Morcher v. Nash , 32 F. Supp. 2d 239 ( 1998 )

32 F.Supp.2d 239 (1998)

Heidi MORCHER, Plaintiff,
v.
Merry NASH, in personam, and the oil screw Bismarck, in rem, Defendants.

No. Civ.1997-124.

District Court, Virgin Islands, D. St. Thomas.

December 1, 1998.

Frederick G. Watts, St. Thomas, U.S.V.I., for the plaintiff.

Gregory H. Hodges, St. Thomas, U.S.V.I., for the defendants.

MEMORANDUM

MOORE, Chief Judge.

Presently before the Court is defendant Merry Nash's ["Nash"] application for attorney's fees and costs incurred in her defense of this action. After reviewing the parties' submissions, the Court concludes that plaintiff Heidi Morcher ["Morcher"] must compensate the defendant in the amount of $43,074.26 for the reasons set forth below.

FACTUAL SUMMARY

On July 15, 1997, Morcher invoked the Court's admiralty jurisdiction and filed suit against Nash in personam and the vessel "Bismarck" in rem, seeking arrest and possession of the craft as well as damages for conversion. (See Verified Compl. at 4-5.) The United States Marshal seized the Bismarck under an arrest warrant issued by the magistrate judge and placed the vessel with a substitute custodian. Nash then counterclaimed against Morcher in diversity for possession of the craft, among other claims. This Court conducted a hearing in this case on October 8, 1997, and decided that the vessel would be remanded to Nash's custody. At that time, the Court observed that Nash appeared to own title to the craft.

This matter was tried to the Court without a jury in February, 1998. At the conclusion of the trial, the Court adjudged Nash to be the sole owner of the Bismarck, and invited the parties to submit briefs regarding Nash's entitlement to an award of fees and costs as the prevailing party. In its Memorandum Opinion of September 21, 1998, the Court concluded that an award of reasonable legal fees and costs was appropriate in this case.

DISCUSSION

Under the Virgin Islands Code, the Court may award costs and attorney's fees to the prevailing party. See V.I.CODE tit. 5, § 541. As the Court has already ruled that Nash is entitled to an award under that section, only "the amount which should in justice and reason be awarded" remains to be determined. See Morcher v. Nash, 26 F.Supp.2d 758 (D.V.I.1998). In her supplemental application, Nash seeks $47,856.25 in fees and $286.53 in costs. The Court will review each request separately.

I. Attorney's Fees

Nash asks for a fee award of $47,856.25, reflecting two hundred and forty-five hours of work expended by four attorneys and one paralegal.^[1] Morcher correctly notes that the Court has rarely made a full award of attorneys fees in the past. (See Opp'n at 3.) Nonetheless, there is no "partial reimbursement standard" implicit in section 541, as the plaintiff suggests. The amount of an award rests within the sound discretion of the Court. See Jo-Ann's Launder Ctr., Inc. v. Chase Manhattan Bank, 31 V.I. 226, 1995 WL 78299 (D.V.I.1995); Bedford v. Pueblo Supermarkets of St. Thomas, Inc., 18 V.I. 275 (D.V.I.1981). But cf. Lucerne Inv. Co. v. Estate Belvedere, Inc., 411 F.2d 1205 (3d Cir.1969) (stating in dicta that section 541 was "intended to [indemnify] the prevailing party for a fair and reasonable portion of his attorney's fees incurred ... and not for the whole amount"). The Court of Appeals has held that a proposed award even may be increased to reflect the contingent nature of the litigant's recovery or the quality of the attorney's work. See Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973).

Morcher first contends that the requested award must be reduced because "[t]he case law is clear that a client may use multiple lawyers[,] but ... such use will be reflected in a reduction of a section 541 award." (See Opp'n at 6.) Although plaintiff somewhat overstates the rule, this Court has previously reduced fee awards for duplication of effort among several attorneys. See Jo-Ann's Launder Ctr., Inc., 31 V.I. at 235, 1995 WL 78299 (discounting initial valuation for double billing). The Court finds that 10.75 hours of recorded work reflect partial duplication of effort.^[2] Those billings, which totaled $1,957.50, will be reduced by twenty-five percent to $1,468.13.

Morcher next argues that the requested award must be reduced by $3,188.75 because client meetings and conferences between multiple lawyers are not compensable under the Third Circuit Court of Appeals' statement in Dr. Bernard Heller Foundation that "[a]n award for such expenses would [be] unauthorized as a matter of law because these expenses are unrelated to any reimbursable costs listed in section 541(a)." (See Opp'n at 7-10 (citing Dr. Bernard Heller Foundation v. Lee, 847 F.2d 83, 89 (3d Cir. 1988)).) This declaration proves little, however, because it applies to an award of costs under section 541(a). Attorneys generally charge meetings with clients and other counsel as part of their fees, not as costs. Client meetings are certainly compensable under section 541(b) because attorneys draw upon their legal expertise in advising their clients and charge them accordingly. Single-lawyer conferences with opposing counsel are compensable for the same reason. Multiple-lawyer conferences not involving opposing counsel, on the other hand, involve duplicative work. Prudence requires the Court to agree that prevailing parties are not entitled to recover fees for such conferences under section 541(b).

