Opinion
Case No. 4:02-CV-95
February 24, 2003
Arthur Kittredge Smith, of Smith DeFeo, Allen, TX, For Plaintiffs.
Ronald G. MacFarlane, Jr. of Sifford Anderson, LLP, Dallas, TX, John Kelley Vaughn and Michael, Nathaniel Barbera, Grand Prairie, TX, For Defendants.
ORDER ON ATTORNEY'S FEES AND COSTS
Pending before the Court is Plaintiff Home Deport U.S.A., Inc.'s Brief in Support of Its Request for Attorney's Fees and Expenses (Docket No. 32). Having considered the parties' submissions and the applicable law, the Court finds that Plaintiff is entitled to recover $74,048.50 in attorney's fees and $200.00 in costs.
ATTORNEY'S FEES
Plaintiff requests $74,048.50 in attorney's fees for the instant action and the underlying lawsuit. To calculate reasonable attorney's fees, the Court determines the "lodestar" by multiplying the number of hours spent on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court evaluates the reasonableness of the fee requested in light of the factors set forth by the Fifth Circuit: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney as a result of accepting the case; (5) the customary fee; (6) whether the fee is 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 attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Plaintiff's requested hourly rates for attorney's fees must be reasonable within the relevant market. See Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). Here, the relevant market is Sherman. Plaintiff's lead attorney, Arthur K. Smith ("Smith"), is a shareholder of the professional corporation Smith DeFeo with eighteen years of legal experience. In this case, he prevailed on a Motion for Summary Judgment. It is Smith's opinion that $125.00 per hour is a reasonable hourly rate for his services. In addition, Smith attests that his co-counsel and paralegal are entitled to $125.00 and $65.00 per hour, respectively. The Court finds that the rates requested by Plaintiff are reasonable. Accordingly, the Court shall fix the hourly rate at $125.00 per hour for the attorneys and $65.00 per hour for the paralegal.
Plaintiff can only recover attorney's fees for time reasonably expended on the litigation. Without delving into the specifics of each transaction that Plaintiff listed and how must time each activity should have taken, the Court finds that the hours listed are reasonable and not excessive. Therefore, Defendant shall pay $55,345.50 in attorney's fees to Plaintiff for the underlying lawsuit and $18,703.00 in the instant action, for a total amount of $74,048.50.
COSTS
Plaintiff also seeks to recover $4,555.12 in costs in the underlying lawsuit and $1,344.53 in costs in the instant action. These costs include, photocopying charges, computer research charges, service of process fees, filing fees, courier and federal expense fees, postage, long distance telephone and facsimile charges, charges for medical records, travel expenses, court reporter expenses, and mediation expenses. Plaintiff failed to break down each category for the court, but did submit approximately 100 pages of invoices.
Pursuant to Federal Rule of Civil Procedure 54(d), costs are to be awarded to the prevailing party as matter of course, unless the Court directs otherwise. However, the provisions of 28 U.S.C. § 1920 limit the Court's discretion in taxing costs against the unsuccessful litigant. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). The statute permits the following recoverable costs:
(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 § 1923 . . .; and
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under § 1828. . . .28 U.S.C. § 1920. A district court is permitted to decline to award costs listed in the statute, but may not award costs omitted from the statute. Crawford, 482 U.S. at 441-42.
Pursuant to 28 U.S.C. § 1920, the Court finds that the out of the numerous expenses listed by Plaintiff, only photocopying charges, filing fees and court reporter expenses are potentially recoverable. Out of the costs that are potentially recoverable, after reviewing the documents submitted, the Court finds that only $200.00 in filing fees is recoverable. The costs of photocopies and reporter expenses are not recoverable.
Costs of photocopies necessarily obtained for use in the litigation are recoverable upon proof of necessity. 28 U.S.C. § 1920(4); Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994). The party seeking costs need not "identify every xerox copy made for use in the course of legal proceedings." Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). However, it must demonstrate some connection between the costs incurred and the litigation. Id. Charges for multiple copies of documents, attorney correspondence, and other such items are not recoverable. Id.
Plaintiff has attached invoices to its Brief. The various invoices provide the number of photocopies performed and the amount charged. However, neither the invoices nor any of the other submissions, categorize the photocopies so that the Court may reasonably determine the copies which were necessary and those which were not. Moreover, the invoice does not attempt to group the costs into categories of documents, i.e., how much was spent on discovery documents, how much was spent on materials provided by its own experts, how much was spent on trial exhibits. Plaintiff has not met its burden to show necessity and, therefore, the entire amount is disallowed.
As for the court reporter expenses, the Court is unable to determine the amount that Plaintiff paid for these expenses. Accordingly, they are disallowed.
CONCLUSION
In sum, the Court finds that Plaintiff is entitled to $74,048.50 in attorney's fees and $200.00 in costs, for a total amount of 74,248.50. A Final Judgment will be filed in accordance with this Order and the January 27, 2003 Memorandum Opinion and Order.
IT IS SO ORDERED.