Opinion
Bankruptcy No. 01-17153 SR, Adv. No. 02-0030.
February 14, 2005
OPINION
Introduction
Before the Court is the question of the fees to be awarded to Plaintiff's counsel pursuant to the Order and Opinion of August 4, 2004. The parties will recall that the August 4 ruling altered the decision of March 5 on that limited point. The August 4 ruling did not liquidate the fee award but set out the parameters for which compensation would be awarded. The parties were then instructed to meet and attempt to reach an agreement on the amount of fees and costs. They could not and so an evidentiary hearing occurred on January 27, 2005. See Transcript (T-). The matter was next taken under advisement. Scope of the Sanction
Because the underlying Complaint sought to avoid a secured interest in the Debtor's property, it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K). That subparagraph includes among core proceedings "determinations of the validity, extent, or priority of liens."
The fee sanction was entered pursuant to Federal Rule of Civil Procedure 37(b) and (d). See August 4 Opinion, p. 15-16. The operative, identical language from both subrules provides that a party who fails to obey a discovery order (Rule 37(b)) or otherwise fails to respond to a discovery request (Rule 37(d)) must " pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." F.R.C.P. 37(b)(2)(E), (d) (emphasis added). See Martin v. Brown, 63 F.3d 1252, 1263-64 (3d Cir. 1995) (explaining that, absent contempt, the only sanctions authorized are reasonable expenses resulting from the failure to allow discovery). To ensure that a fee award is reasonable, the Court has the discretion to make certain adjustments to the fee requested. See Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001). Any award, whether adjusted or not, must articulate the basis for the amount of the sanction. See 7 Moore's Federal Practice § 37.51[10] (Matthew Bender 3d ed.); see also Martin, id. (holding that failure to relate grounds for sanctions to wrongful conduct necessitated remand).
Incorporated by Bankruptcy Rule 7037.
Implicit in the analysis then is the finding of some causal connection between the violation and expense. See Cobell v. Babbitt, 188 F.R.D. 122, 127 (D.C.D.C. 1999) ("[T]he causal connection is not to be taken lightly.") A near "but for" relationship must exist between the Rule 37 violation and the activity for which fees and expenses are awarded. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1179 (D.C. Cir. 1985) (requiring fees and expenses awarded to be "incurred because of" the sanctioned violation). Accordingly, this Court decided that Plaintiff's counsel would be compensated for all work caused by Defendant's failure to produce documents. That included the following: the three motions to compel responses to discovery (April 2002, August 2003, and January 2004); her cross-motion for summary judgment and the hearing on damages assessed; the appeal and cross appeal of the summary judgment ruling; and her response to the motion for stay pending appeal. See August 4 Opinion, 23-24. The Court will expand the foregoing scope of recovery (per Martin, supra) only to include costs and fees associated with pursuing this fee award.
The January 2004 motion requested a contempt finding and sanctions. However, it operated from the same premise: EMC had still not produced the requested document.
Liquidation of the Award
Courts have held that the lodestar method of calculating reasonable attorney's fees is applicable to fees awarded under Rule 37. See e.g., Watkins Son Pet Supplies v. The Iams Company, 197 F.Supp.2d 1030, 1032-33 (S.D.Ohio 2002); CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 787 (D.Md. 2000); Envirosource, Inc. v. Horsehead Resource Dev. Co., 981 F.Supp. 876, 881 (S.D.N.Y. 1998); Trbovich v. Ritz-Carlton Hotel Co., 166 F.R.D. 30, 32 (E.D.Mo. 1996); Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 266 (S.D.N.Y. 1995); see also Kranzdorf v. Green, 1986 WL 8267 *5 n. 1 (E.D.Pa.) (noting that lodestar analysis is used in various fee award contexts, including Rule 37). The Third Circuit has defined the lodestar as "the `initial estimate of a reasonable attorney's fee . . . properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Student Public Interest Research Group v. AT T Bell Laboratories, 842 F.2d 1436, 1441 (3d Cir. 1988) quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983))). Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary. Hensley, 461 U.S. at 434, 104 S.Ct. at 1939-40. The Court will employ that analysis here.
