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reducing attorney fees by half due to block billing and excessive hours
Summary of this case from Neil v. Commissioner Social SecurityOpinion
CV-00-1089-ST
October 2, 2002
OPINION AND ORDER
INTRODUCTION
On August 7, 2000, plaintiffs, Ronald E. Taylor, both individually and as Trustee under the Declaration of Trust dated May 10, 1993, Edwina Wasson (Taylor's wife), and Renaissance Group LLC ("Renaissance"), filed this action against Albina Community Bank ("Albina") arising from Albina's refusal to fund a loan. After a court trial on the equitable claims and immediately prior to a jury trial on the legal claims, the parties settled their dispute. As part of that settlement, the parties agreed that Albina could file a motion to recover its attorney fees and costs.
Another defendant, Richard T. Anderson, Jr., was dismissed by plaintiffs on September 11, 2000.
Accordingly, Albina has filed a Motion for Award of Attorney Fees (docket #155) seeking fees of $219,626.05 and expenses of $16,727.34 and a Bill of Costs (docket #156) in the sum of $5,057.00. Plaintiffs have filed objections to both. For the reasons set forth below, the Motion for Award of Attorney Fees is granted in the reduced amount of $115,573.31 and the Bill of Costs is granted in full.
Although Albina did not provide a total for either its attorney fees or costs, plaintiffs did. However plaintiffs' total for the costs is $16,659.72, which appears to be a miscalculation.
PROCEDURAL HISTORY
Plaintiffs alleged claims against Albina for breach of contract (First Claim for Relief), Misrepresentation (Second Claim for Relief), violation of the Equal Credit Opportunity Act (Third Claim for Relief), and for an injunction to prevent a foreclosure sale of plaintiffs' property (Fourth Claim for Relief).
On August 9, 2000, plaintiffs sent a letter advising the court that the foreclosure sale of their property had been canceled and that they were withdrawing their request for a temporary restraining order.
Albina filed an Answer, Counterclaim, and Third-Party Complaint alleging a counterclaim for foreclosure against plaintiffs' property and an identical cross-claim against Royal Tobacco, LLC, Stellar Coffee, LLC, and the City of Portland, Oregon, acting by and through the Portland Development Commission ("PDC").
By Order dated November 23, 2001, this court granted Albina's Motion for Summary Judgment against: (1) plaintiffs' Third Claim; (2) plaintiffs' First and Second Claims to the extent they are based either on Albina's failure to reappraise plaintiffs' property after construction or breach of the implied covenant of good faith and fair dealing; and (3) PDC's affirmative defenses with respect to PDC's $77,500 loan secured by a second trust deed. Although dismissal of the Third Claim eliminated the basis for federal question jurisdiction under 28 U.S.C. § 1331, this court retained supplemental jurisdiction under 28 U.S.C. § 1367.
As this court has subsequently acknowledged, it erred by dismissing PDC's promissory estoppel defense on summary judgment. Findings of Fact and Conclusions of Law, p. 28.
A jury trial on plaintiffs' First and Second Claims and a simultaneous court trial on the remaining claims and defenses was set to commence on March 5, 2002. On March 4, 2002, the day before trial, plaintiffs advised the court that they were withdrawing their First and Second Claims and the jury was dismissed. However, on the day of trial, plaintiffs rescinded their withdrawal of the First and Second Claims. With the agreement of the parties, the jury trial on those claims was reset to a later date, and trial proceeded to the court on the remaining claims and defenses on March 6 and 7, 2002.
On March 28, 2002, based on the evidence presented at that court trial, this court issued Findings of Fact and Conclusions of Law awarding judgment to Albina on its Counterclaim and Third Party Complaint for foreclosure and dismissing plaintiffs' Fourth Claim for Injunctive Relief and affirmative defenses to foreclosure, as well as PDC's affirmative defenses to foreclosure. Albina then filed a Motion for Judgment as a Matter of Law against plaintiffs' remaining claims and an Alternative Motion for Judgment under FRCP 54(b) on the foreclosure counterclaim. In addition, plaintiffs filed a Motion for Reconsideration of this courts' Findings of Fact and Conclusions of Law. This court concluded that Albina was entitled to dismissal of plaintiffs' misrepresentation claim, but that plaintiffs were entitled to a jury trial on their breach of contract claim. As a result, the Findings of Fact and Conclusions of Law were vacated pending the jury trial.
