70 F.R.D. 588 | D.V.I. | 1976
MEMORANDUM OPINION AND ORDER SUPPLEMENTING THE MEMORANDUM OPINION FILED NOV. 4, 1975 BACKGROUND
On May 5, 1970, Vitex Manufacturing Company, Ltd. (hereinafter “VITEX”) commenced an action in the Dis
RECONSIDERATION OF JUDGMENT
Despite repeated demands by the plaintiff, defendant refused to refund any portion of the production taxes. Defendant also failed to process any appeal from the judgment which was entered on August 1, 1974. Whereupon VITEX filed a motion in the Form of Mandamus on July 18, 1975 seeking an Order from this Court directing defendant to comply with the aforesaid judgment. Apparently galvanized into action by the threat of a mandamus order, defendant filed a Fed. R. Civ. P. 60(b) Motion to Re-Open Judgment on the grounds that the Court lacked jurisdiction to entertain the action with respect to the last five years in question and that the statute of limitations barred an action for recovery of the production taxes during the first five year period. Briefs were filed by both sides and a hearing was held on September 24, 1975 at which time arguments of counsel were heard.
In a ruling entitled “Memorandum Opinion and Order”
CALCULATION OF REFUND
Since then, respective counsel have been unsuccessful in their endeavor to arrive at a figure representing the amount of production taxes paid for the September 13, 1961 to September 12, 1966 period. I have delayed entering judgment so far in hope that the parties could make the “difficult” calculations themselves. However, since they have been unable to agree upon just what was paid, the necessity of bringing this matter to an end compels me to make that determination for them based upon the exhibits admitted into evidence during the trial.
ATTORNEY’S FEES
Lastly, I reach the difficult questions of whether or not to allow attorney fees and, if so, the proper quantum. As opposed to the practice in England, the traditional “American Rule” is not to award counsel fees to the successful litigant in a civil action absent statutory authority to the contrary. (Alyeska Pipe Line Service Company v. Wilderness Society, 421 U.S. 240 (1975)). However, here in the Virgin Islands, 5 V.I.C. § 541(a) (6) permits the award of attorney fees as allowable costs. Nevertheless, the matter is entirely up to the discretion of the court (5 V.I.C. § 541(b)) and discretion includes the option of fixing reasonable fees or disallowing them in their entirety. (Smith v. Government of the Virgin Islands, 361 F.2d 469 (3rd Cir. 1966), Collins v. Government of the Virgin Islands, 366 F.2d 279 (3rd Cir. 1966), cert. den. 386 U.S. 958 (1967), Baptiste et al. v. Government of the Virgin Islands, Nos. 75-1330, 75-1744, 75-1468 (Decision by 3rd Cir. filed 1/9/76), and Mathurin et al. v. Government of the Virgin Islands, No. 75-1918 (Decision by 3rd Cir. filed on 1/14/76)).
First, the Court must inquire into the number of hours spent by the attorneys and to which various general activities the time was devoted. The mere statement that X number of hours were spent in connection with the litigation is insufficient to support an award of fees. (Lindy, supra, at p. 167 and Estien, supra, at p. 63.)
After “clocking” the services performed by the attorneys, the Court must attempt to value those services. The value of an attorney’s time is generally reflected in his normal billing rate for a particular activity. But this does not terminate the investigation, for the Court “cannot properly fix attorneys’ fees merely by multiplying the hourly-rate for each attorney by the number of hours he worked
The third factor is the contingent nature of success; compensation should be decreased the greater the likelihood of success and increased in the reverse situation.
Finally, the last consideration is the extent, if any, “to which the quality of an attorney’s work mandates increasing or decreasing the amount to which the Court has found the attorney reasonably entitled”. (Lindy at p. 168.) Quality, according to the Third Circuit, can be itself decomposed into three measurable components: (i) complexity and/or novelty of the issues presented; (ii) degree to which attorney’s skill deviates from the prevailing degree in the legal community of which he is a member; and (iii) amount of recovery obtained.
Having set out the Lindy standards, I must now apply them to the particular facts of this case. Although the information necessary to apply the above standards can be supplied by affidavits (Tranberg, supra, at p. 175) and despite the fact that a judge is presumed knowledgeable as to the fees charged by and quality of work exhibited by attorneys in general (Lindy at p. 169), I find that plaintiff’s counsel’s affidavit is of little help to my determination. There is but a brief statement that there was expended 120 hours on this matter. Nowhere is this broken down into pre-trial, trial, or post-trial segments. There is no accounting for time spent in drafting pleadings, in research, in pre-trial discovery, in pursuit of settlement, in preparation for trial, etc. There is no itemization as to whether these 120 hours were spent solely by the senior partner or by his junior partners or employed associates. There is no indication of the usual billing rate nor whether the firm has different rates depending upon the activities performed. In fairness to counsel, his affidavit is not vastly different
[U]nless time spent and skill displayed be used as a constant check on applications for fees there is a grave danger that the bar and bench will be brought into disrepute----
Passing on to the last two factors mentioned in Lindy— contingency of success and quality of work — I am compelled to make several unflattering observations. First, had plaintiff by its then retained attorneys instituted this action seven years ago instead of waiting, the issues presented would not have become as muddied as they did. Second, the mere statement that the evolvement of the case was confusing (necessitating three Memorandum Opinions so far) does not mean that the issues were complex. There was but one issue and it was quite straight-forward: the relationship between the Industrial Incentive Act and the Production Tax Act. The post-trial arguments re: subject matter jurisdiction and statute of limitations arose only because plaintiff’s then existing counsel neglected to file his client’s claims for refunds promptly and properly.
Third, despite sometimes ingenious and sometimes devious endeavors by the government’s various legal representatives over the years to throw up smokescreens, plaintiff’s present trial counsel ought to have foreseen, being an able and experienced attorney for whom I have the highest professional respect, that he had a “sure” winner. Even the government’s next-to-last trial counsel so admitted but confided to plaintiff’s attorney and to the Court that he had to persist in his tenuous position on account of the government’s obduracy. And lastly, the size of the recovery cannot be considered under the instant circumstances because more than one-half of the total recovery consists of inter
In view of these considerations, I am limiting plaintiff to an award of $5,000.00 in attorney’s fees. Since plaintiff has not submitted a Bill of Costs, this award of $5,000.00 is intended to cover the same as well as attorney’s fees.