The Fee Itemization
As the party seeking fees, Plaintiff has the burden of proof as to a reasonable award. See Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Her counsel has submitted an itemization for a total award of fees and costs of $38,861.58. See Ex. MJ-1. The Court has reproduced that itemization below. It has been amended to include — in separate columns — amounts which Defendant agrees are compensable and those which the Court will award. A final column is added (on the right-hand side) which explains how the Court concludes that a particular fee or cost was caused by the sanctionable conduct. Date Description Time EMC's Charges Relation to Which Spent/ itemization and costs Pleading/Caused by Costs awardable Failure to Produce
4-8-02 t/c Romilini re discovery 0.1 0.1 Motion to Compel #1 4-8-02 t/c Romilini re discovery 0.1 0.1 Motion to Compel #1 4-8-02 draft motion to compel 0.4 0.4 Motion to Compel #1 4-8-02 postage $0.57 $0.57 Motion to Compel #1 4-8-02 photocopying 27@.25 $6.75 $6.75 Motion to Compel #1 4-9-02 review correspondence to 0.1 0.1 Motion to Compel #1 Judge Raslavich from Heidi Spivak 5-7-02 prep for hearing on Motion 0.1 0.1 Motion to Compel #1 to Compel; 5-7-02 hearing on Motion to 1.2 1.2 Motion to Compel #1 Compel 5-9-02 draft stipulation of facts re 1.2 0.1 Motion to Compel #1 MFSJ; review Order re Motion to Compel 5-10- review Heidi Spivak 0.5 02 comments to Stipulation of Facts 5-13- review Amended Pre-Trial 0.1 02 Order 5-30- prepare and file Rule 0.6 02 26(a)(3) disclosure 5-30- photocopying 4@.25 $1.00 02 5-30- Postage $0.34 02 6-1-02 draft Joint Pre-trial 1.7 Statement 6-2-02 review Defendant's Motion 0.6 for Summary Judgment 6-4-02 review Heidi Spivak 0.1 comments re Pre-Trial Statement 6-6-02 prepare and serve 0.3 subpoena 6-7-02 revise Joint Pre-trial 0.6 Statement and send to Heidi Spivak 6-7-02 draft Motion for Summary 1.1 1.1 Cross Motion for Judgment and answer Summary Judgment defendants' Motion for Summary Judgment 6-7-02 photocopying 15 @ .25 $3.75 $3.75 Cross Motion for Summary Judgment 6-7-02 postage $.56 $0.56 Cross Motion for Summary Judgment 6-11- review comments of Heidi 0.2 02 Spivak to Pre-trial Statement 6-12- file plaintiff's Pre-trial 0.6 02 statement and serve Heidi Spivak 6-12- postage $0.56 02 6-12- photocopying 15 @ .25 $3.75 02 6-14- review Defendant's PreTrial 0.4 02 Statement and review file 6-15- review defendant's 2.7 02 memorandum of law in support of motion for summary judgment and research 6-25- review transcript and record 2.1 2.1 Cross Motion for 02 at clerk's office re Motion Summary Judgment for Summary Judgment 7-15- research re memorandum 4.2 4.2 Cross Motion for 02 of law in support of Summary Judgment plaintiff's Motion for summary judgment 7-15- library fee $10.00 $10.00 Cross Motion for 02 Summary Judgment 7-17- redraft and file 0.8 0.8 Cross Motion for 02 memorandum of law in Summary Judgment support of Motion for Summary Judgment 7-17- postage $0.75 $0.75 Cross Motion for 02 Summary Judgment 7-17- photocopying 42 @.25 $10.50 $10.50 Cross Motion for 02 Summary Judgment 7-29- prep for oral argument 1.6 1.6 Cross Motion for 02 Summary Judgment 7-30- attend hearing re oral 0.9 0.9 Cross Motion for 02 argument Summary Judgment 8-5-02 review defendant's reply to 0.2 0.2 Cross Motion for Plaintiff's Memorandum of Summary Judgment Law 10-15- review Opinion and Order 1.4 1.4 Cross Motion for 02 and review case Summary Judgment 10-16- t/c client re Opinion 0.2 0.2 Cross Motion for 02 