On July 9, 2001, the date set for the jury trial, the parties reached a settlement and agreed to a Stipulated Order which was entered on August 6, 2002. That Order entitles Albina to enter a judgment of foreclosure of its Deed of Trust on the property against Renaissance and PDC if plaintiffs do not pay the settlement amount prior to October 10, 2002. The Order also states that the judgment of foreclosure shall include Albina's costs and reasonable attorney fees to be set by this court in an amount determined by FRCP 54(d) and LR 54. Pursuant to the promissory note, construction loan agreement and line of credit, Renaissance is obligated to pay Albina's reasonable attorney fees and expenses, as well as court costs.
DISCUSSION I. Attorney Fees A. Legal Standard
The calculation of a reasonable attorney fees award 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).
In calculating the lodestar, the court must consider those factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir 1975), cert denied, 425 U.S. 951 (1976), which have now been subsumed within the initial calculation. Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir 1988), cert denied, 493 U.S. 1035 (1990). Subsumed factors include: (1) novelty and complexity of the issues; (2) special skill and experience of counsel; (3) quality of the representation; (4) the results obtained; and (5) the superior performance of counsel. After calculating the lodestar, the fee may be adjusted by any nonsubsumed factors identified in Kerr.
A "rote recitation of the relevant factors is unnecessary" so long as the district court adequately explains the basis for the award. O'Neal v. City of Seattle, 66 F.3d 1064, 1069, n5 (9th Cir 1995). The Kerr factors are:
(1) the novelty and difficulty of the questions involved;
(2) the skill requisite to perform the legal service properly;
(3) the preclusion of other employment by the attorney due to acceptance of the case;
(4) the customary fee;
(5) the time limitations imposed by the client or the circumstances;
(6) the amount involved and the results obtained;
(7) the experience, reputation, and ability of the attorneys;
(8) the nature and length of the professional relationship with the client;
(9) the time and labor required;
(10) similar awards in similar cases.
In City of Burlington v. Dague, 505 U.S. 557 (1992), "[t]he Supreme Court . . . cast doubt on the relevance of" whether the fee was fixed or contingent and the undesirability of the case. Griffeth v. Sheet Metal Workers' Local Unions Councils Pension Plans, 34 F. Supp.2d 1170, 1174 n3 (D Ariz 1998).
In addition to addressing specific objections, the court has an independent duty to scrutinize a fee request to determine its reasonableness. Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir 1992); see also Poole ex rel Elliott v. Textron, Inc., 192 F.R.D. 494, 508 (D Md 2000) (because the award must be reasonable, it is incumbent on the district court to subject the request to an independent review to "insure that the time expended . . . was not excessive to the task and [to consider] the hourly rate charged in light of fees charged in the legal community for services of like kind and quality").
B. Hourly Rates
To support its fee request, Albina has submitted an affidavit by James M. Finn, one of Albina's attorneys, attesting that the attached bills were "generated by [his] law firm for attorney fees and costs expended on behalf of Albina on this matter." These bills cover the time period from October 9, 2000, through July 19, 2002, and show the number of hours by date for particular tasks expended by each timekeeper (shareholders, associates, project assistants, paralegals, and a librarian). Albina seeks differently hourly rates for different timekeepers. Those hourly rates are $210-240 for shareholders, $115-160 for associates, $90-120 for paralegals, $60-80 for project assistants, and $85 for the librarian.
Albina has submitted nothing to substantiate the hourly rates of the various timekeepers. However, plaintiffs have not objected to specific hourly rates. Instead they contend that Albina's total attorney fees request is not supported by the requisite affidavit, is unreasonable under the circumstances of this case, and is "overkill," given that the amount is approximately three times more than the amount charged plaintiffs by their attorney.
