Opinion
NO. 1:98-CV-0783-WBH
July 5, 2001
Michael Joesph Ernst, Kevin Ross Wolff, Sotkes Lazarus Carmichael Atlanta, GA, Jay G. Davis, Cynthia Lynae Weese, Bryant Davis Cowden, Atlanta, GA, Charles Emmett Wheelock, Conoscienti Storm Kendall, Decatur, GA, attorneys for plaintiff.
Gene Mac Winburn, Winburn Lewis Barrow, Athens, GA, Jay G. Davis, Cynthia Lynae Weese, Bryant Davis Cowden, Atlanta, GA, James Randolph Schulz, Office of United States Attorney, Atlanta, GA, Michael N. Wilcove, U.S. Department of Justice, Ben Franklin Station, Washington, DC, Thomas T. Tate, Jonathan Dean Crumly, Andersen Davidson Tate, Lawrenceville, GA, attorneys for defendants.
ORDER
Before the Court is Primerica Life Insurance Company's Motion for Attorney's Fees and Expenses of Litigation [52] and the Government's objections thereto [53]. Primerica's mcition is filed pursuant to a Consent Order [46], approved by this Court on August 28, 2000, providing for the disbursement of funds at issue in this case and for the filing of a motion for attorney's fees and expenses by Primerica. Counsel for Primerica, Thomas T. Tate, is requesting $18,200.74 in attorney's fees and $436.01 in costs. among the objections voiced by the Government are that Primerica's motion for fees was filed out of time, that the requested fees are excessive, and that deposit of the interpleaded funds into the court's registry is a prerequisite to awarding attorney's fees.
I. FEES
When awarding attorney's fees, the burden is on the fee applicant to show that the hourly rates are reasonable and to justify the number of hours for which compensation is sought. Brooks v. Ga. State Bd. of Elections, 997 F.2d 857 (11th Cir. 1993); ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999). Hourly fees billed during the three-year period of this dispute ranged from $65 for a paralegal's time up to $220 for Mr. Tate's time. Counsel has provided an affidavit which the Court finds sufficient to establish the reasonableness of the rates charged.
The Government objects to the awarding of fees in this case because a prerequisite to any such award is the deposit of the interpleaded funds into the court's registry. As noted in this Court's order dated 8/02/00, ". . . on November 24, 1997, the government, along with the other parties in this action, entered into a Consent Order which determined that the interpleaded funds would be held by Primerica, the disinterested stakeholder, instead of being deposited into the Registry of the Court." Primerica's failure to deposit the funds cannot now be used as an excuse to deny the awarding of fees.
The parties in this case entered into an agreement on 8/29/00 providing for disbursement of the interpleaded funds, and Mr. Tate stated in a lefter to all counsel dated 9/29/00 that his motion for fees was prepared and "ready to file." However, the motion was not filed until 2/05/01. At the Court's request, Mr. Tate filed a supplemental brief in support of his motion explaining this four-month delay. While the Court is sympathetic to the reasons for the delay, it cannot justify awarding fees for time spent essentially "negotiating" the fee petition. Equifax v. Luster, 463 F. Supp. 352, 357 (E.D. Ark. 1978), aff'd sub nom, Arkansas Louisiana Gas Co. v Luster, 604 F.2d 31 (8th Cir. 1979). The crux of this suit, the division and disbursement of the interpleaded funds, was finally resolved by the consent agreement dated 8/29/00. At that point, the only matter left for the Court's consideration was the attorney's fees. Mr. Tate offered that his motion was complete and ready to file on 9/29/00; therefore, the Court declines to award any fees for time billed after that date.
Additionally, the Court notes that in Mr. Tate's 9/29/00 letter, he offered to accept $15,350.97, representing all fees and expenses in this case. Based on the facts of this case, a review of counsel's billing statements and the Government's objections thereto, the Court awards counsel $15,350.97 in fees.
II. EXPENSES
After reviewing the thirty-seven statements attached in support of the fee petition, noting that counsel did not provide an accounting of his figures, the Court is at a loss to determine how Mr. Tate arrived at $436.01 for costs. According to the Court's accounting, expenses reflected on the statements total $1,750.33. Deducting from that figure the amounts which are not recoverable costs: Westlaw fees ($928.92), Federal Express fees ($52.79) and courier fees ($527.11), we are left with $241.51. Unfortunately, counsel does not provide enough information to support the awarding of even this amount. An entry for $8.80 for photocopies or $9.22 for postage is not sufficient without further explanation. Such entries need to reflect dates, the document that was copied, and what was mailed and to whom. Likewise, for long distance charges, all that is offered is an amount and no description. It is well settled that without sufficient information to determine what constitutes a properly recoverable cost, the Court may, in its discretion, disallow such items. Fulton Fed. Savings Loan Assoc. of Atlanta v. American Ins. Co., 143 F.R.D. 292, 300 (ND Ga. 1991) (explaining that the "party seeking to recover photocopy costs must come forward with evidence showing the nature of the documents copied including how they were used; without appropriate record evidence, the court may disallow such costs").
Based on the figure counsel presents for expenses with no explanation, the Court does not believe these fees are part of that request. However, this Court is aware that there are differing opinions on whether this is an expense item that is recompensable. The cost of computer assisted legal research (CALR) is part of the total cost of an attorney's services along with other overhead costs such as office space. There are several entries in counsel's billing statements for research billed at an hourly rate; therefore, this Court is of the opinion that the hourly rates set by counsel take into account such expenses as the cost of a CALR service.
While couriers and services such as Federal Express seem to have become the preferred method of delivery among law firms, the U.S. Postal Service remains a viable alternative. Except in unusual circumstances, this Court considers the use of rapid delivery services to be employed for the convenience of counsel and not a properly recoverable expense.
For the reasons noted above, the Court reduces the fee award to $15,350.97 and declines to award any ancillary amount for expenses.