Corsair Asset Management, Inc. v. MoskovitzCorsair Asset Management, Inc. v. Moskovitz
ORDER
This matter is before the court on defendant Kathy Faer Moskovitz’s motion for reconsideration of this court’s order granting plaintiffs’ motion for default judgment; and plaintiffs Moderncare, Inc. and Corsair Asset Management, Inc.’s motion to tax costs and fees.
I. MOTION FOR RECONSIDERATION
Defendant Kathy Faer Moskovitz seeks the court’s reconsideration of its order dated August 8, 1991, granting plaintiffs’ motion for default judgment. Said default judgment was based upon defendant’s willful failure to attend her own scheduled deposition. Default was entered after six attempts to take her deposition and a written court order directing her to submit to the deposition and warning her that any failure to submit would risk an entry of default judgment. Defendant Kathy Faer Moskovitz, having obtained new counsel, argues that she has not been unjustifiably resisting discovery, but rather, has been under a doctor's care for severe depression which resulted in extreme dysfunction and prevented her from attending her deposition.
In support of defendant’s motion, defendant has submitted the affidavit of Dr. Sheldon B. Cohen. Dr. Cohen is a doctor of psychiatry and licensed to practice medicine in the State of Georgia. Dr. Cohen treated defendant Kathy Moskovitz on a recurring basis from July 3, 1989 through December 10, 1990. Dr. Cohen stated that defendant’s condition required intensive psychotherapy and antidepressant medication. Dr. Cohen concluded that “[a]t the time that she was scheduled to attend a deposition in this case, I strongly recommended that she not be called on to testify.” Based on Dr. Cohen’s affidavit, defendant argues that her medical condition
Dr. Cohen’s affidavit, however, does not state that defendant’s medical condition required that she not attend her deposition. Said affidavit merely states that Dr. Cohen recommended she not testify. Nor does Dr. Cohen’s affidavit provide any information about specific times during the year and a half he was treating defendant for major depression that her condition rendered her so dysfunctional as to be unable to provide a deposition. Plaintiffs attempted to take defendant’s deposition on six different occasions. In addition, plaintiffs note that defendant did not raise her medical condition as an issue preventing the taking of her deposition until after the fourth scheduled deposition date. Nor has defendant’s deposition been taken to date. Therefore, the court sees no reason in reconsidering its order granting default judgment because of defendant’s repeated failure to comply with discovery and this court’s prior orders. See Buchanan v. Bowman,
II. MOTION TO TAX COSTS AND FEES
Plaintiffs seek an order taxing costs and fees on defendants, pursuant to this court’s order of August 8, 1991 granting plaintiffs’ motion for default judgment and awarding plaintiffs expenses and attorney’s fees. Defendants object to the motion to tax costs and fees sought by plaintiffs, arguing that the time charged by plaintiffs’ attorneys is excessive and the documentation supporting said time is without sufficient particularity to enable the court to determine accurately the appropriate fees and costs to be taxed.
A. Attorney’s Fees
The standard for determining appropriate attorney’s fees to be taxed was set by the Eleventh Circuit Court of Appeals in Norman v. Housing Authority of City of Montgomery,
1. Setting the Hourly Rate
The fee application in this case is adequate. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, expertise, and reputation.” Norman,
In reviewing plaintiffs’ counsel’s fee logs, it appears that plaintiffs’ counsel billed one of its file clerks, Anthony J. Hall, at a higher rate for a file clerk than the rates listed in William J. Holley, II’s affidavit supporting plaintiffs’ fee request. Specifically, based on plaintiffs’ counsel’s January 16, 1991 fee log, it appears that Mr. Hall was billed at a rate of $40 per hour, whereas Mr. Holley stated that file clerks were billed at a rate of $25 to $35 per hour. The court believes that a rate of $25 per hour more accurately represents the prevailing market rate for file clerks. Based on the record evidence provided, it appears that Mr. Hall worked on plaintiffs’ case for a total of nine hours. Therefore, plaintiffs’ request for attorney’s fees will be reduced by $135.00 (9 x $15.00/hr), this representing the apparent overbilling by plaintiffs’ counsel.