Given the nature of plaintiffs' objection, this court will not analyze the propriety of various hourly rates. Besides, based on the most recent Oregon State Bar Economic Survey, these rates are not facially unreasonable, although it seems a questionable practice to charge an hourly rate for project assistants and a librarian. Instead, this court will adjudge the reasonableness of Albina's request in terms of whether the time expended was excessive to the task.
C. Number of Hours
Plaintiffs have not taken any position on what should be a reasonable amount of attorney fees and have not specifically identified any work, hours or charges that should not be paid. Instead, they assert that the time entries in the billings of Albina's attorneys inappropriately bundle services and are often non-descriptive, making it difficult to determine how much actual work on this case was necessary. This leaves the court in the difficult position of trying to ascertain on its own whether the number of hours expended by plaintiff's attorneys are reasonable.
Plaintiffs do correctly note that the bills often fail to separate time for individual tasks by using "block billing" entries. See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554 n 15 (10th Cir), cert denied, 519 U.S. 928 (1996) ("block billing" refers to "the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks"). When the time spent on the task is not segregated from time spent on other tasks, the court is hindered from assessing the reasonable number of hours spent on a given task. Several decisions by this court have decried the lack of detail in attorney fee petitions, resulting in an announcement in THE COURTHOUSE NEWS dated October 31, 2001, that fee petitions that include inadequate detail or that fail to separate time for individual tasks may be denied, at least in part. In particular, any block billing of three or more hours and containing four or more tasks (or two tasks, if one could have been either insubstantial or significant) prevents the court from determining the reasonableness of the hours spent on a specific task. However, discrete but related tasks are compensable. Oberdorfer v. Glickman, 2001 U.S. Dist LEXIS 14677 (D Or September 14, 2001).
A review of Albina's billings indicate that the tasks contained in the block billings of three or more hours generally are related, such that the failure to segregate tasks is not fatal. However, the billings also reveal unnecessary duplication of tasks among timekeepers, as well as excessive time. Duplication of time must be excluded from any fee award:
Counsel for the prevailing party shall make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."
Hensley v. Eckerhart, 461 U.S. 424, 434 (1985) (citation omitted).
Despite the plaintiffs' lack of specific objections, it is clear that Albina's attorneys made no such effort to exclude redundant hours. In its detailed review of only a portion of the 2001 billings, this court has found numerous examples of duplication.
An example of duplicated effort are conferences between timekeepers. When attorneys hold a telephone or personal conference with another attorney or paralegal, good "billing judgment" mandates that only one participant in the conference should bill that conference to the client. Yet both James Finn and Kelly Roberts often, although not always, charged for their conferences with each other. E.g. March 20 (1.0 hour), May 30 (.3 hour), August 27 (.2 hour), and January 16 (2.5 hours). In addition, Mark LeCoq charged for reading Mr. Finn's report to him about the depositions on July 11 (.2 hour) and Mr. Finn charged for reading e-mails from Mark LeCoq. E.g., May 9 (some portion of .5 hour), May 16, (some portion of .5 hour), July 31 (some portion of .4 hour), and September 25 (.3 hour), October 11 (.2 hour), October 21 (.2 hour), October 26 (some portion of 2.0 hours), and November 2 (some portion of .3 hour). Reading an e-mail is simply another method of holding a conference.
Other examples of duplication are charges by Mr. LeCoq for assisting Mr. Finn on March 2 to prepare for depositions taken by Mr. Finn (2.7 hours) and for assisting Mr. Finn on May 17 to prepare for a routine status conference with the court (some portion of .9 hour), for which Mr. Finn also charged time to confer with Mr. LeCoq. In addition, on March 6 and 7, Craig G. Russillo created a deposition outline (2.5 hours) and on March 14, assisted Mr. Finn preparing for a deposition (.3 hour).
In addition, many hours are clearly excessive. For example, a paralegal who charged $90-$95 per hour spent at least 15 hours organizing documents, putting them back in order, arranging a room to view documents, arranging for copying of documents, assisting an attorney's secretary, and ordering deposition transcripts. An associate charged for filing the summary judgment motion at a cost of $150 per hour. These tasks could and should be performed by clerical staff, not by a paralegal who charges an hourly rate equivalent to many attorneys and certainly not by an attorney.
