Opinion
C.A. 98-266T.
March 22, 2000.
REPORT AND RECOMMENDATION
Plaintiff, Allen C. Johnson ("Johnson"), has filed a motion for attorneys' fees, expenses, and costs pursuant to 42 U.S.C. § 1988 only as to the defendant, Raymond G. Ceresi ("Ceresi"). Attorneys Richard Sinapi, v. Edward Formisano, and Michael Coleman of the law firm of Sinapi, Formisano Coleman, Ltd. seek $72,537.25 in attorney fees, expenses, and costs. This is broken down as $62,565.00 for fees in the underlying matter, $1,875.00 for fees related to this fee application, and expenses and costs of $8,472.25. Defendant Ceresi has filed an objection to plaintiffs' motion asserting that plaintiff's counsel have engaged in excessive and duplicative time, and seek "unwarranted fees and costs." Def's. Mem. at 1.
42 U.S.C. § 1988 states
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C.A. § 1681 et seq.), the Religious Freedom Restoration Act of 1993 ( 42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.
"The purpose of § 1988 is to ensure 'effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citing H.R. Rep. No. 94-1558, p. 1 (1976)).
In his supporting affidavit, Attorney Formisano reduced the request for attorney fees, expenses and costs to $52,370.00 for attorney and paralegal time, $1,500.00 for preparation of the fee application, and $7,055.25 for expenses, which request now totals $60,925.25. See Formisano Affid. at ¶¶ 14-16 and ¶ 21.
The district court has referred this matter for preliminary review, findings, and recommended disposition. See 28 U.S.C. § 636 (b)(1)(B); Local Rule 32(c). A hearing was held on February 28, 2000. Based upon my review of the legal memoranda, oral argument, and my independent research, I recommend that the district court grant to the plaintiff the sum of $31,950.00 for Attorney Formisano's fees, grant to the plaintiff the sum of $840.00 for Attorney Sinapi's fees, grant to the plaintiff the sum of $150.00 for paralegal fees, grant to the plaintiff the sum of $359.51 for costs, and deny plaintiff's request for Attorney Coleman's fees.
Background
A. Underlying Cause of Action
In the underlying lawsuit, in May 1998, plaintiff brought a complaint for negligence against defendant, State of Rhode Island ("State"), and for negligence and civil rights violations pursuant to 42 U.S.C. § 1983 against defendant, George A. Vose, Jr. ("Vose"). He alleged that while an inmate at the Adult Correctional Institution ("ACI") in April 1994, he was assaulted by another inmate and seriously injured. As a result, he underwent substantial medical treatment which led to permanent facial scarring.
The statute of limitations was tolled by reason of the fact that plaintiff was imprisoned. R.I. Gen. Laws § 9-1-19.
Substantial discovery was taken, and in February. 1999, defendant Ceresi, an ACI correctional officer, was added to the case by an amended complaint. The claim against Ceresi was for negligence and civil rights violations pursuant to 42 U.S.C. § 1983. Further discovery was taken and, in September 1999, a four day trial occurred which resulted in a substantial verdict for the plaintiff against the State and Ceresi. Defendant Vose was dismissed at the close of plaintiff's case. Defendants State and Ceresi filed a motion for new trial, a motion for remittitur, and a motion to amend the judgement. The district court amended the judgment as to the State by Order dated December 2, 1999, and denied the remaining motions. Plaintiff then filed this motion for an award of attorney's fees pursuant to 42 U.S.C. § 1988 against only Ceresi.
The jury verdict was for $225,000.00 against both the State and Ceresi and $50,000.00 in punitive damages against only Ceresi. Subsequently, the district court reduced the verdict against the State to $100,000.00 pursuant to R.I. Gen. Laws, § 9-31-2.
Discussion
I. Attorney's Fees
A. Prevailing Party
Under 42 U.S.C. § 1988, a prevailing party is entitled to recover attorneys' fees unless "special circumstances would render such an award unjust." Pontarelli v. Stone, 781 F. Supp. 114, 119 (D.R.I. 1992), appeal dismissed, 978 F.2d 773 (1st Cir. 1992) (citations omitted). Plaintiffs are defined as prevailing when they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) In short, "a plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 792 (1989); see also Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) ("In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."). In the case at bar, the plaintiff can demonstrate that he succeeded on a significant issue in the litigation and achieved some of the benefit sought in bringing the suit. The jury awarded a sizeable verdict against two of the three named defendants. Consequently, the plaintiff constitutes a "prevailing party" for purposes of calculating attorneys' fees.
B. Lodestar Approach
The Supreme Court of the United States and the First Circuit use the lodestar approach to calculate attorneys' fees. The lodestar approach multiplies the number of hours reasonably expended on the litigation times a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1190 (1st Cir. 1996);Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). The courts have deemed the lodestar fee presumptively reasonable, although it is subject to an upward or downward adjustment in certain circumstances. See Lipsett v. Blanco, 975 F.2d at 937 (citingBlum v. Stenson, 465 U.S. 886, 897 (1984)).
To calculate the reasonable hours expended, courts ascertain the time counsel actually spent on the case "and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary." Id. (quoting Grendel's Den. Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984)). For example, "[t]he time for two or three lawyers in a courtroom or conference, when one would do, 'may obviously be discounted.'"Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986) (quoting King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir. 1977)); see also Lipsett v. Blanco, 975 F.2d at 938 ("A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism.") (citations omitted). In addition, "[c]lerical or secretarial tasks ought not to be billed at lawyer's rates, even if a lawyer performs them." Lipsett v. Blanco, 975 F.2d at 940 (citingMissouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)).
To determine the reasonable hourly rate, courts utilize the "prevailing market rates in the relevant community . . ."Andrade v. Jamestown Housing Authority, 82 F.3d at 1190; see also Blum v. Stenson, 465 U.S. at 895 n. 11 (defining "prevailing market rates" as "those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation"); United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988) (stating that courts look to the "prevailing rates in the community for comparably qualified attorneys"). The District Court is not obligated to adopt the petitioning attorney's customary billing rate or what that attorney asserts is the prevailing rate in the community. See Andrade v. Jamestown Housing Authority, 82 F.3d at 1190. On the contrary, the District Court is "entitled to rely upon its own knowledge of attorney's fees in its surrounding area. . . ." Id. (citing Nydam v. Lennerton, 948 F.2d 808, 812-13 (1st Cir. 1991); United States v. Metropolitan Dist. Comm'n., 847 F.2d at 19)
The party requesting attorney's fees maintains the burden of providing sufficient documentation and "evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly." O'Rourke v. City of Providence, 1999 WL 1132539 (D.R.I. 1999) (quoting Hensley v. Eckerhart, 461 U.S. at 433). The documentation must constitute a "full and specific accounting of the tasks performed, the dates of the performance, and the number of hours spent on each task." Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 (1st Cir. 1991) (citations omitted). The rationale for requiring a full and specific accounting is to allow the District Court "to gage whether the task performed was warranted," and whether "the time factor allocated was appropriate or excessive." Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994).
