Opinion
CIVIL ACTION NO. SA-99-CA-0343 WWJ (NN).
March 1, 2002
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
This Memorandum and Recommendation concerns the amount of reasonable and necessary attorneys' fees and costs plaintiff should receive as "prevailing party" on its breach of contract claim against the defendants. As the numerous pleadings filed on the issue suggest, the amount of what would be considered "reasonable and necessary" attorneys' fees is heavily contested by the parties in this case. Because plaintiff did not prevail on all of its claims tried before a jury from January 16 to 24, 2001, particularly on its federal causes of action under 42 U.S.C. § 1981 and 1983, the Court entered an Order on August 20, 2001, requiring plaintiff to "resubmit its request for attorneys' fees having segregated the attorneys' fees for each claim and indicating the time billed exclusively for litigating the breach of contract claim."
The pleadings are: (1) plaintiffs original request for attorneys fees, expenses and costs, filed February 5, 2001 (Docket Entry 108) and defendants' response to same, filed February 20, 2001 (Docket Entry 111); (2) plaintiffs amended application for attorneys' fees and costs, filed July 16, 2001 (Docket Entry 125), defendants' response, filed July 25, 2001 (Docket Entry 130) and plaintiffs reply to defendant's response, filed July 31, 2001 (Docket Entry 133); (3) plaintiffs supplemental application for attorneys' fees and costs (Docket Entry 135) and defendants' response to same (Docket Entry 132); and (4) plaintiffs' segregated application for attorneys' fees for breach of contract claim, filed August 31, 2001 (Docket Entry 137) and defendants' response, filed September 10, 2001 (Docket Entry 138).
Docket Entry 136, at 4.
In response to the Court's Order, plaintiff filed a document entitled: "SEGREGATED APPLICATION FOR ATTORNEYS' FEES FOR BREACH OF CONTRACT CLAIM," on August 31, 2001. In that application, one of plaintiffs attorneys, Sylvan S. Lang Jr., who appears to have been retained on an hourly basis, submitted evidence showing segregation of his attorney fee time that was necessary for investigating and proving the breach of contract claim. As required by the Court's Order, Mr. Lang eliminated the time spent on briefing the civil rights issues, discrimination issues, and section 1983 issues. By excluding the time spent on those matters, plaintiff reduced its request for attorneys' fees incurred by Mr. Lang by approximately $18,396.00, for a revised attorneys' fee amount of $55,797.00.
Docket Entry 137.
Id . at 1-2 and Exhibits A B.
On the other hand, plaintiffs lead trial counsel, Richard Burton, failed to comply with the Court's Order to segregate his fees, relying instead on previously submitted evidence and requesting that the Court award the amount of $71,610.00 to plaintiff as his incurred attorneys' fees. Mr. Burton explains that this amount comports with his purported contingency fee arrangement with plaintiff for 33% of the damages awarded to plaintiff in the Amended Final Judgment ($217,000.00). Thus, according to plaintiffs segregated application, it requests that a total amount of $127,407.00 be awarded in attorneys' fees. Defendants oppose that request.
Docket Entries 125, 135 and 137. According to my computations, Mr. Burton's requested attorneys' fees total $71,661.00 (after having added the additional amount of $66,000.00 to $5,661.00).
Docket Entry 137, at ¶ 4(b).
Docket Entry 129.
Docket Entry 137, at 2-3.
Docket Entry 138.
In that regard, defendants argue that an award of attorneys' fees of more than $80,000.00 would be excessive under the circumstances presented in this case. Defendants contend that plaintiffs application attempts to collect hourly fees "on top" of a contingency agreement. In addition, defendants dispute some itemized billing statements from Mr. Lang arguing that those entries consist of redundant or duplicative work performed by both Mr. Lang and Mr. Burton, and that some of Mr. Lang's entries include "non-attorney work," for which he charged his full attorney billable hourly rate of $175.00. With respect to Mr. Burton, defendants contend that the entries are so general that it cannot make any specific objections to same. In addition, defendants note that while Mr. Burton refers to a contingency fee arrangement with the plaintiff, Mr. Burton has not produced the agreement in support of his fee application.
