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JUDITH MAZUR, PETE LE IN (HE YORRE: RIAL COURT OF Whik VIRGAN Liste , DIVISTON OF Str. NIOMAS AND ST. JOIN ) : ) Plaintiff ) : ) CIVIL NO. 3690/1978 : ) ACTION POR DAML GES/EEBT ) SAUCHIALP, ) . Defendant ) ) SHAROT HEMORANDUM OPINION SUR APPETCATTON LOR COSTS AND ATTORNEY'S — Pits ac ir n L. NOLAN, bSO. Attorrey for PlaintifEé Post™ OFEIce Box 9-107 St. Thomas, Virgin Islands IVER A. STRIDIRON, ESO. Stridiron & Williams Attorneys Lor Defendant Pest: Office Rar OFdd St. Thomas, Virgin islands IRWIN J. S'YLVERLIGHT, JUDGE * Nate Le : ~/ This mumorandwun opinion is written in compliance with tie mandate of tlh.2 United States Court of Appeals for the Whird cu-- . cuit in Francois v. Francois, VI ; F.2d (979) After a bench trial of the captioned matter, this Court entered judgment for the total sum of $1,909.00 in favor of q Plainlilf anc against Relendant, and dismissed the belendant!. counterclaim. While it is true that Plaintif£ dig aot peavail as to ail Of her claims, there can be no serious Qisunite she was che prevailing party as that te:m is used in 5 VEC 541i). Plaintill seeks to leeve costs taxed gn the con Of Sthbaoe Mazur v. Beauchanp : Memorandum Opinion | Page Two : ; : and, in addition thereto, sceks award of an attorney's £ce in the |! sum of $4,020.00. In support of these requests, plaintiff's attorney has ‘submitted an "Affidavit for Costs and Attorney's | , ’ Fees." Defendant has, of course, objected to award of the amounts, l/s; . : eo. t foc t | sought. I_-— AWARD OF COSTS v | The £ile discloses that Plaintiff paid a fee of $15.00 fork. i filing of thé complaint and service of the summons upon Defendant.! | . 2 Clearly, this sum is recoverable.=’ The further sum of $18.00 is sought as reimbursement for cost of the transcript of Norton Levine's deposition. ‘the use of this deposition was mandated by the fact that Mr. Levine was about to leave the jurisdiction and i his testimony could be preserved only by this means. Accordingly, 3/ this expenditure is recoverable as costs. The sum of $30.00 is' sought as reimbursement of subpoena fees incurred by Plaintiff. ' 4/ ; This is also clearly recoverable. No real dispute is present regarding these items which total $63.00. i wae Plaintiff's counsel, with a copy to the Court, is further evidence of. the failure of counsel to adhere to the most basic rules of court. To the date of this writing, the i - Court has‘not received a pleading which sets forth the | specific objections which counsel wishes to raise. It is the duty of counsel to assist the court by calling all oad | a i 1 i * lf This objection, in the form of a letter addressed to | ? jections, as well as the reasons therefor, to its attention. 2/ 5 vic 541(a) (1). 3/ 5 VIC 541 (a) (2). ee wn < ial i) 541l(a) (1). oO. » costs. Mazur v. Beauchamp Memorandum Opinion Page Three . Plaintiff seeks reimbursement of the sum of $500.00 for "Monies deposited on case," as "costs." This sum appears to be . me the retainer-fee paid by Plaintiff to her attorney. It is clear- ly not a recoverable cost, except to the extent that an attorney's fee may be-awarded. It will be disallowed as a separate item of + Fy Finally, - Plaintiff asserts that the sum of $280.00 was expended as witness fees: $150.00 for James Green; $50.00 for a= 5 Peter Williams; and $80.00 for other witnesses. None of these witnesses were presented as experts, nor was there any pretrial re i oe ee application to the Court for allowance of witness fees as costs. See Tebbs_ v. Alcoa Steamship Co., 3 VI 186, 196, affirmed 3 VI 592 (1956): Even if they had been presented as experts, "... absent prior approval of the Court, or at least evidence as to the value and reasonableness of the fee charged by the expert, the Court will not summarily tax against a losing litigant the expenditures of prevailing counsel for expert testimony." QueLel Vv. Querrard, 6 VI 214, 216 (1968). FPurthermore, this Court has . found ngither statute nor court rule applicable to the Territorial G Court which provides for payment of any fixed witness foo. Accordingly, ‘this item will not be taxed as costs of this action. » IT — AWARD OF ATTORNEY'S FEES At tho outset, it should be noted that although reference 5/1 See Paragraph 4(d) of Affidavit for Costs and: Attorney's Fees filed by Plaintiff's attorney. ' 6/E Compare 5 VIC 660; 28 U.S.C.A. 1821, and Rule 45(c) F.R.C.P. as to the District Court. --: Mazur v. Beauchamp ' Memorandum Opinion Page Four ’ ‘ . | will be made in this Memorandum Opinion to “the Plaintif£," the comments herein are directed to Plaintiff's counsel, since it is Plaintiff's counsel that has made the request for fees, framed | the pleadings therefor, and submitted the affidavit in support thereof. |" ~ | eee the night follows the day with absolute predicta-— bility, so'does Plaintife's display of cupidity” follow the entry of judgment herein. Although this litigation involved several different claims, they may be categorized as (1) a claim on a contract for reim- bursement,'(2) a claim for assault and battery, and (3) a claim for destruction of certain personal property. Each claim is simple, involving no unusual or obscure rules of law. The facts ! as developed at trial were not remarkable or difficult of proof. Despite the uncomplicated nature of the case, Plaintiff has » claimed a‘ total of 67 hours of preparation and trial time. By way ,of example, the Court notes Plaintiff's claim of approximate ly 18 hours expended in interviewing the Plaintiff in preparation for" trial.2” In addition, approximately 8 more hours are claimed for interviewing witnesses. ‘This Court cannot con- | ceive of any reasonable necessity for the expenditure of 26 hours in interviews of Plaintiff and other witnesses. Furthermore, “ Plaintiff has asserted expenditures of time such as: 1/ "Strong desire, especially for wealth; avarice; greed) Webster's New World Dictionary of the American Language, Second College Edition, Page 346. 