Opinion
Civil Action No. 3:-91-0008
March 15, 2001
ORDER REGARDING ATTORNEYS' FEES (EDWARDS ANGELL, LLP)
Defendant E. Wayne Pittman has moved this Court for an award of attorneys' fees and expenses for its lead trial and appellate counsel, Edwards Angell, LLP, pursuant to the Copyright Act, 17 U.S.C. § 505, as against plaintiff-intervenor Drive-In Music Company, Inc. In support of his motion and supplemental motion, Mr. Pittman has provided the affidavits of Ira G. Greenberg, together with detailed billing statements, maintained in the regular course of Edwards Angell's business, showing or each service the date, the attorney or legal assistant who performed the work, the time expended to the nearest tenth of an hour (six minutes), and a description of the work performed. In addition, Mr. Pittman has provided schedules showing the hourly billing rates of the Edwards Angell personnel involved during the course of this protracted litigation. These records have been made available to Drive-In's counsel, who has also had the opportunity to take, and has taken, Mr. Greenberg's deposition. Moreover, both before and at the hearing, Mr. Greenberg voluntarily struck items that appeared to be inappropriate under the circumstances.
Having reviewed the submissions of the parties and having heard oral argument, the Court now finds as follows:
The starting point in determining an appropriate fee is the number of hours reasonably expended multiplied by a reasonable hourly rate — the so-called lodestar figure. E.g., Hensley v. Eckerhart, 461 U.S. 424 (1983); Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986); see Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
Drive-in concedes, as it must in light of the decision of the Court of Appeals on Drive-In's recent appeal, that Mr. Pittman is entitled to an award of his reasonable attorneys' tees and expenses. Opposition to Motion for Attorneys' Fees, Oct. 11, 2000, at 1 (introductory language); Opposition to Motion for Attorneys' Fees Filed on October 28, 1998 [sic], at 8. in addition, Drive-In concedes that, due to the specialized nature of the subject matter, it was appropriate to have retained lead counsel from outside South Carolina and that the reasonableness of such counsel's fees is to be tested against the hourly rates in that counsel's primary place of practice. Indeed, Drive-In itself had earlier submitted a fee application employing rates prevailing in the Los Angeles area, in which its lead counsel practices; and it sought to justify those rates by saying that Mr. Pittman's attorneys were located in New York City, in which the prevailing rates were higher. See Notice of Motion for Award of Attorneys' Fees, May 30, 1996, and supporting papers.
Upon examination, it is clear that the work performed was reasonably necessary to the maintenance of Mr. Pittman's position in the litigation. The hourly rates are reasonable for a firm and with the expertise of Edwards Angell. In that regard, the Court notes the December 13, 2000, decision of Honorable Robert W. Sweet, long a district judge in the Southern District of New York, in Yurman Designs, Inc. v. PAJ, Inc., 2000 WL 1839759 (S.D.N.Y.), upholding as reasonable in a copyright case a partner rate in excess of $520 an hour and associate rates at nearly $280 an hour. Id. at *5.
Mr. Pittman was well represented throughout by counsel who was well prepared, articulate, and dogged on his behalf. Edwards Angell's fees and expenses through trial compare favorably with those sought by Drive-In, despite the fact that Edwards Angell's billing rates are higher. Thus, with the exception of the items voluntarily deleted, the Court finds that the fees and expenses sought are appropriate and should be awarded to Mr. Pittman.
Insofar as Drive-In's objections are based on claimed duplication of effort, those objections are overruled. As Mr. Greenberg explained in his submissions and in oral argument, he and an associate, Regina Matejka, divided responsibilities under his supervision. If Mr. Greenberg had performed all of those duties himself, the fees would have been higher, because his hourly rate was considerably higher than that of Ms. Matejka. Drive-In's counsel had similarly divided responsibilities with those under his supervision in his office. Hence, he should not complain when his adversary did the same.
Claims of duplication between Edwards Angell and Gertz Moore, Mr. Pittman's South Carolina counsel, are likewise rejected. The two firms coordinated their efforts after Edwards Angell's retention so as to minimize Mr. Pittman's expense. In fact, although the rules of this Court require local counsel to be present for trial — and Mr. Pittman could therefore have had two lawyers present for the entire trial of this action — they asked the Court's permission to excuse local counsel in the interest of economy.
Likewise, the limited number of communications with officials of Artists Rights Enforcement Corporation were reasonable and appropriate. As Mr. Greenberg explained, the principals of that corporation acted as Mr. Pittman's representative and as investigators in assisting his attorneys in developing the case factually. If the attorneys had done such work themselves, there would only have been greater fees and expenses for which recompense is now being sought.
The Court also rejects the assertion that the remaining time charges are attributable to the Killette-Pittman dispute alone. As Mr. Greenberg explained, many of the issues involving the Killettes and involving Drive-In overlapped; and he removed time entries, such as those pertaining to the motion to vacate under Fed.R.Civ.P. 60(b), attributable solely to Mr. Pittman's dispute with the Killettes.
