USA – FEDERAL – FREIER – 1997 (Attorneys fees and costs) FREIER v FREIER. The court awards fees and costs in the amount of $15,727.07 to Plaintiff
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Freier v Freier (E.D.Mich 1997)985 F.Supp. 710
13 International Abduction [USA 1997]
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Plaintiff: Jonathan M. Freier
v
Defendant: Judith D. Freier
15 Jul 1997
<* page 711>
MEMORANDUM, OPINION AND ORDER
RE ATTORNEY FEES AND COSTS
HOOD, District Judge.
I. INTRODUCTION.
001 This matter is before the Court on Plaintiff Jonathan
M. Freier’s Motion for Hearing to Approve Awarded Fees,
Costs and Transportation Expenses, which the Court will
consider as a Motion to Approve Awarded Fees, Costs and
Transportation Expenses. FN01 A response and reply were
filed. The Court previously entered an Order on October 4,
1996 awarding Plaintiff attorney fees and costs, including
any additional transportation costs incurred by Plaintiff
pursuant to, the Internationd Child Abduction Remedies Act
(“ICARA”), 42 U.S.C. 11607(b)(3). FN02 Plaintiff
requests attorney fees and costs in the amount of
$30,656.59.
II. ANALYSIS.
A. Attorney Fees.
002 The Act, pursuant to 42 U.S.C. 11601(b)(3), provides
for the following:
<* page 712>
(3) Any court ordering the return of a child pursuant to an
action brought under section 11603 of this title shall order
the respondent to pay necessary expenses incurred by or on
behalf of the petitioner, including court costs, legal fees,
foster home or other care during the course of proceedings
in the action, and transportation costs related to the
return of the child, unless the respondent establishes that
such order would be clearly inappropriate.
003 The Sixth Cireuit requires that the district court
“make clear and adequate findings of fact” when determining
reasonable attorrey fees. Northcross v. Board of Education
of the Memphis City Schools, 611 F.2d 624, 636 (6th
Cir.1979). It is well settled that the “lodestar” approach
is the proper method for determining the amount of
reasonable attorneys’ fees. Hensley v. Eckerhart, 461 U.S.
424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Davis v. Mutual
Life Ins. Co., 6 F.3d 367, 380 (6th Cir.1993). Applying the
lodestar approach, the most useful starting point is the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. Id. There is a
strong presumption that this lodestar figure represents a
reasonable fee. 1d. However, there remain other
considerations that may lead the district court to adjust
the fee upward or downward. The district court has the
discretion to reduce the award. Hensley, 461 U.S. at 437,
103 S.Ct. at 1941. The hours claimed need not be
automatically accepted by the district court. Northcross,
611 F.2d at 636. Hours, may be cut for duplication, padding
or frivolous claims. Id. In complicated cases, involving
many lawyers, deducting a small percentage of thetotal hours
may be used to eliminate duplication of services. Id. The
district court must base its decision on the affidavits of
counsel along with supporting documents including an
accurate summary of contemporaneous time records with dates,
number of hours expended, by whom, and a specific
explanation of the action taken. Id.
004 Here, Plaintiffs attorney submitted an affidavit
detailing the hours spent on the matter. Plaintiff requests
attorney fees in the amount of $12,112.50,(80.75 hours X
$150.00 per hour). The Court finds that the 80.75 hours
requested by Plaintiff is reasonable. The Court further
finds that the hourly rate of $150.00 is within the rate
“prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation.”
Hadix v. Johnson, 65 F.3d 532, 536 (1995).
005 Plaintiff also requests a clerks fee in the amount of
$360.00 (9 hours x $40.00 per hour). Generally, a party is
not entitled to recover expenses that are merely incident to
the preparation of cases and are part of office overhead.
