Opinion
Case No. 2:00CV671DAK
March 31, 2004
ORDER
This matter is before the court on Defendant Fremont Investment Loan's ("Fremont") Motion for Attorneys' Fees and Related Non-taxable Expenses and Fremont's Bill of Costs. Although Fremont's motion was filed on February 20, 2004, Plaintiff has not responded to Fremont's motions. The court concludes that oral argument would not substantially aid in its determination of the motions. Having carefully considered the memoranda and other materials submitted by the parties, the law and facts relating to Defendant's motion, the court enters the following order.
I. Motion for Attorneys Fees and Related Non-taxable Expenses
Fremont seeks $44,753.79 in attorneys' fees and related non-taxable expense pursuant to Rule 54(d)(2)(A) of the Federal Rules of Civil Procedure, DUCivR 54-(f), the parties' $176, 150
Adjustable Rate Note paragraph 7(E), and paragraph 21 of the Deed of Trust. Fremont was granted summary judgment on all six causes of action
Attorney fees awarded pursuant to a contract should not be given scrutiny to the same degree as fees awarded in a statutory context, but should be awarded consistent with the contractual purpose of giving the parties the benefit of their bargain. See United States ex rel. C.J.C., Inc. v. Western States Mech. Contractors, Inc., 834 F.2d 1533, 1548 (10th Cir. 1987). "Where attorney's fees are provided by contract, a trial court does not possess the same degree of equitable discretion to deny such fees as it has when applying a statute providing for a discretionary award." Id. However, a court "may nevertheless, reduce the contractual attorney's fees claimed if it finds such an award `would be inequitable and unreasonable."' Id. (quoting General Elec. Credit Corp. v. Oil Screw Triton, VI, 712 F.2d 991, 995 (5th Cir. 1983) (quoting in part Cable Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344, 1345 (5th Cir. Unit B 1980)).
"In considering whether a fee is unreasonable or excessive," a trial court may consider "the familiar factors from the federal cases awarding fees in a statutory context," Id. `The district court may choose to use these factors, not to compute a reasonable fee, but to assist in determining if the fees claimed are unreasonable or inequitable. In addition, it remains important for the district court to provide a "concise but clear explanation' of its reasons for any adjustments to the fee award." Id.
In this case, the court believes it necessary to reduce the requested fees only to the extent that the fees appear to be related to Fremont's motion to compel, for which fees could have been sought at the time of the motion, for fees related to correspondence with the court regarding the status of the case and entry of judgment, fees for review of Premier's motion for summary judgment which merely joined in Fremont's motion and did not involve Fremont, and for fees that appear excessive for tasks incidental to preparing this request for fees. The court, therefore, is reducing the hours of Paul Veasy by 19.5 hours, Laura Scott by 4.0 hours, Jeffrey Fillmore by 1.3 hours, and Tamara Green by 4.75 hours, which hour reduction results in a reduction of fees in the amount of $6, 247.50. The court finds the requested non-taxable expenses to be reasonable. Therefore, the court awards Fremont $38,031.29 in attorneys' fees and related non-taxable costs.
II. Bill of Costs
Pursuant to 28 U.S.C § 1920, Fremont seeks costs of $1,388.50 for exemplification and copies of papers, fees to court reporters for transcripts of depositions, and fees of the clerk as the prevailing party in this matter. Under local court rule, the party seeking taxation of costs must file a bill of costs, memorandum of costs and an affidavit verifying the bill of costs pursuant to 28 U.S.C. § 1924. See DUCivR 54-2(a). "The memorandum of costs must (i) clearly and concisely itemize and describe the costs; (ii) set forth the statutory basis for seeking reimbursement of these costs under 28 U.S.C. § 1920; and (iii) reference and include copies of applicable invoices, receipts, and disbursement instruments." Id. Any "[f]ailure to itemize and verify costs may result in their being disallowed." Id.
"Items proposed by winning parties as costs should always be given careful scrutiny." Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964). `The discretion of the court in determining and awarding costs is contingent on the court's determination that the expenses requested are allowable cost items under the statute and that the amounts are reasonable and necessary." Green Construction Co. v. Kansas Power Light CO., 153 F.R.D. 670, 675 (D. Kan. 1994).
Fremont seeks $830.50 in deposition transcript costs. Section 1920(2) provides for recovery of the "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). "[W]hether a deposition `is necessary for use in the case is not to be determined solely by whether the deposition was used at trial or in ruling on pending motions."' Echostar Satellite Corp. v. Advanced Communications Corp., 902 F. Supp. 213, 217 (D. Colo. 1995) (citations omitted). The costs of depositions taken for discovery and investigatory purposes are generally disallowed. See id. Fremont has not explained in its memorandum in support of bill of costs nor in the affidavit of Paul D. Veasy why or how the depositions were necessary to this court's ruling on summary judgment. Therefore, Fremont's request for deposition costs is denied.
Defendant seeks to recover $553.00 in costs for exemplification and copies of papers. Section 1920(4) allows for the recovery of "fees for exemplification and copies of paper necessarily obtained for use in the case." 28 U.S.C. § 1920(4). Costs incurred in responding to discovery are generally not recoverable. Therefore, this court disallows Defendant's request for copies involved in discovery. Also, "Section 1920(4) does not authorize taxation of every copy made, but only those necessarily obtained for use in the case." Manildra Mil Corp. v. Ogilivie Mills, Inc., 878 F. Supp. 1417, 1428 (D. Kan. 1995). Fremont has failed to show how or why the costs paid for copying and the exhibits to the summary judgment motion were Necessarily obtained" for use in the case. Because Defendant has failed to meet its burden in this regard, the court disallows copying costs in excess of $60.00, which is the amount the court deems reasonably necessary in relation to Fremont's motions.
Furthermore, Fremont has not provided any explanation of the necessity of docket fees for the depositions of William Williams and Mary E. Williams. Therefore, Fremont has failed to meet its burden of demonstrating that the costs are recoverable. Accordingly, the court grants Fremont $60.00 in taxable costs pursuant to 28 U.S.C § 1920.
III. Conclusion
Based on the above reasoning, Fremont's motion for attorneys' fees is GRANTED. The court awards Fremont $38,031.29 in attorneys' fees and related non-taxable costs. Under its Bill of Costs, the court awards Fremont $60.00 in taxable costs pursuant to 28 U.S.C. § 1920. DATED this 31st day of March, 2004.