C. Upward or Downward Departure
Calculating the lodestar equation does not terminate the inquiry into the fee award. The District Court may adjust the fee upward or downward depending on other factors, including the results obtained. See Hensley v. Eckerhart, 461 U.S. at 434. The result obtained is
particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?Id. On the other hand, to avoid double counting, "considerations concerning the quality of a prevailing counsel's representation normally are reflected in the reasonable hourly rate" and therefore, "the overall quality of performance ordinarily should not be used to adjust the lodestar" to remove "any danger of 'double counting.'" Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986). To attain an upward adjustment, the fee applicant has the burden of proving that such an adjustment is necessary. See Blum v. Stenson, 465 U.S. at 898.
D. Application
1. Request for Fees by Attorneys Formisano and Sinapi
Attorney Formisano has filed an affidavit with attached time records stating that he was the primary attorney on this file and that he tried this matter for plaintiff. Attorney Formisano is new to the Bar having been admitted to the Rhode Island Bar in 1996 and the Bar of this Court in 1997. He claims experience in the "area of civil law and litigation." Formisano Affid. at ¶ 5. He claims to have handled "several cases involving a variety of civil rights claims, including but not limited to Eighth Amendment rights." Id. Attorney Formisano does not further detail his experience. He states that his normal hourly rate is $125.00 which he believes is at or below the prevailing market rate for similarly experienced counsel in this community. Attorneys Sinapi and Coleman also rendered services on this matter and charged an hourly rate of $150.00 which Attorney Formisano states is at or below the prevailing rate for similarly experience counsel in this community. Further, Attorney Formisano stated that the paralegal hourly rate charged in this matter was $50.00 which is at or below the prevailing market rate for paralegals of similar experience and performing similar work in this community.
Initially, Johnson's counsel undertook to represent him based upon a contingency fee agreement. Attorney Formisano stated at the hearing that he agreed to take a percentage of the gross recovery including whatever is awarded for attorney's fees pursuant to § 1988.
Attorney Formisano states that he spent 354.3 hours on this matter, Attorney Sinapi spent 68.9 hours, Attorney Coleman spent 2.5 hours, and the paralegal spent 3.0 hours.
Attorney Sinapi also filed an affidavit stating he rendered legal services in this matter and that he has been a member of the Rhode Island Bar since 1983, and a member of this Court's Bar since 1984. He has practiced law in Rhode Island since graduating from law school and has "a considerable amount of experience in the area of civil litigation, including civil rights actions." Sinapi Affid. at ¶ 5. He opined that his hourly rate of $150.00 and Attorney Formisano's hourly rate of $125.00 were at or below the prevailing market rate for similarly experienced counsel. The hourly rate of $50.00 for paralegal time is also well within the prevailing market rate for this community. He stated that with few exceptions which have already been discounted, there was no significant duplication or unnecessary legal work in this matter, but, rather, the legal work performed was reasonable and necessary and the fee award sought is "modest." Id. at ¶ 9.
Defendant Ceresi has objected to plaintiff's motion for attorney's fees arguing that the time charged is excessive; that plaintiff prevailed on only two of six claims made; that he did not prevail against defendant Vose; that some of the time charged is duplicative, unproductive and unnecessary; the matter was "overstaffed"; the time records are inadequate; that much of Attorney Formisano's time was "training"; and much of the time spent was on "clerical" duties rather than legal work.
Attorney Formisano has discounted his and Attorney Sinapi's time due to "possible duplication of effort and/or excessive or unproductive time expended" due to "minor duplication of effort with respect to the review and revising of various pleadings and discussions among firm members in connection with the representation of the Plaintiff." Formisano Affid. at ¶ 14. Consequently, Attorney Formisano has reduced his hours spent on this file to 337.8 hours of legal work and 2.8 hours of clerical type work; Attorney Sinapi has reduced his hours to 62.8. Also, the time spent on preparing this fee application has been reduced to 12 hours from 15 hours due to "certain unproductive time and some minor duplication of effort." Id. at ¶ 18. And the expenses have been reduced to $7,055.25. Consequently, the fee application now seeks $52,370.00 for attorney and paralegal time, $1,500.00 for preparation of the fee application, and $7,055.25 for expenses, which amounts total $60,925.25.
2. Reasonableness of Hourly Rates
Johnson had multiple counsel working on this matter. Attorney Formisano, by his own admission, has limited experience at the Bar and in the field of civil rights litigation. He seeks an hourly rate of $125.00 which he states is at or below the prevailing rate for similarly situated counsel in Rhode Island. He did not file any supporting affidavit from other Rhode Island counsel except Attorney Sinapi who is a member of the same law firm. Ceresi has not objected to this hourly rate or offered any opposing affidavit, and the experience and knowledge of this court as to prevailing rates would confirm that an hourly rate of $125.00 is within the range, albeit the high end of the range, of prevailing rates in Rhode Island for an attorney possessing the experience and skills of Attorney Formisano (approximately three years at the Bar). This court's knowledge of hourly rates is based upon information learned at settlement conferences, other reports and recommendations issued by this court as to awards of counsel fees, decisions of other courts in attorney fee cases, and upon the court's own experience in approximately thirty years of litigation prior to coming to the federal court. Therefore, I find that an hourly rate of $125.00 for Attorney Formisano is reasonable.
Attorney Sinapi seeks an hourly rate of $150.00 for his work on this matter where he was not the primary counsel. He has sixteen years of experience at the Bar and has litigated many cases including civil rights matters. Attorney Sinapi is a cum laude graduate of the Harvard Law School. He has not filed a supporting affidavit from any outside counsel with similar experience, but Attorney Formisano's affidavit supports the $150.00 hourly rate. Based upon this court's experience and knowledge of prevailing rates in this community as to counsel with similar experience, the hourly rate of $150.00 is below that range. Ceresi has not objected to this hourly rate or offered any opposing affidavit. Therefore, I find that an hourly rate of $150.00 for Attorney Sinapi is quite reasonable.
As to the paralegal hourly rate of $50.00, again, Ceresi offers no objection. This rate is supported by the affidavits of Johnson's counsel, but not by any independent source. This court is familiar with the rates for paralegal work in this community and $50.00 is at the low range of prevailing rates for litigation paralegal work. I find that an hourly rate of $50.00 for litigation paralegal work is reasonable.
