Opinion
C.A. No. 01C-02-027 WLW.
Submitted June 17, 2004.
Decided August 4, 2004.
Upon Consideration of Plaintiff's Motion for Sanctions. Granted.
I. Barry Guerke, Esquire, Parkowski Guerke, Dover, Delaware, Attorneys for Plaintiffs.
Norman H. Brooks, Esquire, Marks, O'Neill, O'Brien Courtney, Wilmington, Delaware, Attorneys for Defendant.
David L. Baumberger, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorneys for Third-Party Defendant.
ORDER
Upon review of the motion of Steven and Kristen Wilson (" Plaintiffs" or "Wilsons") for sanctions pursuant to this Court's bench ruling on May 7, 2004, as well as the response of Active Crane Rentals, Inc. ("Defendant" or "Active Crane"), it appears to the Court that:
1. Plaintiffs filed a motion to compel on January 24, 2003, seeking production of the tape recorded statements of Scott McLaughlin and Philip Martin. On February 20, 2003, Commissioner Freud granted Plaintiffs' motion to compel and ordered Active Crane to duplicate the recorded statements and provide them to Plaintiffs within 14 days from the date of the order. However, Commissioner Freud did not award Plaintiffs attorney's fees. Plaintiffs received a transcript of Scott McLaughlin's statement, but Defendants could not locate the tape of Philip Martin's statement. Because they still had not received a copy of the recorded statement of Philip Martin, Plaintiffs filed a Motion for Sanctions on April 15, 2003. On August 14, 2003, Commissioner Freud denied Plaintiffs' request for sanctions, finding that the Plaintiffs failed to establish that the Defendant willfully disregarded the Court's order to produce the tape.
2. Upon Plaintiffs' motion for reconsideration of the Commissioner's order, this Court concluded that the more severe sanctions sought by Plaintiffs were not proper, but an award of attorney's fees and costs associated with Plaintiffs' attempts to obtain the tape recordings would be appropriate. At that time, the Court asked Plaintiffs' attorney to provide an Attorney's Fees Affidavit, as well as an itemization of the charges. On June 1, 2004, Plaintiffs filed the Affidavit setting forth attorney's fees totaling $2,800.00 (11.2 hours at $250.00 per hour rate). Active Crane responded, contending that the hours and rate were excessive.
3. The Court may order the party whose conduct necessitated the motion to compel to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees.
Super. Ct. Civ. R. 37(a)(4) (2004).
4. In making its determination regarding the reasonableness of attorney's fees, the Court must consider the following relevant factors: the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; the fees customarily charged in the locality for similar services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the experience, reputation, and ability of the lawyer performing the services; and whether the fee is fixed or contingent.
Princess Hotels International, Inc. v. Delaware State Bar Association, 1998 Del. Super. LEXIS 189, *19.
5. Upon reviewing the Itemization of Attorney's Fees attached to Plaintiffs' attorney's affidavit, as well as Active Crane's response, the total time of 11.2 hours appears to be reasonably related to Plaintiffs' attempts to obtain copies of the tape recorded statements. Plaintiffs' attorney drafted several letters to Active Crane beginning in January 2002 in an effort to obtain the statements. Plaintiffs filed a motion to compel as well as a motion for sanctions, both of which were heard by Commissioner Freud. Finally, Plaintiffs filed a motion for reconsideration of the Commissioner's order and presented argument on the motion to this Court.
6. Defendant contends that the hourly rate Plaintiffs are proposing is excessive and that a rate of $200.00 per hour or less would be more appropriate. In making this argument Defendant relies on a 1996 Superior Court decision. I. Barry Guerke, Esquire, Plaintiffs' attorney, has been a member of the Delaware Bar for 30 years specializing in the field of personal injury. Mr. Guerke works on a contingency fee basis, and thus does not have an established hourly rate. He has proposed an hourly rate of $250.00. While the issues raised in this case have not been particularly novel or complex, upon reviewing the relevant factors, an hourly rate of $250.00 does not appear to be unreasonable for the time Mr. Guerke spent drafting letters, motions, and presenting arguments to the Court as the hourly rate cited by Active Crane was deemed reasonable seven years ago. However, the time spent preparing the affidavit and itemization, one hour, did not require the same skill and expertise. For that hour a reduced rate of $200.00 appears to be appropriate.
Pollard v. The Placers, Inc., 1996 Del. Super. LEXIS 327, *8, aff'd 703 A.2d 1211 (Del. 1997) (hourly rate of $200.00 was appropriate when the issues involved in an appeal from an Industrial Accident Board decision were not novel or complex).
Id. at *13 (employee was entitled to a reduced hourly rate of $150.00 for the preparation of the petition and reply, which did not require the same expertise as the appeal).
7. Accordingly, the Court will award attorney's fees totaling $2,750.00 to Plaintiff.
The award is broken down as 10.2 hours at $250.00 per hour and 1.0 hour at $200.00 per hour. Thus, the total award is $2,750.00.
IT IS SO ORDERED.