Summary Judgment 10-23- review file, legal research 1.8 1.8 Damages per summary 02 and compute damages judgment calculation 11-15- letter to Heidi Spivak re 0.2 02 settlement 11-27- t/c to client re hearing 12-3- 0.7 0.7 Damages per Summary 02 02 Judgment 12-2- review correspondence re 0.1 0.1 Damages per Summary 02 hearing 12-3-02 Judgment 1-13- t/c to Lorraine Romilini re 0.1 0.1 Damages per Summary 03 hearing 1-14-02 [sic] Judgment 1-15- t/c client re facts and 1.0 0.5 1.0 Damages per Summary 03 damages Judgment 1-15- review damages calculation 0.3 0.3 Damages per Summary 03 Judgment 1-15- t/c to Lorraine Doyle re 0.1 0.1 Damages per Summary 03 damages Judgment 2-18- court appearance re snow 0.5 0.5 Damages per Summary 03 continuance Judgment 2-28- review fax from Lorraine 0.1 0.1 Damages per Summary 03 Doyle re payments Judgment 2-28- fax to Lorraine Doyle to 0.1 0.1 Damages per Summary 03 respond Judgment 2-28- tc Lorraine Doyle re 0.3 0.3 Damages per Summary 03 Payments Judgment 3-4-03 tc from Lorraine Doyle re 0.3 0.3 Damages per Summary payments Judgment 3-5-03 draft attorneys fees and 0.4 0.4 Damages per Summary costs update Judgment 3-5-03 prep for trial 2.5 2.5 Damages per Summary Judgment 3-5-03 photocopying 98@ .25 $24.50 $24.50 Damages per Summary Judgment 3-6-03 trial on damages 3.8 3.8 Damages per Summary Judgment 3-6-03 cabfare $12.00 $12.00 Damages per Summary Judgment 5-13- read decision 0.8 0.8 Damages per Summary 03 Judgment 5-13- t/c to clt re decision 0.2 0.2 Damages per Summary 03 Judgment 5-13- re-draft Chapter 13 Plan 0.4 0.4 Damages per Summary 03 Judgment 5-20- review corresp from Doyle 0.1 03 re Notice of Appeal 5-22- t/c from re settlement and 0.1 03 file 5-29- prep and serve Notice of 0.1 0.1 Response to Appeal 03 Cross Appeal and Cross Appeal 5-29- review EMC's Designation 0.1 0.1 Response to Appeal 03 of Issues on Appeal and Cross Appeal 5-29- tc clerk re record 0.1 0.1 Response to Appeal 03 and Cross Appeal 5-29- Review file and Opinion re 2.1 2.1 Response to Appeal 03 EMC's 18 issues on appeal and Cross Appeal 5-30- t/c from Clerk re record 0.1 0.1 Response to Appeal 03 and Cross Appeal 6-5-03 file review re designation of 1.7 1.7 Response to Appeal record. and Cross Appeal 6-6-03 rev corresp from Doyle re 0.1 0.1 Response to Appeal documents re record and Cross Appeal 6-6-03 prep designation of record 1.2 1.2 Response to Appeal and issues on Cross appeal and Cross Appeal with file review 6-27- review brief on Appeal by 1.4 1.4 Response to Appeal 03 EMC and Cross Appeal 6-27- review Appendix and 2.6 2.6 Response to Appeal 03 compare with original and Cross Appeal complete Filings 7-1-03 legal research re EMC's 2.4 2.4 Response to Appeal brief and cross appeal and Cross Appeal 7-1-03 Library fee $10.00 $10.00 Response to Appeal and Cross Appeal 7-1-03 Photocopying fee $4.25 $4.25 Response to Appeal and Cross Appeal 7-7-03 review Appendix/record 7.2 7.2 Response to Appeal and draft brief and Cross Appeal 7-8-03 draft brief appeal and cross 8.7 8.7 Response to Appeal appeal and Cross Appeal 7-9-03 finalize brief and Appendix 9.6 9.6 Response to Appeal and Cross Appeal 7-10- serve brief and Appendix 0.4 0.4 Response to Appeal 03 and Cross Appeal 7-10- Photo and binding $72.37 $72.37 Response to Appeal 03 and Cross Appeal 7-10- Postage $3.95 $3.95 Response to Appeal 03 and Cross Appeal 7-10- review reply brief of EMC 0.8 0.8 Response to Appeal 03 and Cross Appeal 7-10- Research and draft reply to 6.8 1.7 Response to Appeal 03 EMC's