3. Hours Reasonably Expended
As indicated above, to determine the number of hours reasonably expended, the court must first determine the number of hours plaintiff's counsel actually spent and subtract from that figure hours which were "'duplicative, unproductive, excessive and otherwise unnecessary.'" Lipsett, 975 F.2d at 937 (quotingGrendel's Den. Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984)). In addition, plaintiff's counsel has the burden of providing the court with adequate records and documentation to support their claim for attorneys' fees. Hensley, 461 U.S. at 433.
Here, Attorney Formisano states that he expended 337.8 hours of legal work and 2.8 hours of "clerical type" work. He states that Attorney Sinapi expended 62.8 hours of legal work. Both counsel state that a paralegal spent 3.0 hours of paralegal work. Counsel state that they have eliminated any excessive time, duplication, unproductive, and/or unnecessary time. Ceresi objects arguing that additional time should be excluded as some duplication, excessive time, unproductive time and unnecessary time remains. Also, the court should distinguish between in-court and out-of-court time, scrutinize the time records, and eliminate all time prior to Ceresi's addition to the case as a defendant.
4. Adequacy of Documentation and Records
According to the Supreme Court, "[t]he party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation is inadequate, the district court may reduce the award accordingly." Hensley, 462 U.S. at 433. Since 1985, the First Circuit has maintained particularly stringent requirements concerning the documentation necessary to support a fee petition. In Grendel's Den. Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984), the First Circuit stated — that "[h]enceforth, in cases involving fee applications for services rendered after the date of this opinion, the absence of detailed contemporaneous time records, except in extraordinary circumstances, will call for a substantial reduction in any award or, in egregious cases, disallowance." Id. at 952. In Lipsett, the First Circuit explained that this heightened standard is required so as to "'allow the paying party to dispute the accuracy of the records as well as the reasonableness of the time spent.'" Lipsett, 975 F.2d at 938 (quoting Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir. 1986)). InPontarelli v. Stone, 781 F. Supp. 114 (D.R.I. 1992), this Court explained that parties must submit detailed "contemporaneous" records and documentation "[i]n order to ensure that the information presented is reliable and sufficiently detailed so that the reasonableness of the fee claimed may be challenged by the adversary and evaluated by the court. . . ." Id. at 120. ThePontarelli court also noted that "when more than one attorney represents a plaintiff, the records must contain a 'convincing description of the division of labor' so that it can be determined whether and to what extent the efforts of various counsel were duplicative." Id. at 121 (quoting Furtado v. Bishop, 635 F.2d 915, 922 (1st Cir. 1980)).
In Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991), the First Circuit further clarified the meaning of "detailed" records. "We have painstakingly delineated the specific documentary preconditions to fee awards, requiring litigants to submit a 'full and specific accounting' of the tasks performed, the dates of performance, and the number of hours spent on each task." Id. at 527 (citing Calhoun v. American Cleveland Corp., 801 F.2d 558, 560 (1st Cir. 1986); Coldex Corp. v. Milgo Electronic Corp., 717 F.2d 622, 632 (1st Cir. 1983),cert. denied, 466 U.S. 931 (1984); King v. Greenblatt, 560 F.2d 1024. 1027 (1st Cir. 1977), cert. denied, 438 U.S. 916 (1978);Henley v. Eckerhart, 461 U.S. 424, 437 (1983)). In sum, a petition for attorney's fees has the proper documentary support when it contains "detailed contemporaneous time records", Id. at 528, that provide a "full and specific accounting of the tasks performed, the dates of performance, and the hours expended."Id. at 527. The documentation must be sufficiently specific so as to allow the court and opposing party the opportunity to assess and challenge the petition.
Finally, "total disallowance may be justified 'when the application is grossly and intolerably exaggerated, or manifestly filed in bad faith.'" Pontarelli, 781 F. Supp. at 121 (quotingJordan v. United States Dep't of Justice, 691 F.2d 514. 518 (D.C. Cir. 1982)). In other words:
[T]he lack of a good faith effort to eliminate time expended on separate unsuccessful claims or on behalf of unsuccessful litigants or to exclude hours which are "excessive, redundant, or otherwise unnecessary" may constitute the kind of special circumstances that warrants complete denial of a fee request.Id. (quoting Lewis v. Kendrick, 944 F.2d 949, 957 (1st Cir. 1991))
In Pontarelli, this Court found that plaintiffs' fee application was not supported by the proper documentation. Plaintiffs' counsel's affidavit in support of the fee petition stated that the petition was prepared from contemporaneous time records, but this Court concluded that the evidence contradicted this affidavit. Id. at 121. "On cross-examination, [plaintiffs' counsel] acknowledged that the time records submitted by the 'plaintiffs' included 'estimates' of the hours she spent on this case . . . She further acknowledged that those 'estimates' were made long after the work had been performed." Id. This Court concluded that "[t]his abject failure to satisfy the contemporaneousness requirement cannot be dismissed as a mere technicality because it appears to have contributed to patent inaccuracies in the documentation purportedly supporting 'plaintiffs' fee petition." Id. at 122.
Application of these standards to the case at hand reveals that the submitted documentation is informative, although most any time records could be more informative. Each counsel has listed by date the work performed, the time expended, and the amount charged for that work. This itemization is sufficient for this court and defense counsel to assess the fee petition properly. However, counsel have not submitted the contemporaneous time records with their affidavits. The time records received with the petition are represented by a typewritten log which includes the information noted above. I assume the basis for this log was the contemporaneous time records. But the submitted records are deemed sufficiently detailed to lead this court to credit the assertion that they are summaries of contemporaneous time records. Some case law suggests that Johnson's counsel should have submitted the actual contemporaneous records themselves. Nonetheless, I conclude that counsels' failure to do so in this case is de minimis as it does not prevent Ceresi or this court from properly assessing and challenging the time expenditures. Specifically, unlike the situation set forth in Pontarelli, counsels' failure to submit the actual contemporaneous time records does not "contribut[e] to patent inaccuracies in the documentation purportedly supporting the . . . fee application." Pontarelli, 781 F. Supp. at 122. Accordingly, I find that counsels' affidavits and attached submissions which are logs of the time spent, the work performed and the dates thereof meet the obligations to this court and to the defendant.