8/ . Affidavit for Costs and Attorney's Fees filed on behalf of | Plaintiff. Mazur v. Beauchitnyp Memorandum Opinion Page Five 7 "Preparation of amended complaint 3 [hours]" “Preparation Of letter to Iver A. Stridiron, Esq.. 1 [hour] " “Preparation and drafting of interrogatories ; 4 fhours]" This Court cannot accept as fact the expenditure of 8 hours for this work. It is, I believe, a gross overstatement of , the time actuatiy spent, or, in the alternative, the result of such ineptitude on the part of counsel as to remove the work from the realm of reasonably necessary services. If it is the former, appropriate adjustment should be made. IF it is the latter, surely the losing litigant should not be penalized by the lack of ability on the part of counsel. eee ee ee oe Over and above the shortcomings already mentioned, counsel © has applicd a simplistic mathematical formula consisting of the multiplication of the hours allegedly expended times the asserted hourly rate, to arrive at a request for an award of attorney's fees in the sum of $4,020.00, in a case where a judgment of $1,909.00 was obtained. Such an approach undercuts the spirit “Naeee tLe as well as the letter of the established guidelines. Judge Maris admonished us to remember that: "... The amount of attorney's fees to be awarded to the prevailing party is ... intended to be an indemiification ... for a fair and reasonalle portion of his attorney's fees incurred in the prosecution or defense of the action, and not the whole amount charged by the attorney." (Emphasis added.) Lucerne Investment Co. v. Estate Belvedere, Inc., 7 VI 242, 245: 411 F.2d 1205 (1969). In Lindy Bros. Bldrs. Inc. of Phila. v. American R& § San. Corp., 487 F.2d 161 (1973), and Estien v. Christian, 11 VI aae By ee 464, 507 F.2d 61 (1975), the factors to be considered were clearly Mazur v. Beauchamp Memorandum Opinion Page Six stated, and Francois, supra, restated them. This. case presents a classic picture of an even widening attitude adopted by the Bar with regard to the award of attorney 25% fees. 5 VIC 541 must not be. looked up as "the pot of gold at the end of the' rainbow" or as "the goose that lays the golden eggs." In the case at bar, this Court will allow no more than four|l ' hours as reasonable conference time with Plaintif£. Two hours “will be allowed for the preparation of the amended complaint, the correspondence referred to in counsel's affidavit, and the stipu- lation of counsel. One hour will be allowed for the drafting of interrogatories, and three hours will be allowed for research and trial preparation. An additional six hours will be allowed for ae eee eS es ee trial. this time constitutes, in the Court's view, a reasonable allocation of the time necessarily expended in this Litigation. ' Such elaiina as time spent in "viewing of scene of the incidents complained oF" are disallowed because counsel could not have reasonably ‘anticipated that such visting could. or would fave shed light on the subject matter of the Litigation. Wai ‘Ly ’ ! In total, 16 hours appear tobe, the maximum allowable ‘allocation of time and, when multiplied by the asserted hourly ' rate of $60.00, produces a,"lodestar" of $960.00. It cannot be . Said that any complexity existed in this litigation, either on the complaint or’ defense of the counterclaim, which would merit me me ee ee ee ee of Those factors were: "(1) the time spent by the attorneys, (2) valuation of the services performed, (3) the contin- gent nature of success, (4}-the quality of the attorney's work." + tae vt _ Much preparation time and even more trial time was expended in Mazur v. Beguchaimp Memorandum Opinion : Page Seven , ! . eee eee an increase in attorney's fees. On the other hand, it should have been apparent to counsel that certain -of the claims asserted, including but not limited to those contained in paragraphs 7(A) and 7({C)(e) of Count II of the 10/ amended complaint were dooned to total or near total defeat. asserting these dubious claims, and this fact would suggest a downward revision of the fee ultimately to be awarded. Finally, the Court, without intent to denigrate the ability of counsel, must state that the quality of counsel's work | cannot be classified as unusual, outstanding, innovative, or otherwise noteworthy. It can best be categorized as an adequate presentation of a non-complex matter. i Upon. consideration of Judge Maris' counsel in Lucerne investment, supra, and in view of the foregoing analysis, the Court concludes that the demand for an attorney's fee of $4,020.00 . . os . , ee in this cage is excessive and unsupportable, and evidences avarice, The over-exercise of the goose that lays the golden eggs has wf . - caused it to miscarry. A reasonable attorney's fee of $600.00 will be awarded to Plaintiff. - Done-:at Christiansted, St. Croix, this 10th day of August, | ‘ 1979.° 7 Pare we ~ - ier; Si Wl \ ar | alae \ Irwin J. Silverlight{ Judge. om NN 4 tae i 10/ When Plaintiff's insuror paid her automobile collision : claim and became subrogated to her rights, there was no way in which she, in her own right, could have recovered more, than the $100 deductible which she paid.