point Conversions' Petition for Writ of Mandamus on
with (ECF No. 151).
November 25, 2020. See /n re Point Conversions, 830 F.
More specifically, Point Conversions asserts that
App'x at 319. This Motion was filed 23 days later, on
Rodeway and Choice are not the prevailing party
December 2020. Therefore, the Motion is The
18, timely.
because they did not prevail on the claims asserted in
Motion is also not premature. The District Court's dismissal of
Rodeway's First Amended Complaint. (ECF No. 151 at
Point Conversions' FDUTPA counterclaims and the Eleventh
2). Relatedly, Point Conversions incorrectly argues that Circuit's affirmance and mandate became "final and
t was only involved in this action because Rodeway unreviewable upon the expiration of the 90-day deadline for
filinga certiorari petition [pursuant to] 28 U.S.C. § 2101(c)."

challenge to Rodeway's and Choice's request for fees and
Salazar v. Buono, 559 U.S. 700, 701, 130 S. Ct. 1803, 176 L.

costs is limited to whether the Counterclaim Defendants are Ed. 2d 634 mandate was
(2010). Here, the Eleventh Circuit's

prevailing parties entitled to an award under FDUTPA. issued on May 26,2020. See Tropical Paradise Resorts, 806
F. App'x at 966. Thus, the deadline to file a certiorari petition
4
Rodeway and Choice further
argue that the equitable factors expired on August 24, 2020. Point Conversions' subsequent
forawarding fees and costs under FDUTPA weigh in favor of unsuccessful Petition for Writ of Mandamus to the Federal
an award in this case. (ECF No. 147 at 11-19). That argument Circuit does not change the relevant timing. Accordingly, the
is addressed below. See infna Section C. Motion is ripe for adjudication.
Page 5 of 12
2021 U.S. Dist. LEXIS 84584, *11

claims alleging a violation of the Patent Troll Prevention Rodeway's claims and Point Conversions' counterclaims
Act (Counts 4 and 5). See genera//y (ECF No. 20); see were comparable and were all dismissed. Thus, the
a/so (ECF No. 112) (District Court Order dismissing "significant legal issues" test to determine prevailing
Rodeway's claims). It was Point Conversions who party status is also inapposite.
asserted FDUTPA counterclaims against Rodeway and
Choice, adding Choice as a party to this action for the Accordingly, the undersigned finds that Rodeway and
first time. (ECF No. 50). By invoking FDUTPA and
Choice are the prevailing parties, i.e.,they successfully

seeking redress under its remedial provisions, Point
defended against Point Conversions' FDUTPA
Conversions "exposed [itself]to both the benefits and counterclaims, which the District Court dismissed as
the possible consequences of that act's provisions." preempted by patent law. This ruling was affirmed by
Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. the Eleventh Circuit on appeal.7Am. Registry, LLC v.
3d 362, 369 (Fla. 2013). Hanaw, No. 2:13-CV-352-FTM-29CM, 2015 U.S. Dist.

LEXIS 129194, 2015 WL 5687693, at *4 (M.D. Fla.

Against this factual scenario and based on [*12] the Sept. 25, 2015) (noting that notwithstanding dismissal of
governing law, the undersigned finds that Choice is the the FDUTPA claim on the basis of preemption,
prevailing party under FDUTPA because it successfully defendants' status as prevailing for purposes of
defended against Point Conversions' FDUTPA attorneys' fees applied because invocation of FDUTPA
counterclaims. Likewise, Rodeway is also a prevailing was sufficient to trigger benefits and consequences).
party under FDUTPA. Although, Rodeway was Moreover, Point Conversions did not timely appeal the
unsuccessful against JBSHBM and Point Conversions Eleventh Circuit ruling to the United States Supreme
on its claims in the First Amended Complaint, Rodeway Court.
successfully defended against Point Conversions'
FDUTPA counterclaims. 6
C. Attorneys' Fees and Costs to Prevailing
n determining prevailing party status, courts often use Counterclai,n Defendants Under FDUTPA
the "net judgment" or "significantlegal issues test." See,
e.g.,CrossPointe, LLC v. Integrated Computing, Inc., "Under FDUTPA, [*14] the Florida Legislature has
No. 6:03-CV-558-ORL-19JGG, 2007 U.S. Dist. LEXIS declared that deceptive or unfair methods of competition
29301, 2007 WL 1 192021, at *5 (M.D. Fla. Apr. 20, and practices in trade and commerce are unlawful."
2007); Diamond Aircraft, 107 So. 3d at 368. But Diamond Aircraft, 107 So. 3d at 367. Importantly, an
neither test is particularly useful on the facts of the award of attorneys' fees to the prevailing party under
instant case. Here, because the dismissal of the claims FDUTPA is within the Court's discretion. Humane Soc.
and counterclaims did not provide a monetary award for of Broward Cnty., Inc. v. Florida Humane Soc., 951 So.
any party, use of the "net judgment" test to determine 2d 966, 971 (Fla. 4th DCA 2007). In exercising this
who is the prevailing party is unfruitful. Accordingly, the discretion, courts consider the following non-exhaustive
cases cited by Point Conversions regarding prevailing scope and history of the litigation;
factors: (i)the (ii)the
party status are unpersuasive. See, e.g., CrossPointe, an award of fees;
abilityof the opposing party to satisfy
2007 U.S. Dist. LEXIS 29301, 2007 WL 1192021, at *5 whether an award of fees against the opposing party
(iii)
(denying FDUTPA fees where litigant failed to would deter others from acting in similar circumstances;