Docket Entry 130, at 4.
Docket Entries 132.
Docket Entry 130 and Exhibit A.
Id . at Exhibit A, ¶ 12.
Docket Entry 132, at 1 and fn.1.
Primarily because Mr. Burton did not comply with the Court's previous Order to segregate his fees to reflect the time spent working on plaintiffs breach of contract claim only , I cannot recommend that the amount of attorneys' fees sought by Mr. Burton, which merely reflect a percentage of the amended final judgment pursuant to a contingency fee arrangement, be considered "reasonable and necessary."
As discussed more fully below, it is my recommendation that plaintiffs segregated application for attorneys' fees for its breach of contract claim (Docket Entry 137) be GRANTED, IN PART, AND DENIED, IN PART , and that the amount of $55,797.00 be awarded as "reasonable and necessary" attorneys' fees for the prosecution of plaintiff s breach of contract claim, pursuant to TEX. CIV. PRAC. REM. CODE § 38.001(8) (Vernon 1997 Supp. 2001). Regarding the award of appellate attorneys' fees in the amount of $10,000.00, that requested amount is speculative, and since plaintiff has not provided any evidence to support the reasonableness and necessity for such an award, the request should be denied. I will, in addition, make a recommendation in this Memorandum with respect to the expenses and costs plaintiff is entitled to receive, pursuant to 28 U.S.C. § 1920 and FED. R. CIV. P. 54(d).
Docket Entry 125, at ¶ 12 and Exhibit A, ¶ 8. In reviewing the docket sheet of this case, it appears that while the amended final judgment was entered on July 17, 2001, no appeal has been filed in the case as of this date.
Docket Entries 125, 135 and 127.
I have jurisdiction to enter this Memorandum and Recommendation, pursuant to 28 U.S.C. § 636 (b)(1)(B), FED. R. CIV. P. 72(b) and 54 (d)(2)(D), and the District Court's Order dated November 19, 2001, referring the merits of plaintiffs application for attorneys' fees and costs for its breach of contract claim to me for a recommendation.
Docket Entry 139.
II. Discussion
A. Attorneys' Fees1. Applicable Legal Standards
Attorneys' fees must be authorized by statute or contract; Texas common law does not provide a right to attorneys' fees. When a prevailing party in a breach of contract suit seeks attorneys' fees, an award of reasonable fees is mandatory under section 38.001 of the Texas Civil Practice and Remedies Code if there is proof of the reasonableness of the fees. If a case involves more than one claim, fees may be recovered only for those claims falling within the statute or contract. Further, the party seeking recovery of attorneys fees always has the burden of proof to show that the fees were incurred against the particular defendant sought to be charged. "Although courts should consider several factors when awarding attorneys' fees, a short hand version of these considerations is that the trial court may award those fees that are "reasonable and necessary" for the prosecution of the suit." The factors to be considered in determining the reasonableness of attorneys' fees include:
See AU Pharmaceutical, Inc. v. Boston , 986 S.W.2d 331, 336 (Tex.App. Texarkana 1999, no writ); and Hill v. Heritage Resources, Inc ., 964 S.W.2d 89, 143 (Tex.App.-El Paso 1997, writ denied).
See World Help v. Leisure Lifestyles, Inc ., 977 S.W.2d 662, 683 (Tex.App.-Fort Worth 1998, writ dism'd) ("A trial court has discretion to fix the amount of attorney's fees, but it does not have the discretion to completely deny attorney's fees if they are proper under section 38.001"); Budd v. Gay , 846 S.W.2d 521, 524 (Tex.App. — Houston [14th Dist.] 1993, n.w.h.); and Lyons v. Montgomery , 701 S.W.2d 641, 644 (Tex. 1985). TEX. CIV. PRAC. REM. CODE ¶ 38.001 reads in relevant part: "A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for: [. . .] (8) an oral or written contract. Id .