5. "Duplicative, Unproductive, Excessive or Unnecessary" Time
"Where two firms represent the same clients it is necessary to review the application to determine whether there are excessive or repetitive fees within each firm and between each of the firms." Tennessee Gas Pipeline Co. v. 140 Acres of Land, 828 F. Supp. 123, 129 (D.R.I. 1993). The First Circuit has noted that, "[a]s a general matter, 'the time for two or three lawyers in a courtroom or conference, when one would do may obviously be discounted.'" Lipsett, 975 F.2d at 938 (quoting Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986)). In fact, "[a] trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism." Id. (citing United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 590 (D.R.I. 1983) (noting that district courts "must zealously guard against any propensity to over-staff litigation.")). Nonetheless, the Lipsett court also recognized that "a litigant's staffing needs often vary in direct proportion to the ferocity of her adversaries' handling of the case . . ." Id. at 939. Accordingly, the Lipsett court disagreed with appellants' contention that the plaintiffs had over-staffed their case and were not entitled to full compensation. The Lipsett court found no reason to upset the district court's determination that, because the case was complex and the defendants' counsel were formidable, plaintiffs' staffing was "reasonable and necessary." Id.; accord Johnson v. University College of the Univ. of Ala., 706 F.2d 1205, 1208 (11th Cir.), cert. denied, 464 U.S. 994 (1983) ("The retaining of multiple attorneys in a significant, lengthy employment discrimination case . . . is understandable and not a ground for reducing the hours claimed.").
In Pontarelli, this Court found that plaintiffs "failed to make a good faith effort to exclude hours spent on unrelated matters or hours that were duplicative or otherwise unproductive." Pontarelli, 781 F. Supp. at 123. This Court noted that plaintiffs' counsel did not exclude time spent on other, unrelated matters, or time spent on lobbying efforts. This Court also faulted plaintiffs' counsel for failing to exclude "hours spent on the numerous requests for continuances and extensions of time that they made during the course of this litigation and on a mandamus petition that they filed with the Court of Appeals . . . unsuccessfully challenging the Court's denial of the last in a series of requests to postpone the trial." Id. Moreover, the Court noted that plaintiffs "made no attempt to eliminate duplicative hours logged in those instances where two or more attorneys attended the same conferences, sat in on the same depositions or other proceedings and reviewed the same documents." Id. This Court summed this problem up as follows:
The net result is that the fee claimed has been grossly inflated. One measure of the extent of that inflation is the disproportion between the total time the "plaintiffs'" attorneys say they spent on this case, and what one would expect was reasonably required. Thus, compensation is sought for more than 4,000 billable hours which represent more than two full years of a lawyer's billable time. However, despite the sweeping allegations contained in the complaint, the "plaintiffs'" claims were based on a relatively simple sequence of events occurring over a limited period of time. It is inconceivable that even the most vigorous advocacy of those claims required anywhere near the number of hours for which the "plaintiffs" seek recovery.Id. at 123-24. This Court concluded that plaintiffs' counsels' fee petition was so grossly inflated that it constituted bad faith, and this Court denied the fee petition in its entirety.Id. at 124.
In the case at hand, Johnson's counsel have excluded some hours that they deem duplicative or unnecessary. In his affidavit, Attorney Formisano states that "[t]his firm has reduced its fee below the total time reflected in [the original time records] for possible duplication of effort and/or excessive or unproductive time expended. These reductions include time expended for some minor duplication of effort with respect to the review and revising of various pleadings and discussions among firm members in connection with the representation of the Plaintiff." Formisano Affid. at ¶ 14. In this court's opinion, counsel used a rather blunt knife to cut duplicative/excessive/unproductive/unnecessary time when a sharp meat cleaver would have been more appropriate.
Before continuing, this court desires to make clear that it is not critical of counsels' work. An excellent result was obtained for the plaintiff. However, the law in this Circuit requires further substantial reductions in counsels' time. It is patently clear that some time expended by Attorney Formisano is excessive, but was based upon his lack of experience and the fact that he has been a member of the Bar only three years at time of trial. As Attorney Formisano develops experience and sharpens his skills, he will become more efficient and productive in litigation matters. His problem as to time expended is shared by any litigation associate commencing his/her career and is an inevitable occurrence until experience and practice are obtained.
I will first examine the time entries for Attorney Formisano indicating the reductions and the reason/s therefore:
Date Reduction Reason
4/28/98 1.0 hours This court will not allow time for consultations and conferences between counsel as this is duplicative and unnecessary. Also, "review of file" is unnecessary when the matter has been in counsels' control for nine months. 5/01-07/98 2.6 hours Conference between counsel — duplicative. Excessive time to draft a complaint. 6/24/98 .50 hours Conference with counsel — duplicative. 6/25/98 2.0 hours Conference with counsel — duplicative. Excessive time to draft discovery pleadings. 6/29/98 .50 hours Conference with counsel — duplicative. 7/08/98 .20 hours Duplicative. Time charged on 7/07/98. 7/20/98 1.0 hours Conference with counsel — duplicative. Excessive time for continuing review and revision of discovery 7/22/98 1.0 hours Conference with counsel — duplicative. 7/23/98 4.0 hours Conference with counsel — duplicative. Excessive time in light of 7/22 entry for same work. 7/24/98 2.0 hours Conference with counsel — duplicative. Excessive time in light of 7/22-23 entries for same work. 7/27/98 .50 hours Conference with counsel — duplicative. 7/31/98 .75 hours Conference with counsel — duplicative. Also, excessive time in light of 7/22-24 entries. 8/06/98 1.0 hours Duplicative and excessive as to motion to dismiss. 9/14/98 .50 hours Conference with counsel — duplicative. 9/18/98 .30 hours Conference with counsel — duplicative. 9/23/98 .50 hours Conference with counsel — duplicative. 9/30/98 .50 hours Conference with counsel — duplicative. 10/01/98 2.0 hours Excessive time spent. 10/06/98 .20 hours Conference with counsel — duplicative. 10/13/98 .30 hours Conference with counsel — duplicative. 10/16/98 .50 hours Duplicative effort on demand letter. 10/19/98 .20 hours Conference with counsel — duplicative. 10/20/98 .30 hours Conference with counsel — duplicative. 10/29/98 .50 hours Conference with counsel — duplicative. 11/13/98 1.50 hours Duplicative time on conference with counsel. 11/16/98 .20 hours Conference with counsel — duplicative. 12/02/98 .30 hours Unnecessary time — "review file". 1/13/99 .30 hours Conference with counsel — duplicative. 1/15/99 1.0 hours Duplicative time on preparation of amended complaint (see 12/22/98). 1/18/99 .40 hours Duplicative work on amended complaint. Conference with counsel — duplicative. 2/07/99 .15 hours Conference with counsel — duplicative. 3/16/99 .15 hours Conference with counsel — duplicative. 3/29/99 1.40 hours Duplicative of time spent by Attorney Sinapi on 3/26/99. 3/30/99 1.70 hours Duplicative of time spent by Attorney Sinapi on 3/29/99. 4/28/99 3.50 hours Excessive time spent for preparation of pretrial memorandum considering hours spent on 4/26 and 27. 5/24-25/99 .20 hours Duplicative time — see 5/07 entry. 5/28/99 and 2.0 hours Duplicative time — see 5/27 entry. 6/01/99 8/03/99 .25 hours Unnecessary time — "work on organizing file". 8/05/99 5.0 hours Excessive time spent considering total time for this day is stated as 12.10 hours. 8/24/99 2.0 hours Excessive time spent on settlement statement. Unnecessary time spent on "work on file". 9/02/99 3.20 hours Excessive time spent on these matters. 9/06/99 2.30 hours Excessive time spent on these matters. 9/10/99 .50 hours Conference with counsel — duplicative. 9/15/99 2.50 hours Duplicative time as work done by Attorney Sinapi. 9/16/99 1.50 hours Duplicative time as work done by Attorney Sinapi. 9/17/99 1.20 hours Unnecessary time spent "review file" and "work on organizing file". 9/23/99 .70 hours Unnecessary time spent "work on organizing file". 9/27/99 6.40 hours Excessive time spent. 9/28/99 7.30 hours Excessive time spent. 9/29/99 8.50 hours Excessive time spent. 9/30/99 4.70 hours Excessive time spent. 10/01/99 .50 hours Conference with counsel — duplicative.