brief and Cross Appeal 7-10- Postage $2.95 $2.95 Response to Appeal 03 and Cross Appeal 7-10- Photocopying 45 @ .25 $11.25 $11.25 Response to Appeal 03 and Cross Appeal 7-14- Review Motion for Stay and 0.9 0.9 Motion for Stay 03 Answer Pending Appeal 7-16- library re legal research re 2.6 1.0 Motion for Stay 03 standard for stay Pending Appeal 7-17- file and serve answer to 0.4 0.3 Motion for Stay 03 motion for stay Pending Appeal 7-17- Postage $2.95 $2.95 Motion for Stay 03 Pending Appeal 7-17- Photocopying 87@.25 $21.75 $21.75 Motion for Stay 03 Pending Appeal 8-5-03 hearing on Motion for stay 1.8 1.8 Motion for Stay Pending Appeal 8-6-03 review Motion for relief from 0.3 Judgment 8-6-03 Review file re discovery 0.3 8-18- library re legal research re 4.1 03 Motion for Relief 8-18- library re legal research re 1.1 1.1 Motion to Compel #2 03 motion for sanctions 8-19- draft Answer to Motion for 0.3 03 Relief from Judgment 8-19- draft Motion for Sanctions 0.9 0.9 Motion to Compel #2 03 with file review 8-20- draft memorandum of law 2.8 03 in response to Motion for Relief 8-20- draft memorandum of law 0.9 0.9 Motion to Compel #2 03 re sanctions 8-21- file and serve answer and 0.7 .30 0.30 Motion to Compel #2 03 cross motion for sanctions 8-21- Postage $2.95 $2.95 Motion to Compel #2 03 8-29- review reply to cross 2.2 2.2 Motion to Compel #2 03 motion for sanctions and research 9-2-03 library research re 2.1 supplemental mem of law 9-2-03 draft memorandum of law 0.9 9-2-03 t/c from Doyle re hrg on 9- 0.2 0.2 Motion to Compel #2 4-03 9-3-03 file and serve supplemental 0.6 memorandum of law 9-3-03 postage $0.57 9-3-03 Photocopying 9 @.25 $2.25 9-3-03 t/c from Winig re hrg on 9- 0.5 0.5 Motion to Compel #2 4-03 9-4-03 hearing on Motion for Relief 1.5 1.5 Motion to Compel #2 from Judgment and sanctions 9-9-03 review corres from Doyle re 0.1 subpoenas of EMC employees 9-25- t/c to Doyle re status of 0.2 0.2 Motion to Compel #2 03 discovery 10-14- review corresp from Doyle 0.1 03 10-16- meet with Doyle re 3.5 3.5 Motion to Compel #2 03 microfiche in NJ 10-16- Toll $3.00 $3.00 Motion to Compel #2 03 10-16- Mileage 37@.33 $12.21 $12.21 Motion to Compel #2 03 10-16- Photocopying at library $1.50 $1.50 Motion to Compel #2 03 10-23- meet with Doyle re 2.2 2.2 Motion to Compel #2 03 microfiche review in PA 10-23- Photocopying at library $2.50 $2.50 Motion to Compel #2 03 10-29- prep for hearing on October 3.4 1.7 3.4 Motion to Compel #2 03 30, 2003 10-29- Photocopying 528@.25 $132 $132 Motion to Compel #2 03 10-30- hearing on Motion for relief 4.2 2.1 4.2 Motion to Compel #2 03 from judgment and cross motion for sanctions 10-30- Cabfare 2@$5 $10. $10.00 Motion to Compel #2 03 11-25- review transcript 10-30-03 2.4 2.4 Motion to Compel #2 03 hearing 11-25- Pacer charge $6.09 $6.09 Motion to Compel #2 03 12-1- send letter to Doyle re 0.1 0.1 Motion to Compel #2 03 compliance 12-1- Postage $0.37 $0.37 Motion to Compel #2 03 12-1- Photocopying .25 $0.25 Motion to Compel #2 03 12-4- review letter from Doyle re 0.1 0.1 Motion to Compel #2 03 compliance with Order 12-22- review corresp from Doyle 0.1 03 re foreclosure fees 1-5-04 t/c to Doyle re settlement 0.3 0.3 Motion to Compel #2 and document production 1-5-04 file review and draft letter to 1.1 Doyle re settlement 1-8-04 t/c to Doyle re settlement 0.2 0.2 Motion to Compel #2 and document production 1-13- docket review and motion 1.3 1.3 Motion to Compel #3 04 for sanctions and contempt 1-13- Postage $0.60 $0.60 Motion to Compel #3 04 1-13- Photocoying [sic] 18 @ .25 $4.50 $4.50 Motion to Compel #3 04 1-13- docket costs 12 @ .07 .84 $0.84 Motion to Compel #3 04 2-9-04 review reply to Motion for 1.3 1.3 Motion to Compel #3 sanctions, file review, and pre for hearing 2-10- hearing on motion for 1.8 1.8 Motion to Compel #3 04 sanctions 2-10- Docket 10 @ .07 .70 $0.70 Motion to Compel #3 04 2-13- t/c from Doyle re found 0.4 0.40 Motion to Compel #3 04 paper file 2-18- letter fax from Doyle re 0.1 0.1 Motion to Compel #3 04 paper file 2-18- t/c from Doyle re file 0.1 0.1 Motion to Compel #3 04 2-19- letter fax from doyle re 0.1 0.1 Motion to Compel #3 04 paper file 2-20- t/c to Doyle re online and 0.1 0.1 Motion to Compel #3 04 appt to review paper file 2-20- t/c clt re appt to review file 0.1 0.1 Motion to Compel #3 04 2-20- letter to Doyle re online file 0.1 0.1 Motion to Compel #3 04 and review original paper file 3-8-04 review Order and decision 0.2 0.2 Motion to Compel #3 re Motion for sanctions and for contempt 3-8-04 Review transcript of 10-30- 3.5 03 hearing re 3-5-04 Order 3-8-04 review Rules of Procedure 0.1 0.1 Motion to Compel #3 re 3-5-04 Order 3-8-04 review file re 3-5-04 Order 1.8 1.8 Motion to Compel #3 3-9-04 Review transcript of 2-10- 0.1 0.1 Motion to Compel #3 04 hearing 3-9-04 Pacer 7 @ .07 .49 $0.49 Motion to Compel #3 3-10- file review and prep fee 3.2 3.2 Motion to Compel #3 3-10- draft certificate of fees 1.2 1.2 Motion to Compel #3 04 3-10- fax re Doyle re fees 0.1 0.1 Motion to Compel #3 04 3-10- t/c to Doyle re fax re fees 0.1 0.1 Motion to Compel #3 04 3-16- t/c to Doyle re setting 0.1 0.1 Motion to Compel #3 04 Conference with court 3-17- review from Doyle reply to 0.2 0.2 Motion to Compel #3 04 sanctions demand 3-17- t/c to chambers re joint 0.1 0.1 Motion to Compel #3 04 conference re 3-5-04 Order 3-17- t/c from chambers re hrg 0.1 0.1 Motion to Compel #3 04 set for 3-23-04 re sanctions trial 3-17- t/c to Doyle re sanctions 0.1 0.1 Motion to Compel #3 04 hearing 3-17- t/c to Doyle re sanctions 0.2 0.2 Motion to Compel #3 04 position 3-23- hearing on sanctions 1.4 1.4 Motion to Compel #3 04 amount 8-9-04 review Opinion dated 8-4- 0.3 0.3 Motion to Compel #3 04 re sanctions 8-9-04 file review re Opinion on 0.6 0.6 Motion to Compel #3 sanctions 8-10- fee certification 3.7 3.7 Motion to Compel #3 04 Which Charges Relate to the Fee Sanction?In reviewing Plaintiff's Counsel's fee request, the Court observes that, for the most part, it is congruous with the parameters for compensable work as stated in the August 4 Opinion. The extent that a fee is compensable is in the fifth column; an explanation why is found in the sixth. Fees not compensable are blank in the three columns to the right. Those fees are related to the Joint PreTrial Statement and Amended Pre Trial Order (5-9-02 (1st entry), 5-10-02, 5-13-02, 5-30-02, 6-1-02, 6-4-02, 6-7-02, 6-11-02, 6-12-02, 6-14-02), EMC's motion for summary judgment (6-2-02, 6-15-02), and its motion relief from summary judgment (8-6-03, 8-18-03, 8-19-03, 8-20-03, 9-2-03 (first 2 entries), and 9-3-03 (first 3 entries)). Charges for what are described as settlement discussions will likewise not be recovered. See 11-15-02, 5-22-03, and 1-5-04. Other entries will be disallowed because they are so vaguely described as to make it impossible for the Court to determine how they relate to the sanction. See 6-6-02, 5-20-03, 6-6-03, 8-6-03 (2d entry), 9-9-03, 10-14-03, and 12-22-03. EMC, however, maintains that other deductions are warranted.