Bernal v. Garrison , 818 S.W.2d 79, 85 (Tex.App. — Corpus Christi 1991, writ dism'd); and Praeger v. Wilson , 721 S.W.2d 597, 601 (Tex.App.-Fort Worth 1986, writ ref'd n.r.e.).
Id . (citing Koch Oil Co. v. Wilber , 895 S.W.2d 854, 867 (Tex.App.-Beaumont 1995, writ denied)). See also Stewart Title Guaranty Co. v. Sterling , 822 S.W.2d 1, 10 (Tex. 1991) (citations omitted).
Id . (citations omitted).
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
See Bernal , 818 S.W.2d at 85-86; and AU Pharmaceutical Inc ., 986 S.W.2d at 339 fn.6 (citing to TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (vernon 1998)).
The standard of review for an award of attorneys' fees on the basis of breach of contract is abuse of discretion. The test for abuse of discretion is whether the trial court's decision was arbitrary or unreasonable. A trial court's actions are unreasonable only if the court acted without reference to any guiding rules and principles. Further, evidence on total attorneys' fees without segregation, after the court specifically ruled segregation of the requested fees was appropriate as it did in this case, warrant a denial of an award of those unsegregated fees by the court.
Au Pharmaceutical Inc ., 986 S.W.2d at 337 (citations omitted).
See Pyles v. United Services Auto Association , 804 S.W.2d 163, 164 (Tex.App.-Houston [14th Dist.] 1991, writ denied).
See City of Austin v. Janowski , 825 S.W.2d 786, 788 (Tex.App.-Austin 1992, no writ).
See Stewart Title Guaranty Co ., 822 S.W.2d at 11 (and cases cited therein); and AU Pharmaceutical Inc ., 986 S.W.2d at 337.
It should also be noted that Local Rule CV-7(i) governs the content of motions seeking an award of attorneys' fees in this district. The Rule states that the motion shall include a supporting document organized chronologically by activity or project, listing attorney name, date, and hours expended on the particular activity or project, as well as an affidavit certifying: (1) that the hours expended were actually expended on the topics stated, and (2) that the hours expended and rate claimed were reasonable. With these legal principles in mind, I will proceed to analyze the reasonableness of plaintiffs requested attorneys' fees.
2. Fees Incurred by Attorney Richard Burton
After the Court's Order requiring segregation of fees entered on August 17, 2001, plaintiff requested an award of "reasonable and necessary contingent attorneys fees in the amount of $71,610.00 incurred by Plaintiff for the services of Richard Burton which is thirty-three percent (33%) of the damages recovered by Plaintiff according to the Amended Final Judgment." The evidence submitted in support of this request consists of Mr. Burton's affidavit sworn on July 23, 2001, and redacted contemporaneous time records maintained for record-keeping purposes by Mr. Burton's law firm.
Docket Entry 137, at ¶ 4(b).
Id . at Exhibit C and Docket Entry 125, at Exhibit C-1.
According to Mr. Burton's affidavit, he states that he is licensed in the State of Florida, the United States District Courts for the Southern, Middle and Northern Districts of Florida, the District of Columbia, the United States Court of Appeals for the First, Fifth and Eleventh Circuits, and the United States Supreme Court. He received his J.D. from the University of Miami in 1974. In terms of his legal practice, Mr. Burton states that he devotes approximately 40% of his practice to civil rights cases, handling discrimination cases involving Title VII, the ADA, 42 U.S.C. § 1981 and 1983, among other state and federal civil rights statutes. The remainder of his practice consists primarily of other complex civil litigation. According to Mr. Burton, plaintiff retained him to represent its interests in this matter on a contingency basis of 33% of the recovery, after re-payment of all fees and costs expended. At the time he was retained, Mr. Burton explains that he originally assigned an hourly rate of $200.00/hour to the file as this was "a reasonable hourly rate for [his] services in an [sic] labor/civil rights case, based on [his] experience, training, education and practice." Subsequently, in 1998, Mr. Burton's hourly rate for employment cases and consumer litigation increased to $250.00/hour. Consequently, Mr. Burton states that his time records in the case maintained by his firm have been computed at a rate of $250.00/hour, even though he was paid only his incurred costs. He maintains that "the above rates are within the range of the prevailing market rates for attorney's fees in South Florida."
