Opinion
CV-00-1075-ST.
October 23, 2001
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, Jose Luis Ochoa ("Ochoa"), filed this action on August 4, 2000, against defendants Accelerated Benefits Corporation ("ABC") and C. Keith LaMonda ("LaMonda"). ABC is in the business of identifying, qualifying, and purchasing the beneficial interest in life insurance policies and related death benefits of the terminally ill ("viaticals") for the purpose of matching the viaticals to investors, such as Ochoa.
The Amended Complaint, filed on August 8, 2000, alleges four claims against ABC for breach of contract, money had and received, breach of fiduciary duty and violation of Oregon Unlawful Trade Practices Act, ORS 646.605-652 ("UTPA") and two claims against LaMonda for breach of contract and violation of the UTPA. All claims arise out of defendants' purchase of several viaticals for Ochoa in 1997.
Ochoa filed a motion for summary judgment against both defendants which was granted in part and denied in part. Accordingly, on August 20, 2001, this court entered a Judgment in favor of Ochoa and (1) against LaMonda on the breach of contract claim (Fifth Claim for Relief) in the sum of $213,599.15 with interest thereon at the rate of 12% per annum, together with his costs incurred herein and (2) against ABC on the breach of contract claim (First Claim for Relief) in the sum of $76,849.15 with interest thereon at the rate of 10% per annum for the years 1997 through 2000 and 11% per annum for the year 2001, together with his reasonable attorney fees and costs incurred herein.
Ochoa has now filed a Motion for Attorney Fees Pursuant to FRCP 54(d) and Costs (docket #51) and a Bill of Costs (docket #50). He seeks to recover attorney fees of $43,518.00 against ABC only, including $480.00 and $3,043.00 awarded jointly and severally by the court on his discovery motions (dockets #14 #30), and costs of $4,093.00 jointly and severally against both defendants.
I. ATTORNEY FEE REQUEST
Although defendants have filed no objection to Ochoa's motion for attorney fees, "the district court [is] required to independently review plaintiffs' fee request even absent defense objection." Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir 1993); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385, n 3 (9th Cir 1984). The court must determine if plaintiff's fee request is reasonable and "does not abuse its discretion simply by reducing the amount of an unsupported fee award." N.A.A.C.P. v. City of Evergreen, Ala., 812 F.2d 1332, 1334 (11th Cir 1987). Uncontradicted evidence may be rejected if there is a reason for doing so. Id.
The calculation of attorney fee awards begins with the lodestar figure, "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir 1987), quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). There is a strong presumption that the lodestar amount is reasonable. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir 1987).
The court may adjust the lodestar amount based on the factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir 1975), cert denied, 425 U.S. 951 (1976). D'Emanuele v. Montgomery Ward Co. Inc., 904 F.2d 1379, 1383 (9th Cir 1990). The Kerr factors are: (1) time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee was fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the clients; and (12) awards in similar cases. Kerr, 526 F.2d at 70.
To support its fee request, Ochoa has submitted his statement for legal services rendered by his attorneys from November 24, 1999, through August 24, 2001 and a Supplemental Affidavit of Michael G. Halligan, the lead trial counsel, setting forth the supporting information. The statement adequately describes the services rendered by date, type of service, and hours, and Mr. Halligan substantiates that the hourly rates for each timekeeper, ranging from $60.00-$90.00 per hour for paralegals, $150.00-$160.00 per hour for an associate, and $200.00-$230.00 per hour for partners, are within the range of reasonable and customary rates charged by comparable litigation attorneys in the Portland area. Although the rates for the partners are on the high end of the range, they are not inherently unreasonable.
With respect to the number of hours, the itemization of the services contains no obvious duplication of services or excessive number of conferences. Conferences are billed at a 50% rate for each participant and many services are designated as a "no charge." Although the total number of hours seems somewhat high for a case in which the defendants mounted no substantial defense, many of the hours were spent on obtaining information from the Florida Insurance Commissioner and the various insurance companies, researching Florida law, and attempting to settle the claims.