The district court shall determine whether the hours charged are reasonable, excluding from the amount claimed any unreasonable or unnecessary hours charged. Norman,
Here, plaintiffs’ counsel has merely presented their general time logs in support of the hours expended and for which they are seeking reimbursement. No affidavits indicating the reasonableness of the hours expended were provided, and no summary breakdowns by attorney or topic area were provided. However, defendants’ objections were no more detailed. Defendants cite no specific examples where they believe plaintiffs’ counsel’s work was unreasonable or redundant. Defendant merely notes that plaintiffs’ counsel, represented by multiple attorneys, spent approximately 151 hours on this matter, and that “it is difficult to tell whether there was a duplicity of time by plaintiffs’ counsel.”
An independent review by the court shows five instances of apparent redundant effort on the part of plaintiffs' counsel. On December 7, 1989 both attorneys John G. Parker and Craig K. Pendergrast conducted a telephone conference with a Mr. R. Hart. As no reason is given by plaintiffs’ counsel for having both attorneys attending said phone conference, plaintiffs’ fee request will be reduced by $75.00, representing Mr. Pendergrast’s hourly rate times the half hour spent at said phone conference. On June 12, 1990 it appears that both William J. Holley and Camille B. Frayne attended a settlement conference with M. Moskovitz. Said settlement conference lasted approximately three-fourths of an hour. As the court is unsure of the actual rate charged for Ms. Frayne, the court will reduce plaintiffs’ fee request at Mr. Holley’s rate. Thus, plaintiffs’ fee request is reduced by $120.00 ($160.00 times 0.75/hr). On November 2, 1990 it appears that both William J. Holley and Patricia W. Stanton conducted a telephone conference with M. Moskovitz. Thus, the court will reduce plaintiffs’ fee application by $45.00, one-half of Ms. Stanton’s hourly rate. On November 19, 1990 both William J. Holley and Patricia W. Stanton conducted a telephone conference with M. Moskovitz. Plaintiffs’ fee request is accordingly reduced by $45.00. On December 14, 1990 it appears that both William J. Holley and Patricia W. Stanton billed time for the preparation of exhibits in support of plaintiffs’ motion for default judgment. As no reason is provided as to why both worked on the preparation of these exhibits, plaintiffs’ fee application will be reduced by $90.00, representing one hour’s work at Ms. Stanton’s hourly rate.
The total reduction of plaintiffs’ attorney fee request because of redundant charges is $375.00. Plaintiff will be permitted to recover the remainder of expenses listed in its bill. The rest of the hours expended seem reasonable, and these hours were actually billed to the client.
3. Adjustments to the Lodestar
The court finds that no adjustment to the lodestar is necessary. Plaintiffs’ counsel already has been adequately compensated for the results obtained. Nor does the complexity of the issues involved warrant any additional modification to the lodestar.
B. Costs
In its application for fees and costs, plaintiffs seek numerous costs as presented in their general billing records attached to plaintiffs’ motion to tax costs and fees. Defendants have not objected to any of plaintiffs’ requests for costs.
However,
In Crawford Fitting Co. v. J.T. Gibbons, Inc.,482 U.S. 437 ,107 S.Ct. 2494 ,96 L.Ed.2d 385 (1987), we held that these provisions define the full extent of the federal court’s power to shift litigation costs absent express statutory authority to go further____ Crawford plainly requires as a prerequisite to reimbursement, the identification of “explicit statutory authorization.”
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Appropriate costs that may be taxed pursuant to
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 section 1923 of this title;
6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
1. Filing Fees
Plaintiffs’ bill of costs listed filing fees of $120.00 dated January 17,1990. As filing fees are clearly recoverable pursuant to
2. Long Distance Phone Charges
Plaintiffs’ bill of costs seeks $189.27 for long distance phone charges. Because
3. Telex/Telecopier/Telegrams
Plaintiffs’ bill of costs seeks $146.68 in telecopying charges. The court disallows plaintiffs’ telex/telecopying/telegram cost request because such costs are not provided for pursuant to
4. Posted/Express Mail
Plaintiffs seek $2.40 for postage dated June 16, 1990. Because postage and express mail costs are not provided for in
5. Messenger Service
Plaintiffs’ bill of costs seeks $367.73 for messenger service expenses.