Another example is the time taken to summarize depositions. Although the first deposition of Ron Taylor took 8 hours, the time spent by a paralegal to summarize his deposition took over 9 hours, which is about four times longer than necessary. The summary of the second deposition of Ron Taylor took 6.6 hours, almost as long as the 7.5 hour deposition. Although the depositions of Vicki Rodriquez and Wally Zwingli took only a couple of hours at most, the summaries took about 10 hours. James Taylor's deposition lasted less than 8 hours, but the summary required over 7 hours.
Given the block billing, this court cannot ascertain a precise number of hours spent on legal research for drafting and arguing the summary judgment motion. However, as best as this court can discern, the total is well over 175 hours by six different timekeepers: approximately 77.1 hours by Mr. LeCoq (Shareholder, $225/$240 per hour), some part of 7.9 hours by Mr. Finn (Shareholder, $250 per hour), 36.6 hours by Mr. Russillo (Associate, $145/160 per hour), 36.11 hours by Mr. Madden (Associate, $140 per hour), 9.43 hours by Mr. Parker (Associate, $140/$160 per hour), and 15.4 hours by Kelly Roberts (Paralegal, $90/$95 per hour). At only the minimum hourly rates indicated, the cost totals over $30,000. By any standard, this is far more time and expense, in fact well more than double the time and expense, than should have been necessary.
A party is certainly free to pay its lawyers whatever it wishes, but cannot expect to shift the cost of any redundancies and excesses to its opponent. Instead it can only shift the reasonable attorney fee expended. This court is particularly suspect of excessive time in this case since Albina lacked any incentive to minimize attorney fees. As the lender, Albina anticipated that upon foreclosure, it would shift all of its attorney fees to the borrower pursuant to the attorney fee provisions in the loan documents. Although some of the time entries refer to "work on budget," Albina has presented no evidence that it attempted in any way to contain the amount of fees charged. Had Albina been concerned about the amount of mounting attorney fees, it surely would have questioned many of the billing entries and/or set a maximum on the total fees in proportion to the amount at issue. Litigation is expensive, but the losing party is required to pay only a reasonable amount of attorney fees, not the actual amount incurred by the prevailing party who makes no or a minimal effort to contain costs. Contrary to Albina's contention, this case was not extremely difficult. Although it involved several failed settlement attempts, convoluted legal theories, longer depositions than necessary, and discovery issues, those circumstances do not justify the inordinate number of hours sought.
If this court had the luxury of unlimited time, it could spend days carefully reviewing each and every time entry in order to calculate a reduction in the attorney fee request by date, timekeeper, and amount. Such an extensive review could not be precise, however, given the block billing entries and the necessarily subjective determination of which specific hours should be excluded. Based on the detailed review which it has already undertaken of many of the billing entries, this court easily concludes that the number of hours requested are at least double, and perhaps closer to triple, the reasonable number of hours that should have been expended in this case. Erring on the cautious side, however, given the lack of specific objections by plaintiffs, this court reduces the total attorney fee award, excluding costs, by one-half to the sum of $110,000.
D. Expenses
As part of its attorney fees, Albina also seeks reimbursement for a number of expenses. Conceding that such expenses may not be properly recoverable as part of the Bill of Costs, Albina argues that they are recoverable under its attorney fee provisions in the loan documents. But even under the loan documents, such recoverable expenses must still be reasonable.
In order to ascertain which expenses are reasonable, this court turns by analogy to 42 U.S.C. § 1988 which permits a court to award out-of-pocket expenses. Although not normally taxable as costs, out-of-pocket expenses may be recovered as part of an attorney fee award if they represent costs normally charged to the client. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216, n 7 (1986), amended on denial of reh'g, 808 F.2d 1373 (9th Cir 1987), citing Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C. Cir 1984), cert denied, 472 U.S. 1021 (1985); Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir 1994).