Consequently, I recommend that Attorney Formisano's total hours be reduced by 82.2 hours.
Turning now to the entries of Attorney Sinapi, I will also review the time records for any time that is unnecessary, excessive, duplicative and/or unproductive. It should be remembered that the First Circuit has stated that "[a]s a general matter, 'the time for two or three lawyers in a courtroom or conference, when one would do may obviously be discounted.'" Lipsett, 975 F.2d at 938 (quoting Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986)). In fact, "[a] trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism." Id. (citing United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 590 (D.R.I. 1983) (noting that district courts "must zealously guard against any propensity to over-staff litigation.")).
Date Reduction Reason
5/05/98 2.80 hours Duplicative of Attorney Formisano's time. 5/06/98 2.60 hours Duplicative of Attorney Formisano's time. 5/07/98 1.70 hours Duplicative of Attorney Formisano's time and work was part clerical. 5/08/99 2.00 hours Duplicative of Attorney Formisano's time. 5/11/98 1.50 hours Duplicative of Attorney Formisano's time. 6/25/98 1.00 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 6/26/98 0.50 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 7/02/98 0.50 hours Duplicative of Attorney Formisano's time and work was part clerical. 7/20/98 0.20 hours Duplicative of Attorney Formisano's time. 7/23/98 0.50 hours Duplicative of Attorney Formisano's time. 7/24/98 2.50 hours Duplicative of Attorney Formisano's time. 7/27/98 1.30 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 7/28/99 0.60 hours Duplicative of Attorney Formisano's time. 7/29/98 0.30 hours Duplicative of Attorney Formisano's time. 8/06/98 0.50 hours Conference with counsel — duplicative. 9/22/98 0.50 hours Duplicative of Attorney Formisano's time. 9/28/98 0.30 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/29/98 0.30 hours Conference with counsel — duplicative. 9/30/98 0.30 hours Conference with counsel — duplicative. 10/01/98 0.50 hours Conference with counsel — duplicative. 10/06/98 0.40 hours Conference with counsel — duplicative. Duplicative of Attorney Formisano's time. 10/13/98 1.40 hours Conference with counsel — duplicative. Duplicative of Attorney Formisano's time. 10/16/98 1.00 hours Conference with counsel — duplicative. Duplicative of Attorney Formisano's time. Excessive time in light of 10/6 and 10/13 entries. 10/20/98 0.50 hours Conference with counsel — duplicative. Duplicative of Attorney Formisano's time. 10/27/98 0.70 hours Conference with counsel — duplicative. Duplicative of Attorney Formisano's time. 10/28/98 0.50 hours Duplicative of Attorney Formisano's time. 10/29/98 0.50 hours Duplicative of Attorney Formisano's time. 11/13/98 1.00 hours Duplicative of Attorney Formisano's time. 11/23/98 0.20 hours Duplicative of Attorney Formisano's time. 12/11/98 0.20 hours Duplicative of Attorney Formisano's time. 12/15/98 0.30 hours Duplicative of Attorney Formisano's time. 1/17/99 0.70 hours Duplicative of Attorney Formisano's time. 1/18/99 0.20 hours Conference with counsel — duplicative. 2/01/99 0.20 hours Duplicative of Attorney Formisano's time. 2/07/99 0.20 hours Conference with counsel — duplicative. 3/26/99 1.50 hours Duplicative of Attorney Formisano's time. 5/27/99 0.40 hours Duplicative of Attorney Formisano's time. 6/08/99 0.20 hours Conference with counsel — duplicative. 6/29/99 0.50 hours Duplicative of Attorney Formisano's time. 8/05/99 1.00 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 8/12/99 0.50 hours Conference with counsel — duplicative. 8/23/99 0.50 hours Duplicative of Attorney Formisano's time. 8/30/99 2.00 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/01/99 0.30 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/02/99 2.90 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/07/99 0.40 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/14/99 2.00 hours Duplicative of Attorney Formisano's time. 9/15/99 2.50 hours Duplicative of Attorney Formisano's time. 9/16/99 1.00 hours Duplicative of Attorney Formisano's time. 9/21/99 1.50 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/22/99 0.50 hours Duplicative of Attorney Formisano's time. 9/27/99 4.50 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. Double entry. 9/28/99 0.80 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 9/29/99 2.30 hours Duplicative of Attorney Formisano's time. 9/30/99 2.50 hours Duplicative of Attorney Formisano's time. Conference with counsel — duplicative. 10/01/99 0.70 hours Conference with counsel — duplicative. 10/04/99 0.30 hours Conference with counsel — duplicative.
Consequently, I recommend that Attorney Sinapi's total hours be reduced by 57.2 hours.
There is only one entry for Attorney Coleman which is for 8/25/99, shortly before trial, when he researched law pursuant to 42 U.S.C. § 1983 and charged 2.50 hours of time. Attorney Coleman did not supply the court with an affidavit in support of his time and charges. This court has no method of determining why this research was left to a time shortly before trial. Normally, this research would have been accomplished prior to filing suit or prior to the amendment of the complaint to add Ceresi. Since I do not have sufficient information as to this charge and the burden is on plaintiff to show a basis for counsel's time, I recommend that the district court not allow this time or charge.