Docket Entry 125, at ¶ 7 and Docket Entry 137, Exhibit C, at ¶ 1.
Docket Entry 125, at ¶ 7.
Docket Entry 137, Exhibit C, at ¶ 3.
Id .
Id . at ¶ 4.
Id . at ¶¶ 4 and 7.
Id . at ¶ 4.
A review of Mr. Burton's attached time records indicate that he spent a total of 425.90 hours on the case from November 4, 1997 through February 1, 2001, which computed at a rate of $250.00/hour, amounts to a total of $106,475.00 in incurred attorneys' fees. Mr. Burton, then asks the Court to find his contingency attorney fee in the amount of $71,610.00 as a reasonable and necessary fee based on the 33% of the damages recovered by plaintiff according to the amended final judgment entered in the case in the amount of $217,000.00.
Docket Entry 125, at Exhibit C-1. In terms of costs, the only item noted in the time records is for $38.13 incurred on November 13, 1997. Id .
Docket Entry 137, at ¶ 4(b) and Exhibit C, at ¶ 9.
Having reviewed the evidence submitted by Mr. Burton, I am unable to assess the reasonableness of his requested attorneys' fees for three main reasons. First, Mr. Burton's redacted time entries do not segregate the time expended on the prosecution of plaintiffs breach of contract claim. The entries are generic and contain no discernable description of the type of work performed for plaintiff in furtherance of its breach of contract claim against the defendants. Mr. Burton's failure to segregate his time entries runs contrary to the Court's August 21, 2001 Order requesting plaintiffs attorneys to segregate their fees, and on that basis alone, Mr. Burton's fees should be denied.
Further, Mr. Burton's time entries do not contain the level of detail envisioned by Local Rule CV-7(i).
Second, since plaintiff was not successful on its federal claims of discrimination and civil rights violations under 42 U.S.C. § 1981 and 1983, it is not evident from the record whether Mr. Burton's legal expertise brought any benefit or value to the plaintiff. Mr. Burton is a Florida attorney who specializes primarily in discrimination and civil rights cases under various federal and state statutes. There is no evidence that Mr. Burton had any kind of specialized knowledge or expertise on Texas contract law. In that regard, it can be assumed that Mr. Burton's co-counsel was more familiar with Texas contract law as a Texas-based attorney.
Finally, despite Mr. Burton's failure to segregate his fees as ordered by the Court, he implicitly requests that the Court find that fees calculated on the 33% contingency are "reasonable and necessary." In Arthur Andersen Co. v. Perry Equipment Corp ., the Texas Supreme Court held that evidence of a contingency agreement alone cannot support an award of reasonable and necessary attorneys' fees. "While a contingency fee contract should be considered by the fact finder, the fact finder should also be guided by the other factors [. . .] governing [an award of] fees." Because plaintiff ultimately recovered only on its breach of contract claim against defendants, and because plaintiffs other causes of action under 42 U.S.C. § 1981 and 1983 entailed proof of facts unnecessary for proof of its contract claim, and considering the percentage basis of the award without any evidence that the fees attributable to the breach of contract claim had been segregated, it is my recommendation that the district court DENY plaintiffs request for recovery of Mr. Burton's contingency fees. Mr. Burton's supporting evidence is neither responsive to the Court's Segregation Order or probative of the reasonableness of the fees he incurred in the prosecution of plaintiffs breach of contract claim under Texas law. To award attorneys' fees on this record would constitute an abuse of discretion.
Docket Entry 137, at ¶ 4(b).
945 S.W.2d 812 (Tex. 1997).
Id . at 818.
Id . (citing to TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998)). See also AU Pharmaceutical Inc ., 986 S.W.2d at 339.
