Id. at 322-26. In a subsequent ruling, the District Court granted DiMare's motion for $73,250 in attorneys' fees. Koam Produce, Inc. v. DiMare Homestead, 222 F.Supp.2d 399 (S.D.N.Y. 2002) (" Koam II"). Koam appealed. We now affirm.
Where, as here, Respondent is an out-of-state shipper, there is generally little “reason why an out-of-state shipper should be compelled to rely solely upon New York counsel.” Koam Produce, Inc. v. Dimare Homestead, Inc., 222 F.Supp.2d 399, 401 (S.D.N.Y.2002)aff'd,329 F.3d 123 (2d Cir.2003). Moreover, it would appear cost effective to have trial counsel, who already obtained summary judgment for Respondent, argue the case on appeal.
“If the appellee prevails, an award of attorney's fees is mandatory; it is not within the discretion of the district court.” Koam Produce, Inc. v. DiMare Homestead, Inc., 222 F.Supp.2d 399, 401 (S.D.N.Y. 2002) (citing Robinson Farms Co. v. D'Acquisto, 962 F.2d 680, 684 (7th Cir. 1992)). Here, Respondent is the prevailing party and, therefore, is entitled to reasonable attorney's fees and costs.
"If the appellee prevails, an award of attorney's fees is mandatory; it is not within the discretion of the district court." Koam Produce, Inc. v. DiMare Homestead, Inc., 222 F. Supp.2d 399, 401 (S.D.N.Y. 2002) (citing Robinson Farms Co. v. D'Acquisto, 962 F.2d 680, 684 (7th Cir. 1992)). "The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute."
Sprout's objections do not take into account the time that Respondent spent on, among other things, "legal research, correspondence to client, drafting a proposed order, and reviewing local filing rules." (Sprout's Response ¶ 1; Respondent's Reply at 1); Koam Produce, Inc. v. DiMare Homestead, Inc., 329 F.3d 123 (2d Cir. 2003) aff'g 222 F. Supp. 2d 399 (S.D.N.Y. 2002).
Moreover, expenses incident to the hiring of out-of-state counsel — including pro hac vice fees — are generally considered attorney fees. See Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp. 2d 1085, 1088 (D. Colo. 1998); see also Koam Produce, Inc. v. Dimare Homestead, Inc., 222 F. Supp. 2d 399, 401 (S.D.N.Y. 2002). The express language of Rule 54 indicates attorney fees should not be considered as "costs" for purposes of Section 1920.
00 in attorneys' fees. Miuccio Aff. at ¶ 7, Exh. F. Section 499g(b) provides that a party who files suit in district court to enforce a reparation award is entitled to a reasonable attorneys' fee and costs. See 7 U.S.C. § 499g(b); see also Koam Produce, Inc. v. DiMare Homestead, Inc., 222 F. Supp. 2d 399, 401 (S.D.N.Y. 2002) (construing identical language in section 499g(c)), aff'd, 329 F.3d 123 (2d Cir. 2003); Frankie Boy Produce Corp v. Sun Pacific Enters., 99 Civ. 10158, 2000 WL 1532914, at *1 (S.D.N.Y. Oct. 17, 2000). Like the award of interest discussed above, attorneys' fees may be awarded as "`sums owing in connection with' perishable commodities transactions" where the seller's invoice includes a clause providing for attorneys' fees.