The paralegal time is listed as 3.00 hours at $50.00 per hour. On 8/05/99 and 8/06/99, the paralegal traveled to state courts to obtain copies of files. These were criminal files involving Ceresi and were necessary to this matter as they may have contained information which could be used to cross-examine Ceresi. Consequently, I recommend that the district court allow this time and charge as it seems necessary and reasonable.
Turning to counsels' time spent in preparing the petition for counsel fees, plaintiff initially sought 15 hours of time, but later reduced this to 12 hours due to "certain unproductive time and some minor duplication of effort." Formisano Affid. at ¶ 18. After careful' review of the time spent on the fee application, I believe 12 hours to be excessive and recommend reducing the time to 10 hours which is a reasonable number, albeit at the high end of reasonableness in this matter. However, this court finds it excessive to make defendant Ceresi compensate counsel at his allowed hourly rate for work done to collect attorney's fees. "[T]ime reasonably expended in connection with fee applications is itself compensable, but, since time spent in this exercise often amounts to little more than 'documenting what a lawyer did and why he or she did it,' it may fairly be compensated at a reduced rate." Brewster v. Dukakis, 3 F.3d 488, 494 (1st Cir. 1993) (citing Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983)). In Brewster, the First Circuit allowed compensation at the rate of $80.00 per hour for this time and this Court will follow this practice. Consequently, I recommend that the district court allow $800.00 in attorney fees for the fee application.
6. Adjustments to the Lodestar
Calculating the lodestar equation does not terminate the inquiry into the fee award. The District Court may adjust the fee upward or downward depending on other factors, including the results obtained. See Hensley v. Eckerhart, 461 U.S. at 434. The result obtained is
particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?Id. On the other hand, to avoid double counting, "considerations concerning the quality of a prevailing counsel's representation normally are reflected in the reasonable hourly rate" and therefore, "the overall quality of performance ordinarily should not be used to adjust the lodestar" to remove "any danger of 'double counting.'" Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986). To attain an upward adjustment, the fee applicant has the burden of proving that such an adjustment is necessary. See Blum v. Stenson, 465 U.S. at 898.
Here, plaintiff has not sought nor requested any upward adjustment of the lodestar fee. Consequently, none should be awarded, especially in light of the excellent result obtained for the plaintiff and the fact that counsel will receive a percentage of that result.
Defendant argues that the lodestar fee should be reduced as plaintiff did not prevail on all claims. In particular, plaintiff did not prevail on his claim against defendant Vose. However, the claim against Vose was interconnected to and related to the claims against the State and Ceresi. And counsel can be compensated for unsuccessful claims if these claims are sufficiently interconnected with the claims on which plaintiff prevailed. Lipsett, 975 F.2d at 940. Here, the claims were sufficiently interconnected and plaintiff's counsel should be allowed to recover reasonable fees for all legal work. See Morgan v. Gittens, 915 F. Supp. 457, 466 (D.Mass. 1996) ("Where claims presented by plaintiff in a civil rights suit are related and plaintiffs have won substantial relief, attorneys fees under § 1988 should not be reduced because of a discrete unsuccessful claim by plaintiffs.")
7. Attorney Fees for Post-Trial Motions
Ceresi objects to the time charged by plaintiff's counsel as to post-trial motions. The affidavits filed with the court in support of this fee application do not contain any time or charges after October 4, 1999. Therefore, in this fee application, plaintiff has not sought any compensation for legal work after October 4, 1999, including the post-trial motions, except for the preparation of the fee application which issue has been resolved. This issue is moot.
II. Costs
Initially, plaintiff sought $8,472.25 in costs, but later pared this down to $7,055.25.
Standard
Fed.R.Civ.P. 54(d) provides that ". . . costs shall be allowed as of course to the prevailing party unless the court otherwise directs;. . . ." Pursuant to 28 U.S.C. § 1920, "[a] judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.28 U.S.C. § 1920 is significant because it "defines the term 'costs'" as used in Fed.R.Civ.P. 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987).
In addition, 28 U.S.C. § 1924 provides that:
[T]he party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.
Local Rule 25(c)(1) provides:
Costs shall be taxed as provided in Rule 54(d) of the Federal Rules of Civil Procedure. A party entitled to costs shall, within 10 days after the entry of judgment, unless time is extended under Rule 6(b) of the Federal Rules of Civil Procedure, deliver to the clerk of the court and serve on the attorneys for all adverse parties, a costs statement together with a notice of application to have the costs taxed. This statement shall include a memorandum of the costs and necessary disbursement, so specifying each item that the nature of each can be readily understood, and the statement of costs shall be verified by a person acquainted therewith.
A "bill of costs" form (AO 133) is available to the prevailing party and can be obtained from the Clerk's office. This form contains the statutory language from § 1924 and eliminates the need for a separate affidavit. Here, plaintiff did not use this form, but, rather, filed an affidavit with the bill of costs complying with § 1924.
The Court may exercise discretion when awarding the prevailing party costs and reimbursement of expenses. See In re: Fidelity/Micron Securities Litigation, 167 F.3d 735, 736 (1st Cir. 1999); In re Thirteen Appeals-San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 309 (1st Cir. 1995). The Court will consider the facts and equities on a case-by-case basis. In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. 41, 46 (D.P.R. 1992). Unverified expenses and costs may be rejected out of hand. See In re: Fidelity, 167 F.3d at 738; Weinberger v. Great N. Nekoosa Corp., 925 F.2d at 527. "The Court does have discretion to allow unverified costs where it is clear from the nature of the cost that it was necessarily incurred." O'Rourke v. City of Providence, 1999 WL 1132539, *5 (D.R.I. 1999) (citingPhetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 9 (1st Cir. 1993)). But "the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute." Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964). In the First Circuit, the rule is "[o]rdinarily the taxation of costs would be limited to those ordinary costs authorized by § 1920. Extraordinary costs may be allowed, however, when specifically approved by the court prior to trial." Templeman v. Chris Craft Corp., 770 F.2d 245, 250 (1st Cir, 1985) (quoting Gradman Holler GMBH v. Continental Lines, S.A., 679 F.2d 272, 274 (1st Cir. 1982)).