3. Fees Incurred by Attorney Sylvan S. Lang. Jr.
Plaintiff further requests that, in accordance with the Court's Order requiring segregation of fees entered on August 17, 2001, recovery be allowed for: "reasonable and necessary attorneys fees incurred by Plaintiff for the services of Sylvan S. Lang, Jr., in the amount of $55,797.00." In support of its request, plaintiff provides an affidavit of Mr. Lang, " with segregated, partially redacted fee statements, providing chronological listing of attorney fee work necessarily incurred for breach of contract." By excluding the time spent on the civil rights issues, discrimination issues and section 1983 issues, plaintiff has reduced its original fee request for attorneys' fees incurred by Sylvan Lang by approximately $18,396.00 (from the original amount of $74,193.00). This is a considerable amount of reduced fees. I have reviewed Mr. Lang's time entries and find them adequate and reasonable for the legal work performed in prosecuting plaintiffs' breach of contract claim. In addition, I have reviewed Mr. Lang's affidavit and attached resume.
Docket Entry 137, at ¶ 4(a).
Id . at Exhibits A B (emphasis added).
Id . at ¶ 1.
Mr. Lang's segregated itemized billing statement also addresses defendants' specific objections to some of the original entries. Id . at Exhibit B, and Docket Entry 130, at 3.
Docket Entry 137, at Exhibit A, and Docket Entry 125, at Exhibit B-1.
These documents demonstrate that Mr. Lang is an attorney licensed in the state of Texas, the United States District Court for the Western District of Texas and the United States Court of Appeals for the Fifth Circuit. He attended Southern Methodist University School of Law and had a distinguished law school career. He currently practices law in San Antonio, Texas, with the law firm of Lang Kustoff, LLP. Even though Mr. Lang stated in his affidavit that he primarily handles employment/civil rights cases, he also works on consumer and insurance litigation, claims which undoubtedly arise under Texas law. Thus, it can be inferred, considering Mr. Lang's law school studies and legal practice in Texas, that he is familiar with the intricacies of the state's contract law; more so than Mr. Burton. Based on this evidence and Mr. Lang's qualifications, it is my opinion that Mr. Lang's segregated fees are reasonable and necessary.
While defendants object to the time entries related to depositions conducted in Miami and attended by Mr. Lang on August 9-11, 2000, which defendants contend could have been covered by Miami-based Mr. Burton, and the travel time billed for that trip at Mr. Lang's full hourly rate, I do not find those objections warrant any deductions. Any concerns expressed by defendants regarding the redundancy or duplicity of the work performed by plaintiffs two attorneys in relation to these depositions are no longer at issue based on my recommendation concerning Mr. Burton's fees. Also, in addressing defendants' objections to Mr. Lang's "non-attorney" work, charged at his full hourly rate of $175.00, I do not find those entries unreasonable, considering that most of those entries relate to the preparation of the case's pre-trial order and jury trial. Indeed, this work is "legal," not clerical work. Further, according to Mr. Lang's affidavit, while his hourly rate increased from $175.00 to $180.00 in 1998 and to $200.00 in 2000, Mr. Lang charged plaintiff the same hourly rate of $175.00, the rate in effect when plaintiff retained him, for the entire pendency of the case.
Docket Entry 137, Exhibit B, at 2.
Docket Entry 130, Exhibit A, at ¶ 11 and Docket Entry 138, at 1.
Docket Entry 130, Exhibit A, at ¶ 11 and Docket Entry 137, Exhibit B, at 3-5, Entries entered in October of 2000 and January of 2001.
Docket Entry 137, at Exhibit A, ¶ 4 and Exhibit B.
For the reasons discussed above, it is my recommendation that plaintiffs segregated application for attorneys' fees incurred by Mr. Lang in the prosecution of plaintiffs breach of contract claim be GRANTED and that plaintiff be awarded the amount of $55,797.00 as reasonable and necessary attorney's fees incurred by plaintiff for Mr. Lang's services.
Based on plaintiff's segregated application of attorneys' fees, any attorneys' fees that may have previously been sought by plaintiff for the services of the law firm of Shelton Valadez in a related lawsuit, have been withdrawn and are no longer in dispute in this case. Docket Entry 137.