EMC's Opposition to Certain Charges
Defendant has both specific and general objections to counsel's itemization. It maintains that some charges are outside the scope of the fees recoverable, others were given too much time, the same work was billed twice, and still others bill clerical work at a professional rate. On a general level, it is implied that the credibility of Plaintiff's Counsel is undermined by previous fee submissions. As the party seeking adjustment to the fees requested, EMC has the burden of proving that it is necessary. Lanni, supra, 259 F.3d at 149.
Was Excessive Time Devoted to the Fee Statement?
EMC first challenges the amount of time devoted to preparing the fee statement. T-11. To EMC, 8.5 hours for such a task is simply excessive. T-25. Counsel's response was that by this time, the file in this case had become voluminous. T-11 Implicitly, she maintains that a lengthy file review was required.
The Court recalls that the August 4 Opinion expanded the scope of the fee sanction. This necessitated a thorough review of the file to determine which additional fees are compensable. Because this was not an award of all fees and costs incurred, discernment was required here. Counsel was required to eliminate those charges outside the scope of the sanction. On this record, the Court cannot say that 8.5 hours was too much time for the fee itemization.
Does the Itemization Include Other Unrelated Work?
At the hearing, EMC asked Plaintiff's counsel why she included 5.9 hours for reviewing a transcript. T-14,15. Counsel maintains that the transcript review "was part of the discovery process in this matter on both occasions." T-15. That, she continues, was related to Plaintiff's opposition of the Rule 60(b) motion. Id. While Counsel has misread the Court's ruling with regard to recoverable costs related to EMC's Motion for Relief from the Summary Judgment — that motion was granted — her Motion to Compel filed in response was also granted. And her Motion for Sanctions was taken under advisement pending outcome of the trial. See 11/20/03 Order and Opinion. Her first review of the transcript would occur five days later. She reviewed her file to see if EMC had complied with the directive to produce documents related to the HOEPA notice. T-16. And as the record reflects, EMC had not, as of that time, yet fully complied. That would result in a third motion to compel. On that basis the Court concludes that Counsel's review of the 10-30-03 transcript on 11-25-03 relates to the fee sanction.
This figure is the total of the two entries dated 11-25-03 and 3-8-04 on which dates Counsel reviewed the transcript of the hearing dated 10-30-04.
But the same cannot be said for review of the transcript on 3-8-04. That occurred 3 days after the March 5 Opinion which ruled on Plaintiff's third discovery motion (Motion to Compel #3). Plaintiff sought reconsideration of that Opinion and, as it turned out, it was altered in her favor. But nothing in that transcript caused the Court to reconsider the ruling. Rather, it was the Court's reassessment of all of the consequences ensuing from EMC's failure to produce documents in its possession for almost two years that provided the rationale. For that reason, the charge on 3-8-04 for transcript review will not be recoverable.
Charges Related to the Appeal and Cross-Appeal
EMC's next line of questioning went to those fees charged in relation to the appeal of the summary judgment ruling. T-17,18. EMC maintains that compensation is limited solely to Plaintiff's Cross Appeal and nothing else. The cross appeal does not, in EMC's estimation, warrant the amount of time charged. T-25; Ex. R-5.
In analyzing EMC's argument, the Court now sees that it misidentified the work compensable. The Court meant to include the work associated with the Response to Appeal as well as the Cross Appeal. And the text of the Opinion demonstrates this. It states that " [a]ll of the issues in Plaintiff's Cross Appeal from the Summary Judgment Order were predicted on a HOEPA violation." August 4 Opinion, p. 22. Although the Cross Appeal raised but one issue, it was Plaintiff's Counter Statement of Issues on Appeal that raised four issues three of which were premised on HOEPA. That explains why Plaintiff's Appeal Brief consists of 38 pages most of which relates to the HOEPA violation. EMC's characterization of the germane part of the appeal as consisting of no more than two pages ( see T-25) is simply inaccurate. Plaintiff's Counsel shall be compensated for all fees and costs associated with her Response to the Appeal and her Cross Appeal. The sole exception is for the fifth entry dated 7-10-03. It involves her draft and response to EMC's reply brief. Her argument consists of 10 pages only one of which relates to the HOEPA claim. Accordingly, that charge will be allowed to the extent of 25%.