6. Courier Service
Plaintiffs seek $222.01 in courier service costs. Because
Plaintiffs’ bill of costs seeks $562.50 for word processing charges. Plaintiffs’ requests for word processing charges are disallowed because
8. Secretary Overtime Charges
Plaintiffs seek $22.50 for overtime charges dated January 17, 1990. Because
9. Photocopies
Plaintiffs’ bill of costs lists $1,041.34 as recoverable photocopy charges. Plaintiffs’ July 13, 1990 request includes an entry for $237.60 which is listed as photocopy charges, and an entry of $2.50 which is listed as copies of documents. The court considers these entries to be the same because plaintiffs have provided no information that would dictate otherwise.
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A prevailing party may be reimbursed for the cost of photocopying attributable to discovery if the charges are for “copies of pleadings, correspondence, and other documents tendered to the [opposing party].” Fressell v. AT & T Technologies, Inc.,103 F.R.D. 111 , 115 (N.D.Ga. 1984). Charges for copies of exhibits and documents filed in support of motions, as well as copies of pleadings, memorandums and motions themselves, are also recoverable. Id. at 116. However, charges for copies of original documents possessed by the prevailing party are not taxable. American Key Corp. v. Cumberland Associates,102 F.R.D. 496 -99 (N.D.Ga.1984). Charges for extra copies and for documents prepared for convenience, preparation, research, or for the records of counsel are not taxable. Fressell,103 F.R.D. at 116 .
Fulton Federal Savings & Loan Association of Atlanta v. American Insur. Co.,
Plaintiffs have provided no information regarding the purpose or use of any of the photocopies made which plaintiffs seek to recover as costs. Therefore, these costs are disallowed. However, plaintiffs may renew their request to recover these costs by filing a supplemental bill of costs which provides information as to what types of documents were copied, who was in possession of the originals of these documents, what the purpose of copying these documents was, and why these copies were necessary for use in the case.
10. Outside Printing
Plaintiffs’ bill of costs seeks $2.00 for outside printing, dated November 8, 1990.
Plaintiffs’ bill of costs lists $298.20 in costs for the deposition of M. Moskovitz, dated July 13, 1990; and $25.00 for the failure to cancel the taking of a deposition in time, dated November 8, 1990.
Pursuant to
Because the court finds that the deposition of M. Moskovitz was properly taken within the bounds of discovery and, therefore, “necessarily obtained for use in the case,” the court finds this cost recoverable. Furthermore, given defendants’ repeated failure to show up for the taking of their depositions, plaintiffs will be able to recover the $25.00 cost for failure to cancel the taking of a deposition in time.
12. Electronic Research (CALR)
Plaintiffs’ bill of costs seeks $669.46 for LEXIS legal research. Because
Computer assisted legal research, like a number of the other items that have been disallowed, have traditionally been covered in office overhead. This court cannot recall ever seeing a lawyer endeavor to bill for the use of the firm library. With the advent of CALR, the court knows that some firms started billing for the use of the legal research tool. The court also knows that some clients insist on keeping the hourly rate down but are more lenient about being billed for various outjof-pocket expenses. The law has not, however, kept pace with the change. A partial remedy where attorney’s fees may be awarded is for lawyers, in their applications, to prove prevailing hourly rates charged by lawyers whose fees are inclusive of items traditionally thought to be a part of overhead. Here, the court will disallow the recovery of computer research fees.
III. CONCLUSION
Thus, defendant Kathy Faer Moskovitz’s motion for reconsideration of this court’s order granting default judgment on behalf of the plaintiffs [38-1] is hereby DENIED.
SO ORDERED.