A prevailing party within the meaning of Rule 54(d) is defined as follows:
To be a prevailing party [a] party need not prevail on all issues to justify a full award of costs, however. Usually the litigant in whose favor judgment is rendered is the prevailing party for purposes of rule 54(d). . . . A party who has obtained some relief usually will be regarded as the prevailing party even though he has not sustained all his claims. . . . Cases from this and other circuits consistently support shifting costs if the prevailing party obtains judgment on even a fraction of the claims advanced.Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995) (quoting United States v. Mitchell, 580 F.2d 789, 793-94 (5th Cir. 1978)) (citations omitted).
In order to be a prevailing party under [Rule 54(d)], the party must have succeeded "'on a significant issue in the litigation that achieves some of the benefits the party sought in bringing the suit.'"Ann Howard Designs, L.P. v. Southern Frills, Inc., 7 F. Supp.2d 388, 389-90 (S.D.N.Y. 1998) (quoting Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 50 (S.D.N.Y. 1994)).
[A prevailing party is] one in whose favor a judgment is rendered, regardless of whether the party has recovered its entire claim or a portion thereof.Garonzik v. Whitman Diner, 910 F. Supp. 167, 168 (D.N.J. 1995).
A prevailing party, for purposes of Rule 54(d), is a party in whose favor judgment is rendered. Traditionally, this means the party who won at trial, whether or not that party prevailed on all issues, and regardless of the amount of damages awarded.All West Pet Supply Co. v. Hill's Pet Products Division, Colgate-Palmolive Co., 153 F.R.D. 667, 668-69 (D.Kan. 1994).
It is incumbent upon the party seeking costs to describe the nature of the expenses adequately or to explain why they should be awarded. Donnelly v. Rhode Island Board of Governors for Higher Education, 946 F. Supp. 147, 152 (D.R.I. 1996).
A discussion of the law as to each type of cost sought reveals:
Postage
Plaintiff seeks postage in the amount of $81.93. This item of cost should be disallowed. This expense is not recoverable as costs under § 1920 as it is not included therein. See Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D.Tex. 1997); Cleveland v. North American Van Lines, Inc., 154 F.R.D. 37, 38 (N.D.N.Y. 1994).
Photocopies
Plaintiff seeks costs for "photocopies" in the sum of $346.73. The cost of copies of papers may be taxed under § 1920(4) if "necessarily obtained for use in the case." Copies may be deemed necessary even if not used in the trial of the matter. Piester v. IBM Corp., 1998 WL 1267929 at *2 (1st Cir.) Consequently, in order for copies to be taxable in a case, the party seeking to tax the cost must show some evidence of necessity. Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994). Photocopying costs for the convenience, preparation, research, or records of counsel may not be recovered. Grady v. Bunzl Packaging Supply Co., 161 F.R.D. 477, 479 (N.D.Ga. 1995).
Plaintiff has not provided any information as to the necessity of the photocopies sought to be included in costs. This court has no method of determining the necessity without additional information which has not been forthcoming. Consequently, this item of costs should be disallowed.
Photographs
Plaintiff seeks costs for this expense in the sum of $169.51. Costs for exemplification have been interpreted to include demonstrative evidence such as models, charts, photographs, illustrations, and other graphic aids. Costs and Expenses in Federal Court, 101 F.R.D. 553, 584-85. Some courts require prior court approval before taxation of demonstrative evidence is allowed, but other courts only require the items to be necessary to an understanding of an issue and a material aid to the jury. Id. at 585; Pinshaw v. Monk, 565 F. Supp. 44, 46 (D.Mass. 1983)
The cost of preparing a wide variety of papers and physical exhibits also has been allowed, either under Section 1920 or as an exercise of judicial discretion. Among these are photostatic copies of papers, maps, photographs, charts, patents, patent drawings, surveys, motion pictures, financial summaries, and certified copies of records. As indicated in the notes, however, there are cases refusing to tax many of these expenses. The likelihood of one of these items being allowed is increased if it is used as evidence at trial or some other showing is made indicating that the expense was necessarily incurred in connection with the case.
10 Wright, Miller Kane, Federal Practice and Procedure: Civil 3d § 2677 at 453-58.
Here, no explanation or description of the photographs has been provided to this Court. However, this Court is able to determine from plaintiff's affidavits and memorandum that the photographs were of plaintiff's face and showed the injuries and scarring thereto. The photographs were necessary as a material aid to the jury and this cost should be allowed.
Medical Reports — David T. Barrall. M.D .
Plaintiff seeks to recover $360.00 as an expense for the reports of Dr. Barrall, plaintiff's plastic surgeon. This court interprets this expense as the cost of having Dr. Barrall prepare typewritten medical reports from his notes for use in this matter. There is no provision for this type of expense in § 1920 and, consequently, this expense should be disallowed.
Service of Process
Plaintiff seeks to recover the expense of $709.00 for service of process. Plaintiff does not inform the Court as to whether this item is for service of process against the three defendants and/or service of subpoenas on various deponents. Without more, this Court cannot determine the reasonableness of this charge. Plaintiff has not met his burden as to this issue and this charge should be disallowed.
Witness Fee of Dr. Barrall
Plaintiff seeks an expense of $1,000.00 presumably for Dr. Barrall's fee for testifying in this matter. This expense is not allowed except for the daily rate set forth in § 1821. Section 1920(3) permits the taxation of witness fees. These witness fees are fixed by 28 U.S.C. § 1821. Donnelly, 946 F. Supp. at 151. Section 1821 provides for an attendance fee of $40.00 per day for "actual attendance and necessary travel plus travel expenses and a daily subsistence allowance when an overnight stay is required." Id. "The long standing rule is that the 'federal statute governs.'" Templeman, 770 F.2d at 249) (quoting Henkel v. Chicago, St. Paul. Minneapolis Omaha Ry. Co., 284 U.S. 444, 448 (1932)). Additional sums paid to expert witnesses as compensation or fees for services provided in the litigation cannot be allowed or taxed as costs in federal cases. Id. at 249-50; Pizarro-de-Ramirez v. Grecomar Shipping Agency, 82 F.R.D. 327, 328 (D.P.R. 1976). However, the district court has some discretion as to taxation of costs for witnesses, id. at 250, and extraordinary expenses are allowed "when specifically approved by the court prior to trial." Id. (quoting Gradmann Holler GMBH v. Continental Lines. S.A., 679 F.2d 272, 274 (1st Cir. 1982)). Also, witness fees may be taxed for nontestifying witnesses "if the witness was ready to testify but extrinsic circumstances rendered his testimony unnecessary." Piester, at *2 (quotingNissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1553 (5th Cir. 1984)). And witnesses may be compensated for the days they are available to testify but are not required for testimony. § 1821(b); Piester, at *2; Hurtado v. United States, 410 U.S. 578. 584-85 (1973)
This expense should be disallowed except for $40.00 which is the rate for one day of Dr. Barrall's testimony. There is no information to suggest that Dr. Barrall testified for more than one day.