The out-of-pocket costs requested by Albina include postage, photocopies, mileage and parking, computer research, outgoing telefax charges, bindery, shipping charges, service fees, recording fee, document production charges, telephone charges, meals, misc., delivery charges, mediation fee, expert witness fee, and transcription fee. Mr. Finn's affidavit does not recite that these costs are normally charged to a fee paying client, but these costs do appear on the billings to Albina, creating the inference that they are normally charged to a fee paying client. But that fact alone does not prove that the costs were necessarily incurred or reasonable in amount.
Although photocopying costs are generally recoverable, here Albina seeks to recover the sum of $7,048.23 for photocopies. Albina explains that this charge is based upon the number of copies made and recorded and charged to the client at $0.15-.20 per page, depending on the quantity of copies, and that the pleadings and file in this case were extremely large with two trials. Even at $0.20 per page, a charge of $7,048.23 represents 35,241 pages, which is inherently unreasonable for this case. The number of pleadings and exhibits used in this case cannot come close to justifying that number of copies. Despite plaintiffs' objection, Albina has made no effort to reduce this charge. Therefore, it is disallowed.
The charge of $1,085.70 for outgoing telefaxes also is unwarranted. Albina explains that this charge is based upon $0.70 per page, which is the attorneys' charge to clients for sending faxes. At a charge of $0.70 per page, this represents 1,551 telefax pages. Because all of the parties in this case were local, this number of pages is excessive. Furthermore, information and documents could easily have been mailed or e-mailed for a fraction of this telefax charge. Similarly, there was no need for any Federal Express shipping charges, let alone $214.78. Accordingly, the telefax and shipping charges are disallowed.
The charge for document production of $2,142.32 is curious. Albina claims that this is the charge for time expended on the creation of documents in this case. However, any such time should be subsumed in the hours charged for the attorney fees. As a result, the document production charge is disallowed.
Albina also seeks $67.30 for meals purchased for lunch meetings during the trial. Why plaintiffs should be expected to pay for these particular meals is neither explained nor evident. Thus, this charge is disallowed.
Albina also seeks the sum of $548.70 for delivery charges, claiming that delivering documents is sometimes necessary and the most effective means of delivering documents. That may be true, but does not explain why delivery was necessary and reasonable in this case. If plaintiffs had requested personal delivery, as opposed to delivery by mail, then they should pay for that charge. But if personal delivery was necessitated by Albina's delay, requiring plaintiffs to pay that charge is unreasonable.
Because Albina has not drawn that distinction, this charge is disallowed. Plaintiffs also object to $20 for "misc." and $27 for a "transcription fee." Because Albina has not responded to those objections, these charges are disallowed.
Plaintiffs also object to the charge for computer research of $2,768.79. However, computer research is a cost effective method of reducing the amount of attorney time required to perform legal research. Furthermore, Albina has explained that the computer research charge is based on a negotiated agreement with Lexis. Thus, this charge is reasonable.
Finally, plaintiffs object to the expert witness fee of $1,765.50 because the settlement obviated the need for any expert testimony. There is some authority for denying recovery of non-testifying expert fees as part of an attorney fee award. In West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), the Court held that statutes allowing for the award of a reasonable attorneys' fee do not, by virtue of that authorization alone, provide for the compensation of expert witness expenses. The Court reasoned that because Congress has frequently drafted statutes explicitly authorizing the award of both attorneys' and expert witness fees, a statute which authorizes only the grant of attorneys' fees connotes a Congressional intent that expert costs not be shifted.
Here the various loan documents signed by plaintiffs allow recovery of attorney fees and expenses, but do not specifically mention expert witness fees, similar to the Title VII statute at issue in Casey. However, unlike Casey, there is no evidence that Albina had any intent not to shift expert costs. Instead, Albina's intent clearly expressed in its loan documents is to shift every single possible cost to the borrower. No distinction is made between costs incurred prior to trial, as opposed to costs incurred during trial. Although the expert witness was not required to testify due to settlement of this case, it was not unreasonable for Albina to hire and pay for that expert in anticipation of trial. Thus, this charge is recoverable and does not appear to be unreasonable.