Charges Related to the Motion for Stay
EMC asserts that it is being asked to pay twice for the same legal research. It maintains that the research which supported the opposition to the stay pending appeal is entirely extracted from the brief on the cross appeal. T-26. The Court's review of Plaintiff's Response confirms this. The Summary of Argument attached to the Response recites verbatim what is in the appeal brief. See Docket #59. And it does not help counsel in this regard that she described the work in her fee itemization as "research re: standard for stay." See MJ-1, entry dated 7-16-03. Nothing in her Response cites the law on granting a stay pending appeal. Compare this to what is alleged in EMC's corresponding motion. See Docket #56. So while the Court would not characterize counsel's conduct as double-charging, it would consider the research to be largely unearned: Plaintiff's argument does not reflect any research of the type described in the itemization. She will be allowed no more than 1 hour compensable for research relating to the opposition of the stay motion.
Did Counsel Bill For Clerical Tasks?
Defendant maintains that counsel billed her full professional rate for what are clerical tasks. T-16,17. Counsel replies that she does not charge whatsoever for any clerical functions. Id. As to whether clerical work was billed at a lawyer's rate, there appear only two entries guilty of that. The 7-17-03 charge of 0.4 hours for filing and service of the answer to motion for stay and the 8-21-03 charge of 0.70 hours for filing and serving the cross motion for sanctions will be reduced to 0.30 apiece. See In re Busy Beaver, 19 F.3d 833, 855 (3d Cir. 1994) ("When an experienced attorney does clerk's work, he or she should be paid clerk's wages").
The Existence of Earlier Fee Itemizations
EMC's last line of questioning sought to impeach the credibility of Plaintiff's counsel generally. EMC asked counsel to identify the two prior fee itemizations marked as Exhibits R-1 and R-2. T-19, 20. The first exhibit was the itemization of all fees submitted by counsel after summary judgment including fees was entered in her client's favor. See R-1. That occurred in March 2003. The second exhibit consisted of fees related to the sanctions award of March 5, 2004. See R-2. EMC would ask counsel why certain fees on R-2 were not on R-1. T-20. Is not R-2, the argument implies, merely a subset of R-1?
For example, the 4-8-02 charge for a telephone call to Heidi Spivak appears on R-2, but not on R-1.
Counsel's answer to that question is no. T-20,21. She recalls, for example, that the Court denied her Motion to Compel #1 (April 2002). T-21. Therefore, she did not ask for those fees at the damages hearing. Id. The Court finds this to be a credible explanation. But more to the point, EMC never explains what all this has to do with the itemization that is before the Court: Exhibit MJ-1. The mere fact that prior fee itemizations are not completely consistent inter se or with the present one is of little probative value here.
In summary, after all deductions, the Court finds that 115.6 hours of work from the itemization warrant compensation. The Court now turns to Counsel's hourly rate.
The Hourly Rate
After determining the number of hours reasonably expended, the Court must examine whether the requested hourly rate is reasonable. Generally, a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Smith v. PHA, 107 F.3d 223, 225 (3d Cir. 1997). Thus, the court should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Student Public Interest Research Group of New Jersey v. ATT Bell Laboratories, 842 F.2d 1436, 1447 (3d Cir. 1988).
Debtor is charging $250/hour. She maintains that such is the prevailing rate in this locale for practitioners with her level of experience. T-6; Ex. MJ-1. The Defendant does not contest this. On that basis then the Court finds the hourly rate charged to be appropriate. Multiplying that rate by the number of hours allowed yields a total fee award of $28,900.
Costs Incurred
Plaintiff's counsel requests reimbursement of $436.58 in costs. These costs will be included in the fee award if, like the time spent, the particular cost relates to compensable work. The Court, therefore, will disallow the costs dated 5-30-02, 6-12-02, 7-10-02, and 9-3-03. That yields total reimbursable costs of $401.60.
Summary
For the reasons set forth above, Plaintiff's Counsel shall be awarded $29,301.60 in fees and costs. An appropriate order follows.
ORDER
AND NOW upon consideration of the evidence offered at the hearing on the amount of fees and costs awardable to Plaintiff's Counsel pursuant to the Opinion and Order of August 4, 2004, and for the reasons stated in the attached Opinion, it is hereby
ORDERED that EMC shall pay Plaintiff's counsel fees and costs in the amount of $29,301.60 within ten (10) of the date of this Order.