However, the hours also include substantial time to draft and file an unsuccessful motion for summary judgment on the breach of fiduciary duty and UTPA claims. Where a plaintiff attains only partial success, the trial court must apply a two-part analysis. First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff's successful claims. If unrelated, the final fee award may not include time expended on the unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983). Related claims will involve "a common core of facts" or will be based on related legal theories, while unrelated claims will be "distinctly different," and based on different facts and legal theories. Id; Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir 1986). If the unsuccessful and successful claims are related, then the court must apply the second part of the analysis, in which the court evaluates the "significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id at 435. If the plaintiff obtained "excellent results," full compensation may be appropriate, but if only "partial or limited success" was obtained, full compensation may be excessive. Id.
Here, the unsuccessful claims clearly are related to the successful breach of contract claims because they are premised on the same failure by defendants to pay Ochoa the amounts due on the viaticals he purchased. Thus, the court must evaluate the extent of Ochoa's success. In that regard, he achieved excellent results, such that full compensation would not be excessive. Thus, this court recommends that Ochoa's attorney fee request be granted in full.
II. COSTS
Expenses which may be taxed as costs against the losing part are enumerated in 28 U.S.C. § 1920 as follows:
(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 the 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.
Although a district court has broad discretionary power to allow or disallow a prevailing party to recoup the costs of litigation, the court may not tax costs beyond those authorized by 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Courts are, however, free to construe the meaning and scope of the items enumerated as taxable costs in § 1920. Aflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir 1990) (per curiam), cert denied, 502 U.S. 812 (1991).
Ochoa has submitted a Bill of Costs for $4,093.00, consisting of $150.00 for filing fees, $563.00 for service fees, $956.50 for copying charges, $330.00 for witness fees, and $2,093.50 for process service costs for service of subpoenas on witnesses. Although this amount is unusually high, Mr. Halligan provides a sufficient explanation for most of it. Ochoa was required to serve ABC in both Florida and Texas on a rush basis due to other legal and administrative actions pending against ABC and the process service costs included nine subpoenas on six different insurance companies in five states.
The photocopy charge of $956.50 is based $.30 per page for 4,774 copies obtained and assimilated from 10 to 12 different sources for review and analysis and for use at several hearings. Under 28 U.S.C. § 1920(4), costs may be recovered only for "copies of papers necessarily obtained for use in the case." Copying costs for documents produced to plaintiff in discovery, submitted to the court for consideration of motions, and used as exhibits at trial are recoverable. See Fressell v. ATT Technologies, Inc., 103 FRD 111, 115-116 (N.D. Ga 1984). However, recoverable copying costs do not include extra copies of filed papers, correspondence, and copies of cases since these are prepared for the convenience of the attorneys. Id. Mr. Halligan states that he cannot ascertain how many were made solely for Ochoa's and his attorneys' convenience, but believes that the "vast majority" were necessarily obtained for use in this case. However, a party's conclusory assertion that all copies were reasonably necessary to its case is, by itself, insufficient. See Goluba v. Brunswick Corp., Mercury Marine Div., 139 FRD 652, 656 (E.D. Wis 1991). Because Ochoa's attorneys cannot distinguish between recoverable and nonrecoverable photocopying charges, it would be fruitless to grant Ochoa leave to file an amended Bill of Costs. Thus, this court is required to reduce photocopying cost accordingly. See Cappeletti Bros., Inc. v. Broward County, 754 F. Supp. 197, 198 (S.D. Fla 1991) (disallowing all copying costs not properly substantiated). Interpreting "vast majority" to be more than 50% but less than 100%, this court recommends awarding Ochoa 75% of his photocopy costs, which reduces the amount from $956.50 to $717.38.
RECOMMENDATIONS
For the reasons set forth above, plaintiff's Motion for Attorney Fees Pursuant to FRCP 54(d) and Costs (docket #51) should be GRANTED in the sum of $43,518.00 and the Bill of Costs (docket #50) should be GRANTED in the sum of $3,853.88.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due November 9, 2001. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due no later than November 27, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.