Applying these conclusions, the Court finds that 28.50 hours of billings submitted by Nash's attorneys include non-compensable co-counsel conferences mixed with other legal work.^[3] Since her attorneys failed to itemize these conferences separately from $5,327.50 in billings,^[4] the Court will reduce billings for these hours by twenty-five percent to $3,995.63.

Morcher finally claims that the Court must exclude 73.25 hours of billings from its award calculation because certain entries are vague and "do not indicate the purpose for which the attorneys engaged in such activity." See Good Timez v. Phoenix Fire & Marine Ins. Co., 754 F.Supp. 459, 463 n. 6 (D.Vi.1991) (criticizing overly general itemization that contained "many entries in which two or more different kinds of legal work were lumped together"). The Court finds that 5.50 hours of entries are so vague as to prevent meaningful judicial review.^[5] The fee award will not include these billings, which total $985.50. In addition, $5,156.00 in billings appear in six general entries.^[6] Since these undifferentiated entries hinder the Court in determining whether the time spent on each of the listed activities was reasonable, the billings will be reduced by fifty percent to $2,578.00.

"In determining the ``lodestar,' or initial valuation of an attorney's services, we are instructed to consider the number of hours spent on the case and the reasonable hourly rate." Jo-Ann's Launder Ctr., Inc., 31 V.I. at 234, 1995 WL 78299 (citation omitted). Nash's attorneys devoted an appropriate amount of time to this matter, and Morcher does not dispute their hourly rates. The lodestar amount adequately compensates Nash's attorneys for adeptly vindicating her rights. Although this case involved the complex intersection of commercial and maritime law, the Court noted over a year ago that Nash was probably entitled to possession of the Bismarck. The lodestar will not be adjusted upward as the defendant requests. After subtracting the previously excluded billings, the Court concludes that the total award of reasonable attorney's fees to the prevailing party shall be $42,937.76.^[7]

II. Costs

Nash wishes to recoup $286.53 out of $1,068.28 in costs incurred during the successful defense of this action. The Court finds that she is entitled to $136.50 for court reporter fees and witness fees. See 5 V.I.C. § 541(a)(1). General photocopy, facsimile, and telephone charges are not compensable under section 541. See Wenner v. Government of the Virgin Islands, 29 V.I. 158, 163, 1993 WL 661182 (D.V.I.1993) (citations omitted); cf. 5 V.I.C. § 541(a)(5) (authorizing recompense for "necessary expense of copying any public record, book, or document used as evidence"). Likewise, Morcher need not indemnify Nash for general mail charges unrelated to "publication of the summons or notices." See id. § 541(a)(3). The only remaining itemized costs relate to computerized legal research, which the Virgin Islands fee statute does not address. "[W]hile the express language of Section 541(a) does not necessarily preclude the court from assessing costs other than those specifically enumerated, the court's discretion in taxing such costs is to be sparingly exercised." Good Timez Inc., 754 F.Supp. at 461 (citing Kriegel v. St. Thomas Beach Resorts, 18 V.I. 365 (D.V.I. 1981), aff'd mem., 676 F.2d 686 (3d Cir. 1982)). The Court has previously declared that charges related to overhead expenses are not compensable as costs under section 541(a). See Wenner, 29 V.I. at 163, 1993 WL 661182. Since computerized legal research differs from traditional research only in the mode of retrieval, and attorneys routinely purchase research materials as part of overhead, the Court will not treat computer research charges as compensable costs under section 541(a). See Jo-Ann's Launder Ctr., 31 V.I. at 236, 1995 WL 78299. The Court will award $136.50 in costs in addition to $42,937.76 in attorney's fees to the defendant. An appropriate Order will issue.

NOTES

[1] Her attorneys summarized the time spent as follows:

Attorney                    Hours and Rate              Amount
Gregory H. Hodges          187.75 hrs. @ $210.00/hr   $39,427.50
Richard Bourne-Vanneck       1.00 hrs. @ $210.00/hr   $   210.00
Riel J. Faulkner            32.75 hrs. @ $155.00/hr   $ 5,076.25
Salim M. Ladah              22.75 hrs. @ $135.00/hr   $ 3,071.25
Paralegal
Valynne Cuchara              0.75 hrs. @ $95.00/hr    $    71.25

(See Affirmation of Gregory H. Hodges at 2.) The Court will exclude paralegal fees from Nash's award because no authority has been advanced for their inclusion.