As a result, Albina's request for charges not included in the hourly rates is allowed in the reduced amount of $5,573.31.
II. COSTS
Albina has submitted a Bill of Costs for $5,057.00, consisting of $3,924.50 for fees of the court reporter for depositions and transcripts and $1,132.50 for fees of witnesses. Plaintiffs object to both requests.
Expenses which may be taxed as costs against the losing part are enumerated in 28 U.S.C. § 1920 and include "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case" and "[f]ees and disbursements for . . . witnesses." 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. Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th Cir 1990) (per curiam), cert denied, 502 U.S. 812 (1991).
A. Depositions and Transcripts
Contrary to plaintiffs' objection, fees incurred in obtaining deposition transcripts are generally available to the prevailing party under 28 U.S.C. § 1920(2). Washington State Dep't of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 806 (9th Cir 1995). Prior to allowing the taxation of deposition transcript fees, however, the court must determine whether the transcript was "necessarily obtained for use in the case." 28 U.S.C. § 1920(2).
"A deposition need not be absolutely indispensable to justify an award of costs; rather, it must only be reasonably necessary at the time it was taken, without regard to later developments that may eventually render the deposition unneeded at the time of trial or summary disposition." Frederick v. City of Portland, 162 F.R.D. 139, 143 (D Or 1995), citing Barber v. Ruth, 7 F.3d 636, 645 (7th Cir 1993). Depositions which are merely useful for discovery, investigative, or preparatory purposes are not taxable items and are expenses "incidental to normal preparation for trial." Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678 (9th Cir), cert denied, 375 U.S. 922 (1963), citing Republic Mach. Tool Corp. v. Federal Cartridge Corp., 5 F.R.D. 388, 388-89 (D Minn 1946).
Despite some authority to the contrary, the generally accepted view is that introduction of a deposition at trial is not a prerequisite for finding that it was necessary to take the deposition. Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir 1985), overruled on other grounds, Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir 1989). Depositions used "for determining what portions of the testimony to present as well as for preparing to impeach witnesses" are deemed necessary for use in the case. Commercial Credit Equip. Corp. v. Stamps, 920 F.2d 1361, 1368 (9th Cir 1990). And even if not used at trial, a deposition is taxable if it was reasonably necessary under the circumstances at the time it was taken, whether or not it is used later.
While some cases hold that the costs of depositions are taxable only if they were either introduced in evidence or used at trial in examining or impeaching witnesses, the more equitable as well as more practical view is to allow the recovery of such expense if the taking of the deposition is shown to have been reasonably necessary in the light of facts known to counsel at the time it was taken.
Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir 1982) modified on other grounds, 701 F.2d 542 (5th Cir 1983) (en banc).
Albina has neither attached the court reporters' bills nor itemized the depositions in its disbursements by name of the witnesses. However, plaintiffs' objection is not premised on that failure. Moreover, the billings reveal which depositions were taken and defended, all of which would have been used either as substantive testimony at trial or to prepare for cross-examination and impeachment purposes at trial. Therefore, the amount requested by Albina is recoverable.
B. Witness Fees
Plaintiffs object to the witness fees because Albina stated no ground for recovery of such fees and because all of the witnesses were local. In response to plaintiffs' objection, Albina clarifies, but without providing any supporting documentation, that it seeks reimbursement for fees paid to witnesses who were subpoenaed to appear for the first trial in the amount of $282.75. The remaining $846.75 is the cost of serving the subpoenas. Although the witnesses may be local, service of a subpoena is a necessary precaution to ensure attendance at trial, especially for witnesses not employed by Albina. Therefore, plaintiffs' objection is not well-taken.
ORDER
Based on the foregoing:
1. Albina's Motion for Award of Attorney Fees (docket #155) is GRANTED IN PART and DENIED IN PART. Albina is awarded the sum of $110,000 for attorney fees plus $5,573.31 for charges not included in the hourly rates, for a total of $115,573.31.
2. Albina's Bill of Costs (docket #156) is GRANTED in the sum of $5,057.00.