Finally, Drive-In announced at the hearing on this application that it believed that Mr. Pittman had waived all of the fees attributable to the appeals by virtue or not having made fee applications to the Court of Appeals as part of the bill of costs on appeal. That assertion is inconsistent with the Court's years of experience on the bench and is also rejected.
The case law makes clear that there was no waiver, as Mr. Pittman hardly knowingly gave up a right to such fees. Thus, for example, inEngel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir. 1984), the Court of Appeals for the Fifth Circuit addressed and rejected the argument that one party had "waived its right to a fee award by failing to raise this issue" before the Court of Appeals' mandate issued. Id. at 1240. Engel held that, upon reversal and remand for the entry of judgment consistent with the Court of Appeals' decision,
the district court is not limited to taking only those actions explicitly directed in our judgment and no others. Rather, the district court is obliged to carry out the instructions we have given, and should then be presumed to be free to take any other consistent actions. The district court is not preempted from acting on a matter neither raised before nor acted upon by this court. . . .
Awarding attorneys' fees to the defendant is not inconsistent with our instruction to enter judgment for the defendant; to the contrary the two actions are consistent.Id. at 1241.
The outcome is the same if viewed in terms of whether attorneys' fees are to be deemed costs. The general rule is that attorneys' fees are not taxable as costs on appeal. See 20A Moore's Federal Practice § 339.41, at 339-10 to — 11 (3d ed. 2000).
Moreover, 4th Cir.R. 39(c) provides that "[t]he only costs generally taxable in the Court of Appeals are (1) the docketing fee if the case is reversed; and (2) the cost of printing or reproducing briefs and appendices, including exhibits." The rule goes on to say that certain other listed costs of the appeal, even though recoverable, "must be settled at the district court level" and that the Court of Appeals will disallow requests for these costs "without prejudice to the right to reapply for them in the district court."
Particularly instructive is the decision of the Court of Appeals for the Third Circuit in McDonald v. McCarthy, 966 F.2d 112 (3d Cir. 1992) (addressing analogous questions under 42 U.S.C. § 1988), which reviews the law relating to the interrelation of costs and. attorneys' fees on appeal. McDonald establishes that the great weight of "authority favors the holding reached here — that costs and attorneys" fees are completely separate matters under fee shifting statutes like the Copyright Act. Id. at 116-18. Moreover, the McDonald court assumed that it was for the district court to determine the fees to be recovered. See also, e.g., United Pac. Ins. Co. v. Idaho First Nat'l Bank, 378 F.2d 62, 69 (9th Cir. 1967) (awarding costs but remanding motions for attorneys' fees on the appeal to trial court). The Court of Appeals for the Sixth Circuit stated the rule of law succinctly in Shinman v. Operating Eng'rs, Local 18, 719 F.2d 879, 880 (6th Cir. 1983), vacated on other grounds, 744 F.2d 963 (6th Cir. 1984), cert. denied, 469 U.S. 1215 (1985):
The appellant argues that only the Court of Appeals can make an award of attorneys' fees for services rendered in that court. . . . [D]istrict courts are ordinarily the preferable forum to determine attorneys' fees for services rendered on appeal because of their superior access to fact-finding procedures. . . . [A]ppellant's contention in this regard is without merit.
Cases on which Drive-In relies for a contrary result are inapposite. Thus, Roth v. Pritikin, 787 F.2d 54, 58 (2d Cir. 1986), cited in Drive-In's letter to the Clerk of this Court, involves dictum to the effect that the court determining a proceeding — be it a trial or appeal — should determine whether that proceeding is frivolous for purpose of Whether a fee award is proper as a result. Roth says nothing at all about the court in which a fee application must be made, and there is no contention here that any proceeding was frivolous.
The predicate in this case for an award of fees is the party's having prevailed. Drive-In has conceded that Mr. Pittman prevailed, as it must, since the Court of Appeals itself has so held. Killette v. Pittman, Nos. 98-2666, -2724, slip op. at 9 n. 7. (4th Cir. Apr. 20, 2000).
The one item claimed by Edwards Angell that the Court declines to award relates to the fees and disbursements in connection with the second appeal to the Fourth Circuit, a sum of $19,790.33. Because Mr. Pittman unsuccessfully cross-appealed from this Court's judgment, it cannot be said that he was the prevailing party in the Court of Appeals.
Mr. Pittman made claim to $243,975.99 on account of Edwards Angell's fees and $19,973.15 on account of that firm's disbursements, or $263,949.14 in all. Subtracting the $19,790.33 from that figure, it is hereby ORDERED that E. Wayne Pittman recover of Drive-In Music Company, Inc. the total amount of $244,158.81 on account of Edwards Angell's fees and disbursements.