demonstrate that itrecovered a "net judgment" where (iv) the merits of the respective positions, including the
both sides won and lost on significant issues in a highly degree of the opposing party's culpability or bad faith;
contentions case); see also Diamond Aircraft, 107 So. tv) whether the claim brought was not in subjective bad
3d at 368 (citing[*13] Heindel v. Southside Chrysler- faith but [was] frivolous, unreasonable, groundless; (vi)
P/ymouth, Mc., 476 So. 2d 266, 270
(Fla. 1 st DCA whether the defense raised a defense mainly to frustrate
1985) for the proposition that to recover attorneys' fees or stall; and (vii) whether the claim brought was to
in a FDUTPA action, party must prevail in the litigation, resolve a significantlegal question under FDUTPA law.

i.e.,recover judgment in a FDUTPA claim and recover a
net judgment in the entire case). Additionally,
7
Relatedly, Point Conversions' argument that dismissal
without prejudice was not an adjudication on the merits also
6
Even if Rodeway's prevailing party status could be the fails. (ECF No. 151 at 3). Point Conversions elected to pursue
subject of attack, Choice was undoubtedly brought into the its appeal. Therefore, the order to dismiss without prejudice is

case by Point Conversions, and the prevailing party on Point
is considered an adjudication on the merits. Jackson v. Okaloosa
Conversions' FDUTPA counterclaims. Cty., Fla., 21 F.3d 1531, 1536 n.4 (llth Cir. 1994).
Page 6 of 12
2021 U.S. Dist. LEXIS 84584, *14

Sodikart, 2014 U.S. Dist. LEXIS 169695, 2014 WL and costs is warranted where the litigation
"should have
6968073 at *3 (citingHumane Soc., 951 So. 2d at 971- been simpler, but had been drawn out and made
72). unreasonably contentious." Chow, 640 Fed. Appx. at
842-43; see also Sodikart, 2014 U.S. Dist. LEXIS
Presently, Rodeway and Choice seek $245,955.50 in
169695, 2014 WL 6968073, at *3 (noting that filingof
attorneys' fees and $16,037.52 in costs. (ECF No. 147 the case rnultipliedand cornpounded the litigationand
at 20, 21, 147-1 at 7). According to Rodeway and resulted substantial additional
in legal expenses).
Choice, the discretionary factors listed above weigh i Accordingly, this factor weighs heavily favor of an

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Di Pietro, Nina W. Track Judge’s New Case

Case No.

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Document Filed Date

September 16, 2022

Case Filing Date

December 05, 2017

County

Parties

Asin, Deborah Plaintiff
Body Details Fort Lauderdale LLC Defendant
Edison, Eric Corey Attorney for the Plaintiff
Levine, David Andrew Attorney for the Defendant
Sens, Mitchell Attorney for the Defendant
Trigoboff, Craig J, ESQ. Attorney for the Plaintiff
Douglas Marx Attorneys for Plaintiffs
Tal Shemtov Attorney
Jordan Wagner Attorneys for Defendants
Frank Florio Attorney
Jesse Diner Attorney
Robin Willner Attorney
David Altier Attorneys for Plaintiffs
Kristin Kanner Attorney
Theresa Caccippio Attorney
Glenn Waldman Attorney
Carlos Mesa Attorney
William Calnan Attorney
Gerald Wald Attorney
Christian Burden Attorney
Robert Frankel Attorney
Sean Foo Attorneys for Plaintiffs

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Party Notice: Deborah Asin Plaintiff vs. Body Details Fort Lauderdale LLC Defendant

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