4. Appellate Attorneys' Fees
In its amended application for attorneys' fees and costs, plaintiff prays for an award of appellate attorneys' fees in the amount of $10,000.00 "in the event that Plaintiff is the prevailing party in connection with its claims on appeal to the United States Court of Appeals for the Fifth Circuit." Plaintiffs counsel further states in his affidavit: "An award of appellate attorneys' fees in the amount of $10,000.00 [. . .] to Plaintiff would be a reasonable and necessary attorney fee expense for handling a successful appeal of this case to the United States Court of Appeals for the Fifth Circuit." While plaintiffs counsel attests to the reasonableness and necessity of the request, there is no other evidence of record which I, as the fact finder, can use to evaluate the reasonableness of plaintiffs request for appellate fees. At this juncture in the case and in light of the fact that no appeal has yet been perfected on the Court's Amended Final Judgment entered in the case on July 17, 2001, the amount requested by plaintiff is speculative and not supported by the evidence. This Court cannot exercise its discretion in awarding the fees as requested because no evidence has been presented as to the reasonableness and necessity of the request. Further, plaintiff has presented no authority supporting an award of appellate fees in circumstances similar to these found in the instant case, i.e ., in advance of such services being rendered and before a judicial determination that plaintiff is the prevailing party on appeal and that the fees it incurred were reasonable. Accordingly, it is my recommendation that, without competent proof or legal authority, plaintiffs request for an award of appellate attorneys' fees should be DENIED at this time. B. Costs and Expenses
Docket Entry 125, at ¶ 12.
Id . at Exhibit B, at ¶ 8 (Emphasis added).
Docket Entry 129. While the time to appeal under FED. R. APP. P. 4 (a) could be dependent upon the entry of the Court's order disposing of plaintiffs application for attorneys' fees and costs under FED. R. CIV. P. 54, there is no indication that the Court has extended the time to appeal under FED. R. CIV. P. 58. See FED. R. APP. P. 4(A)(iii).
See fn. 15 supra .
Id .
Plaintiff also requests that the Court award costs to plaintiff pursuant to 28 U.S.C. § 1920. Section 1920 allows prevailing parties to recover taxable costs of court as a matter of course, unless the court directs otherwise. Taxable costs include: (1) fees of the clerk and marshal; (2) fees of the court reporter for any part of a transcript "necessarily obtained" for use in the case, including both trial and deposition transcripts; (3) fees and disbursements for printing; (4) fees and disbursements for witnesses; (5) fees for the exemplification and copies of papers necessarily obtained for use in the case; (6) docket fees under 28 U.S.C. § 1923; and (7) compensation of court-appointed experts and interpreters, salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. The United States Supreme Court has indicated that federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary.
§ 1920(2). See Manildra Milling Corp. v. Ogilvie Mills, Inc ., 76 F.3d 1178, 1184 (Fed. Cir. 1996); Coats v. Penrod Drilling Corp . 5 F.3d 877, 891 (5th Cir.), cert. denied , 510 U.S. 1195 (1994). Section 1920(2) does not include the cost of summarizing depositions. See Zuill v. Shanahan , 80 F.3d 1366, 1371 (9th Cir. 1996), cert. denied 519 U.S. 1090 (1997).
§ 1920(3). See Shannon v. United States Dept. of Housing and Urban Development , 433 F. Supp. 249, 252 (E.D. Pa. 1977).
§ 1920(3).
§ 1920(4). Included in this category are copies made as part of discovery and the copies of filed documents made for the court. See NLFC, Inc., v. Devcom Mid-America, Inc ., 916 F. Supp. 751, 762-63 (N.D. Ill. 1996). Extra copies for the convenience of counsel are not considered necessary for these purposes and therefore not taxed as costs. Id . at 763. See also Haroco, Inc. v. American Nat'l Bank Trust , 38 F.3d 1429, 1441 (7th Cir. 1994).
§ 1920(6).