[2] The billings, which involved repetitious research, appeared as follows:

Hodges       02/11/98     6.25      Conference with F. Watts re pretrial order; conference re same; revise
trial brief; review Watts brief.
Ladah        02/11/98     2.25      Research joint tenancy in personalty on an oral agreement on Lexis and
at District Court; begin researching local statutes for joint tenancy
issues; read plaintiff's trial brief.
Hodges       03/13/98     0.50      Review Morcher post-trial brief re attorney's fees; staff conference re
response.
Ladah        03/14/98     1.75      Read opposition to brief entitling Nash to attorneys' fees; pull and read
cases cited by Morcher; research the uniformity of a rule against award
of attorneys' fees in admiralty cases.

(See Opp'n at 7 (emphasis added.)

[3] The entries identified by the Court appeared as follows:

Hodges     09/04/97    2.50    Continued research re Rule E(4) hearing; telephone conference with M.
Nash re same; telephone conference with officer re mooring permits and
affidavit re same; staff conference re ancillary administration of local
property.
Hodges     09/05/97    4.50    Conference with Inga re affidavit; prepare reply to response re adversary
hearing; staff conference re probate proceedings.
Faulkner   01/23/98    0.75    Staff conference to discuss case; review complaint.
Hodges     01/28/98    0.50    Conference with M. Nash re status and German lawyers; staff conference
re estate taxes.
Faulkner   02/10/98    8.00    Complete research on conflict of law issues; draft bench brief; staff
conference to discuss issues.
Faulkner   02/12/98    2.50    Review plaintiff's trial brief; staff conference re issues in trial brief;
review cases re domicile.
Hodges     02/23/98    4.50    Prepare final argument; attend same and court[']s rendering of decision;
staff conference re application for attorneys fees; conference re preparation
of findings of fact and conclusions of law.
Hodges     02/23/98    2.75    Staff conference re award of fees; prepare findings of fact for court.
Ladah      02/23/98    3.50    Staff conference regarding decision in Third Circuit and distinguishing
same; draft motion for collection of costs and fees in diversity.
Hodges     03/16/98    0.25    Staff conference re research re attorney[']s fee issue; conference with
judge's law clerk re same.

(See Opp'n at 7-10 (emphasis added).)

[4] The following conferences were itemized separately:

B.-Vanneck      09/05/97    0.75    Staff conference re requirement for U.S.V.I. probate or ancillary probate
for interest in vessel of intestate decedent re legal title requirement for
relief under admiralty law provisions; engaged re analysis of issues for
same.
B.-Vanneck      01/28/98    0.25    Staff conference re estate tax liability of German national/U.S.V.I. domiciliary
re litigation.
Hodges          02/25/98    0.25    Staff conference re fee application.

(See Opp'n at 9, 10.) These billings are not included in the 28.50 hour figure discussed above, and will be excluded from Nash's award as non-compensable co-counsel meetings.

[5] The impermissibly vague entries appeared as follows:

Hodges     09/19/97    0.25    Telephone conference with S. Rogers and J. Kling re status.
Hodges     11/21/97    0.25    Finalize supplemental responses to discovery.
Faulkner   02/16/98    3.00    Complete research; compose memorandum.
Faulkner   02/17/98    2.00    Complete memorandum.

(See Opp'n at 5-6.)

[6] These six entries appeared as follows:

Hodges     01/09/98     5.00     Prepare response to second motion to compel; review transcript of
October 8, 1997 hearing; attend hearing on motion to compel; conference
with M. Nash re same; conference with B. Morrisette re trial.
Hodges     01/22/98     2.75     Conference with Morrisette re trial testimony; review motion to compel
and re Bauer; conference with Nash, Watts. Cohen and Christopher re
depositions; prepare notices and subpoenas.
Hodges     01/23/98     5.50     Conference with Christopher re subpoena; conference with M. Nash re
status and course of action; conference with F. Watts re Morcher
depositions; prepare opposition to motion to compel.
Hodges     02/04/98     3.50     Prepare outline for Roberts; conference with Christopher re registrations;
conference with Roberto re testimony; review supplemental production;
conference with M. Nash re same.
Faulkner   02/05/98     2.50     Review file; research conflict issue.
Hodges     02/15/98     6.00     Prepare direct outline for M. Nash; research re INS laws.

(See Opp'n at 5-6.)

[7] This figure includes $800.00 in attorney's fees charged by attorney Chad C. Messier in preparing the defendant's Supplemental Application and Reply at the rate of $160.00 per hour. See Pawlak v. Greenawalt, 713 F.2d 972, 983-84 (3d Cir.1983) (noting that reasonable fees incurred in fee award dispute are recoverable). Although the defendant's pleadings reportedly took eight hours to prepare, the Court will include only five hours' billings in its award because the suggested total appears excessive.