Deposition Transcripts
Plaintiff seeks to recover $2,583.35 for "Deposition transcript." The court will assume that plaintiff seeks its costs in the taking of several depositions including the stenographer's attendance fee, the cost of the original transcript and a copy. Where defendants noticed the deposition, the court will assume that plaintiff seeks the cost of his copy.
28 U.S.C. § 1920 (2) permits taxation as costs "Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." Such fees include the costs of deposition transcripts that are either introduced into evidence or used at trial. Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st Cir.), cert. denied, 474 U.S. 1021 (1985);Donnelly, 946 F. Supp. at 151. Even if the depositions are not introduced into evidence or used at trial, the court has the discretion to tax the costs of transcript fees if there are "special circumstances" warranting this action. Id. Special circumstances have been shown where the transcripts were necessary for purposes of cross examination of the adverse parties' witnesses. Donnelly, 946 F. Supp. at 151-52. But no special circumstances were shown with respect to the transcripts of the party's own witnesses, since they were obtained only for convenience or to be helpful to counsel. Id. at 152.
Plaintiff failed to provide any information as to whether the depositions were used at trial or introduced into evidence. Nor does plaintiff show any "special circumstances" applicable here. In short, this court has been provided no information as to what depositions were taken and how the expenses fit within § 1920. Consequently, this expense should be disallowed.
Fax
Plaintiff seeks an expense of $168.00 for "Fax" without providing any further information. The cost of a fax is similar to postage or to telephone charges which are not allowed under § 1920. See Wolf v. Planned Property Management, 735 F. Supp. 882, 883 (N.D.Ill. 1990); In re Schwinn Bicycle Co., 210 B.R. 764, 771 (Bkrtcy.N.D.Ill. 1997). Consequently, this item of costs should be disallowed.
Parking
Plaintiff seeks the sum of $115.23 for "Parking." No further information is provided. Presumably, this expense represents the parking fees of counsel when they were at court or engaged in work on this matter. Under 28 U.S.C. § 1920, travel expenses of attorneys are not recoverable. See Embotelladora Agral Regiomontana. S.A. de C.V. v. Sharp Capital. Inc., 952 F. Supp. 415, 418 (N.D.Tex. 1997) (". . . the travel expenses of attorneys are not recoverable under § 1920."); Walters v. President and Fellows of Harvard College, 692 F. Supp. 1440, 1442 (D.Mass. 1988) ("Section 1920 makes no provision for the recovery of traveling, parking or miscellaneous expenses incurred by the prevailing party's attorneys." (citing City Bank of Honolulu v. Rivera Davila, 438 F.2d 1367, 1371 (1st Cir. 1971)). Consequently, this item of costs should be disallowed.
Verdict Finder and Infomax
Plaintiff seeks a total of $277.00 for expenses in performing a database search (the object of the search is not provided) and infomax name search (Ceresi). The necessity of these expenses is totally unknown. No information has been provided to this court as to these expenses. Section 1920 does not cover such expenses and, therefore, these items of costs should be disallowed.
Consultation Fee
Plaintiff seeks the sum of $150.00 for a consultation with George Pesare. Section 1920 does not provide for recovery of a consultation fee and, therefore, this item of costs should be disallowed.
Computerized Legal Research
Plaintiff seeks recovery of $944.50 for this expense. Courts are split as to whether computer research is a cost recoverable under § 1920. The majority of courts, however, hold that computer research is not listed in § 1920 and therefore may not be taxed as a cost. See Yasui v. Maui Electric Co. Ltd., 1999 WL 1269181 (D.Hawaii 1999) ("This court agrees that computer research is not a cost recoverable under section 1920);Embotelladora Agral Regiomontana. S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. at 418 ("Research, whether conducted on a computer or in a library, is simply not a cost enumerated under section 1920."); El-Fadl v. Central Bank of Jordan, 163 F.R.D. 389, 391 (D.D.C. 1995) ("Legal research whether computer generated or manually performed by means of digests, legal texts, articles or books is still research which is more properly considered as part of an attorney's fee and not a cost. Therefore, this item will not be taxed as a cost."); Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (holding computer research is not taxable under § 1920); Haroco v. American Nat'l Bank and Trust Co. of Chicago, 38 F.3d 1429, 1440 (7th Cir. 1994) (holding that computer assisted research is included as an attorney's fee but not as a cost under § 1920); cf. Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3rd Cir. 1980) (holding that computer research is recoverable in a prevailing party's bill of costs)
In fact, the district courts within this Circuit are also split as to whether computer research is a cost recoverable under § 1920. Cf. In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. at 47 ("[t]he court finds that electronic research charges are not allowable costs. Electronic research charges are properly reflected as part of the law firm's overhead and, as such, are a factor to be included in the setting of attorneys['] fees as opposed to ordinary costs.") (citing 6 James Wm. Moore et al., Moore's Federal Practice ¶ 54.77 [8] (2d ed. 1986)); with United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 591-92 (D.R.I. 1983) ("Lexis is an essential tool of a modern, efficient law office. As such, it saves lawyers' time by increasing the efficacy of legal research. Denial of reimbursement for Lexis charges in a proper case would be an open invitation to law firms to use high-priced attorney time to perform routine research tasks that can be accomplished quicker and more economically with Lexis."); Timberland Design Inc. v. Federal Deposit Ins. Corp., 745 F. Supp. 784, 790 (D. Mass. 1990) (in accord with and quoting from United Nuclear Corp, v. Cannon, 564 F. Supp at 591-92).
As computer research is not listed in § 1920, this Court recommends that the district court follow the rule that an expense for computer research is not recoverable under § 1920. Consequently, this item of cost should be disallowed.
Filing Fee
The filing fee of $150.00 is clearly included in § 1920(1) and should be allowed.
Conclusion
I recommend that attorney and paralegal fees be awarded as follows:
Attorney Formisano
337.8 hours reduced by 82.2 hours totals 255.6 hours.
255.6 hours X $125.00 per hour totals $31,950.00.
Attorney Sinapi
62.8 hours reduced by 57.2 hours totals 5.6 hours.
5.6 hours X $150.00 per hour totals $840.00.
Paralegal Time
3.0 hours X $50.00 per hour totals $150.00.
Attorney Coleman
2.5 hours reduced in total provides for no fee.
COSTS
Photographs — $169.51. Witness Fee (Dr. Barrall) — $40.00. Filing Fee — $150.00. Total $359.51.
Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980)