McMillan v. United States, 891 F.Supp. 408, 415-416
(W.D.Mich.1995); Knop v. Johnson, 712 F.Supp. 571, 588
(W.D.Mich.1989). The Sixth Circuit has held that paralegal
fees are compensable in fee shifting statutes. Northcross,
supra, 611 F.2d at 639. Here, Plaintiff has not submitted
any authority to support the requested fee for a clerk. The
affidavit filed by Plaintiffs attorney does not indicate
specifically what services the clerk performed, other than
.25 hours on August 27, 1996 for legal research. A review
of the affidavit indicates that some of the clerk’s services
appear to be hours spent picking up from and delivering
items to the courts, libraries, and opposing counsel’s
office. The Court declines to award attorney fees for
services rendered by a clerk because: 1) there is no
authority to compensate a clerk’s services; and 2) the
clerk’s time appears to be ministerial and incidental to the
preparation of the case.
B. Costs.
006 Plaintiff requests costs in the amount of $2,208.96.
A summary of Plaintiffs costs is outlined in the affidavit
submitted by Jan Rewers McMillan. (Ex. B, Plaintiffs brief).
Rule 54(d) of the Federal Rules of Civil Procedure provides
for an award of costs “to the prevailing party unless the
court otherwise directs.” Fed.R.Civ P. 54(d). Recoverable
costs as defined in 28 U.S.C. 1920, LR 54.1 of the Eastern
District of hfichigan and the Bill of Costs Handbook
include:
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;
<* page 713>
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.
28 U.S.C. 1920. Title 28 U.S.C. 1821(b) limits witness
fees authorized by 1920(3). Crawford Fitting Co. v. J.T
Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385
(1987). The district court may decline to award the costs
listed in the statute but may not award costs omitted from
the Est. Crawford Fitting at 442, 107 S.Ct. at 2497-98.
1. Fees of the clerk.
007 The Court finds that Plaintiffs request for filing
fees in the amount of $120.00 is proper under 28 U.S.C.
1920(l) and 1923. The Court will not allow fees paid to the
Clerk of Oakland County since a fee to a state court clerk
is not authorized under 1920.
2. Fees of the marshal/private process serifice.
008 The Court finds that Plaintiffs request for fees of
the process server under 28 U.S.C. 192(1) in the total
amount of $33.00 is proper.
3. Fees for printing and copies.
009 28 U.S.C. 1920(3) and (4) provide for printing
expenses, and copies of papers “necessarily obtained for use
in the case.” Photocopying costs have been allowed as costs
to the extent that the copies are used as court exhibits or
were furnished to the court or the opposing counsel.
McMilian, supra, 891 F.Supp. at 415. Money spent to copy
documents for the litigant’s own use are not recoverable. Id
010 Here, Plaintiff did not outline the costs for copies
separately from faxes and telephone expenses for the month
of August and September, Plaintiff aid separately list
copies made at the bar library ($10.25), Lopez Reproductions
($34.89) and miscellaneous copies ($83.13). The Court
assumes that the copies for the month of August and
September included copy expenses for copies submitted to the
Court and to opposing counsel. The Court will allow the copy
expenses for the month of August and September pursuant to
1920(3) and (4) as reasonable photocopying costs under
Northeross. 611 F.2d at 639. As to the copy expenses
incurred at the bar library, Lopez Reproductions and
miscellaneous copies, the Court will not allow those
expenses because Plaintiff has not demonstrated that these
copies were made other than for the litigant’s own use which
are not recoverable pursuant to McMillan.
C. Other Costs.
1. Faxes/Phone.
011 Reasonable telephone costs are recoverable under a fee
shifting statute. Northeross, supra, 611 F.2d at 639. The
Court will allow Plaintiffs request for fax and telephone
costs.
2. Worldwide Interpreters.
012 Plaintiff requests costs for Worldwide Interpreters in
the amount of $930.00. Plaintiff does not indicate what the
costs are for. In any event, because the interpreters were
not court appointed, the requested interpreters’ cost is not
recoverable. 28 U.S.C. 1920(6).
3. Dr. Dov Frimer’s Fees and Costs.
013 Dr. Dov I. Frimer is an Advocate before the Israel Bar
Association, licensed to practice law in the state of New
York and is affiliated with the American Academy of
Matrimonial Lawyers. Dr. Frimer wrote an eleven page
handwritten letter concerning Israeli law which was
submitted to the Court mdth a copy given to Defendant.
