Opinion
No. 02-2054-DJW
November 6, 2003
MEMORANDUM AND ORDER
On May 30, 2003, this Court granted Plaintiff's Motion to Dismiss without Prejudice upon the condition that Plaintiff reimburse Cessna for any duplicative costs, including attorneys' fees, that Cessna may incur defending the same cause of action in the English court system. The matter is before the Court on Cessna's Motion for Duplicative Costs, Expenses and Fees (doc. 69). More specifically, Cessna seeks to recover $125,165.00 in attorneys' fees, or 86% of the total amount of fees incurred in defending this case. Cessna also seeks to recover $26,768.00 in costs and expenses.
For the reasons stated below, Cessna's Motion will be granted to the extent that Plaintiff will be ordered to pay Defendant $45.798.25 in duplicative fees and costs arising from the dismissal by Plaintiff of its United States action.
Discussion
A. Attorneys' Fees
Upon voluntary dismissal of a lawsuit without prejudice, the payment of costs, expenses, and fees to the opposing party should be limited to compensation for work that cannot be used in a second contemplated action, and the amount of fees awarded must be supported by evidence in the record. Accordingly, Cessna must show the costs, expenses, and fees for which it requests reimbursement were incurred from activities relating solely to the United States litigation and will not be useful in defending against Plaintiff's newly filed claims against it in the English action.
Gonzales v. City of Topeka, Kansas, 206 F.R.D. 280, 284 (D. Kan. 2001) (citations omitted).
In its Motion for Duplicative Costs, Expenses and Fees, Cessna sets forth the following categories of legal services for which it has incurred fees in this case:
• Client Communications
• Motion Practice
• Document Review and Control
• Motion to Stay
• Mediation and Settlement
• Expert Witness Selection and Preparation
• Legal Research
• Discovery
• Attorney Preparation
• Witness Preparation
• Miscellaneous Legal Tasks
Within each of these categories, Cessna generally discusses the likelihood that the work done by its attorneys in this case ultimately will have to be duplicated in the English litigation. There are no dollar figures associated with any of the categories and only general references are made to the sixty-three page itemization of attorney time records submitted as an exhibit to its request.
In reviewing this submission, the Court notes that Cessna makes no real meaningful attempt to establish the referenced fees were incurred for work that would not be useful in its defense against duplicative claims brought against Cessna in the English suit. In support of its request, Cessna submits only one exhibit: the sixty-three pages of detailed attorney time records for this case as referenced above. Although the time records include an inordinate amount of information regarding attorney time put into the case, Cessna fails to accompany these time records with any explanation at all regarding (1) why the work done will be duplicative of work to be done in the English suit or (2) why the discovery and the work already done in this lawsuit will not be useful in the English litigation. The records submitted — without explanation or annotation — afford the Court with little basis for separating out discovery or work that would not be useful in Cessna's defense against duplicative claims in England.
With that said, the Court acknowledges that some of the attorney services provided may be duplicative by their very nature. For example, even if the bulk of work done here in the United States can be used by the English attorneys, there necessarily will be duplication of effort in imparting to the English attorneys the information and documents compiled by attorneys in the United States, as well as time spent by English counsel in reviewing the discovery already produced and propounded. Moreover, time spent preparing for and attending scheduling conferences and complying with specific procedures required by this court (e.g., submission of settlement statements), will not be useful in the English suit. In addition, it appears all legal research in this lawsuit was conducted pursuant to American law and will be of little assistance in English court.
With regard to more specific motion practice, the English lawyers likely will not be able to use the dispositive motions drafted and filed in this lawsuit, which were aimed at disposing of specific claims and damages brought pursuant to American common law. And, although Cessna's motion to stay against Raytheon in the English court is not related to this lawsuit, Cessna's work related to the motion to stay filed in this lawsuit was a direct result of Plaintiff's choice of how to proceed with this action.
Based on the information presented, and the fact that much of the discovery developed in this lawsuit will be useful to defend against Plaintiff's newly filed claims against it in the English action, the Court finds $41,721.62, or one-third of the $125,165.00 in fees requested, should be reimbursed to Cessna as compensation for attorney work done in this lawsuit that cannot be used in the English cause of action.
B. Costs and expenses
Unlike the attorneys' fee request, Defendant itemizes costs and expenses incurred for each category for which it requests reimbursement. Thus, the Court will discuss each category in turn.
1. Copying
The Court is not persuaded that copying costs necessarily must be duplicated in that Cessna's United States counsel can forward the copies it made to Cessna's English counsel.
2. Communications
The Court finds Cessna's communication with counsel in the United States in this lawsuit is necessarily unique to cause of action here; thus, such communication cannot be used in the English cause of action and will need to be duplicated in that lawsuit.
3. Deliveries
Delivery and postage fees for various tasks already undertaken, such as communicating with Cessna, opposing counsel, and the Court, necessarily must be duplicated in the English suit and thus should be reimbursed to counsel here.
4. Expert fees
The Court finds all experts hired here can be used in the English suit, regardless of any tactical decision on Cessna's part that it will not use one of the previously hired experts in the English suit. Therefore, the Court finds these charges will not be duplicative.
5. Fee Award in England regarding Motion to Stay in that case
Cessna's actions in the Raytheon action are not considered when determining duplication of costs in the current case. Therefore, the Court finds these charges will not be duplicative.
6. Travel
Cessna's English counsel will incur travel charges during the litigation process that will likely exceed the travel charges from the United States action. Therefore, the Court finds travel costs will be duplicative.
7. Legal research
Cessna's English counsel necessarily must conduct its own legal research. Therefore, the Court deems cost associated with legal research in the United States will be duplicative.
Conclusion
For the foregoing reasons, Cessna's Motion for Duplicative Costs, Expenses and Fees (doc. 69) is granted to the extent that Plaintiff is hereby ordered to pay Defendant $45,798.25 in duplicative fees and costs arising from the dismissal by Plaintiff of its lawsuit here.
IT IS SO ORDERED.