Crawford Fitting Co. v. J.T. Gibbons, Inc ., 482 U.S. 444-45 (1987). See also Mota v. The University of Texas Houston Health Science Center , 261 F.3d 512, 529 fn.59 (5th Cir. 2001).
According to the bill of costs filed July 16, 2001. plaintiff seeks to recover costs in the amount of $9,049.54, for (1) court reporting fees in the amount of $1,287.35, (2) fees for witnesses in the amount of $275.00, (3) fees for exemplification and photocopies necessarily obtained for use in the case in the amount of $5,987.19, and (4) a mediator's fee in the amount of $1,500.00. Defendants have not filed any objections to plaintiffs recovery of these costs. Based on my independent review of plaintiffs bill of costs and supporting documentation, I find items one through three within the realm of taxable costs recoverable under 28 U.S.C. § 1920 and FED. R. CIV. P. 54 (d)(1), and thus, recommend that such taxable costs be awarded to the plaintiff.
Docket Entry 127, at 1-2 (and copies of itemized billing statements attached thereto).
Docket Entry 130 and Exhibit A.
Regarding item four, the requested mediator's fee, I am guided by the district court's decision in State of Kansas v. Deffenbaugh Industries, Inc ., which held that the prevailing party was not entitled to an award of costs for the mediator's fee under § 1920(6). In that case, the court studied the legislative history to § 1920(6) which expressly refers to court-appointed expert witnesses "as permitted by rule 706 of the Federal Rules of Evidence." The court in Deffenbaugh Industries then reasoned that "[a]lthough the mediator may be an "expert in the law," he or she is not a Rule 706 expert witness whose costs are taxable under § 1920(6)." Based on this decision, and because plaintiff has not provided any authority in support of an award of costs for its mediator's fee, I will deduct the amount of $1,500.00 from the requested amount of taxable costs, rendering the total recoverable costs to $7,549.54.
154 F.R.D. 269 (D. Kan. 1994).
Id . at 270 (citing to H.R. Rep. No. 95-1687, 95th Cong.2d Sess. 13; and National Org for the Reform of Marijuana Laws v. Mullen 828 F.2d 536, 545 n. 7 (9th Cir. 1987) (court-appointed master not a § 1920(6) expert)).
Id .
Finally, plaintiff requests reimbursement of $9,054.00 it was ordered to pay defendants under FED. R. CIV. P. 41(d) for duplicative costs defendants incurred as a result of the plaintiffs non-suit of Cause No. SA-98-038-EP. I cannot recommend that such recovery be included as part of plaintiffs award for costs. While payment of that amount to defendants allowed plaintiff to continue with the prosecution of the case by filing a motion to lift a stay in the case, which defendants did not oppose, that payment cannot be construed as a "filing fee" recoverable under 28 U.S.C. § 1920 as plaintiff advances. Rather, that amount can only be construed as a Court-imposed sanction for conduct solely attributed to the plaintiff. Further, plaintiff has cited no case authority in which an award has been made under circumstances similar to those presented in this case. For these reasons, I recommend that plaintiffs request for additional costs in the amount of $9,054.00 be DENIED .
See Docket Entries 9 and 23.
III. Recommendation
Based on my analysis on the merits of plaintiffs application for attorneys' fees and costs for its breach of contract claim, I recommend that the District Court GRANTS, IN PART , plaintiffs segregated application for attorneys' fees (Docket Entry 137) by awarding plaintiff the amount of $55,797.00 as reasonable and necessary attorneys' fees incurred in the successful prosecution of its breach of contract claim. With respect to plaintiffs request for an award of taxable court costs in accordance with 28 U.S.C. § 1920 and FED. R. CIV. P. 54(d)(1) made part of plaintiffs amended application for attorneys' fees and costs (Docket Entry 125), I recommend that the District Court GRANT, IN PART , plaintiffs request by awarding the amount of $7,549.54. Any other requested amounts in the form of trial and appellate attorneys' fees and related court costs and/or expenses made part of plaintiffs applications (Docket Entries 125, 135 and 137) should be DENIED .
IV. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636 (b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within to days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996).