Plaintiff claims that the fees incurred relative to the
services of Dr. Frimer were for consultation. (Plaintiff’s
May 13, 1997 Reply brief). Dr. Frimer represents Plaintiff
before the Rabbinical Court for Israel. (Ex. (B)(2),
Plaintiffs brief). Defendant objects to Plaintiffs requested
costs and fees for the services of Dr. Primer in the amount
of $13,235.63.
<* page 714>
014 The Court finds that Plaintiff is not entitled to
recover the fees and costs incurred by Dr. Frimer. Dr.
Frimer did not represent Plaintiff in the instant action
before this Court. There is no showing that Dr. Frimer is
admitted to practice in the State of Michigan or before this
Court. Plaintiff has not submitted any authority which
allows this Court to award fees and costs incurred by an
attorney who does not represent a party in an action before
the Court.
015 Inasmuch as Dr. Frimer is considered a consultant to
Plaintiffs attorney, consultation costs are not allowed
under a fee shifting statute or 1920. Birth Control
Centers, Inc. v. Reizen, 652 F.Supp. 192, 197
(E.D.Mich.1986).
016 Dr. Frimer may be considered an expert witness on
Israeli law in this matter. 28 U.S.C. 1821(b) and 1920(3)
allow for taxation of witness fees for witnesses who
testified at trial. Here, Dr. Frimer did not appear in
person before the Court to testify at a trial or hearing.
There is no authority allowing a prevailing party to recover
expert witness fees of a witness who did not testify at
trial. Plaintiff is not entitled to Dr. Frimer’s fees and
costs.
4. Transportation Costs.
017 Plaintiff requests transportation costs incurred by
Plaintiff in the amount of $2,739.50. Plaintiff submitted
supporting documents with his request for transportation
costs. The Court notes that there was a calculation error in
Plaintiffs request for transportation costs. The proper
amount is calculated as follows:
Airfare for Jonathan and Avital
Freier to Israel: $1,668.50
Airfare for Jonathan Freier to Detroit: 1,471.00
Total 3,139.50
018 The Court recalls that the child’s original return
ticket to Israel was transferable and that no new costs for
Avital’s transportation would be incurred. The Court will
reduce the requested amount by $717.50, the amount Plaintiff
paid for Avital’s second ticket back to Israel, making the
requested amount to be $2,422.00.
019 42 U.S.C. 11607(b)(3) specifically states that the
prevailing party is entitled to “transportation costs
related to the return of the child.” The Court finds that
Plaintiffs requested transportation cost in the amount of
$2,422.00 was related to Plaintiffs action to return the
child to Israel. Plaintiff is entitled to transportation
costs in the amount of $2,422.00
III. CONCLUSION.
020 For the reasons set forth above, the Court will award
Plaintiff the following fees and costs:
Attorney fees for services by Ms. McMillan $12,112.50
Copies,/Faxes/Phone for 8/96 114.20
Copies/Faxes/Phone for 9/96 435.00
MCI-long distance 9/16/96 268.59
MCI-long distance 10/8/96 148.65
Sprint-long distance 83.13
Filing fee 120.00
Process Server 33.00
Transportation 2,422.00
Total $15,727.07
Accordingly,
021 IT IS ORDERED that Plaintiffs Motion for Hearing to
Approve Awarded Fees, Costs and Transportation Expenses,
considered by the Court as a Motion to Approve Awarded Fees,
Costs and Transportation Expenses (Docket No. 24) is GRANTED
pursuant to 42 U.S.C. 11607(b)(3) and 28 U.S.C. 1920 in
the amount of $15,737.07.
——————–
1. A hearing is not needed to determine attorney fees and
costs which was previously granted by the Court.
2. There is a typographical error on p. 18 in the Court’s
October 4, 1996 order. The Court awarded fees and costs
to Plaintiff and not Defendant.