Warren v Pohnpei State Department of Public Safety [2005] FMSC 51; 13 FSM Intrm. 524 (Pon. 2005) (30 November 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Warren v Pohnpei States Department of Public Safety, [2005] FMSC 51; 13 FSM Intrm 524 (Pon 2005)

GIBSON WARREN,
Plaintiff,

vs.

POHNPEI STATE DEPARTMENT OF PUBLIC
SAFETY, and the GOVERNMENT OF THE
STATE OF POHNPEI,
Defendants.

CIVIL ACTION NO. 2001-049

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: November 30, 2005

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants:
Leonito M. Bacalando, Jr., Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney and Client - Fees; Civil Rights
A contingency fee agreement in a civil rights case acts as neither a floor nor a ceiling on attorney’s fees awarded under the statute. Such a rule serves the purpose of helping to insure that an attorney will not be undercompensated where important civil rights have been vindicated, and increases the likelihood that a plaintiff who has a meritorious claim will have access to the courts. Warren v. Pohnpei State Dep’t of Public Safety[2005] FMSC 51; , 13 FSM Intrm. 524, 526 (Pon. 2005).

Attorney and Client - Fees; Civil Rights
An hourly rate of $120 is a reasonable hourly rate for trial time in civil rights action, and a rate of $100 per hour is a reasonable hourly rate for the out-of-courtroom time in a civil rights case. Warren v. Pohnpei State Dep’t of Public Safety[2005] FMSC 51; , 13 FSM Intrm. 524, 526 (Pon. 2005).

Attorney and Client - Fees; Civil Rights
When, in a civil rights case had all of the plaintiff’s witnesses been deposed in advance of trial, the trial time would have been shortened, since the questioning of the plaintiff’s undeposed witnesses was conducted in the manner of a discovery deposition, the court will estimate the reduction in trial time at 20 percent, and will treat 20 percent of the court time as research time that could have been spent deposing witnesses and award the research rate of $100 an hour for that time instead of the $120 an hour rate for trial time. Warren v. Pohnpei State Dep’t of Public Safety[2005] FMSC 51; , 13 FSM Intrm. 524, 526-27 (Pon. 2005).

Costs
When a successful litigant has made no showing that the $120 in copying costs he seeks were expenses incurred for copying done outside of counsel’s office, this item of costs will be denied. Warren v. Pohnpei State Dep’t of Public Safety[2005] FMSC 51; , 13 FSM Intrm. 524, 527 (Pon. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

On October 31, 2005, judgment in this civil rights action under 11 F.S.M.C. 701 et seq. was entered in favor of the plaintiff Warren Gibson jointly and severally against the defendants (collectively "Pohnpei") in the amount of $4,985.00. On November 14, 2005, Warren submitted his motion for attorney’s fees and costs pursuant to 11 F.S.M.C. 701(3), which provides for costs and attorney’s fees to the prevailing party in a civil rights action. He seeks attorney’s fees computed on an hourly basis. For attorney Steve Finnen, the fees sought total $15,635.00, which represents 15.5 hours of research time at $100.00 per hour ($1,550.00), and 93.90 hours of court time at $150.00 per hour ($14,085.00). For Warren’s former counsel, Salomon Saimon, the fees sought total $1,840.00, which represents 18.40 hours of research time at $100.00 per hour. Warren asks for costs totaling $1,721.75, which represents $76.75 for deposition costs; $1,375 for translation costs; $150.00 for service costs; and $120.00 for photocopying costs.

For the reasons that follow, Warren is awarded attorney’s fees of $13,600.00 and costs of $1,601.75, for a total of $15,201.75.

Pohnpei’s central objection to the fees Warren requests is that Warren had entered into a one-third contingent fee agreement with his counsel. One-third of the judgment amount is $1,661.67 (Pohnpei incorrectly calculates this amount as $1,645.05). Pohnpei acknowledges that a fee of this amount would be conservative, but at the same time urge that the fees sought by Warren are excessive. Pohnpei also asserts that the affidavit in support of Warren’s fee request is "very summary" and not in compliance with the specificity required by Jackson v. George, [2002] FMKSC 1; 10 FSM Intrm. 523, 527 (Kos. S. Ct. Tr. 2002). While additional descriptive information would have been useful, the court finds the affidavit to be minimally sufficient.

A contingency fee agreement in a civil rights case acts as neither a floor nor a ceiling on attorney’s fees awarded under the statute. Herman v. Municipality of Patta, [2003] FMSC 66; 12 FSM Intrm. 130, 137 (awarding attorney’s fees of $9,288 for 77.4 hours at $120 an hour where damages were $33,000 for the civil rights claim and $31,225 for wrongful death (total of $64,225) and plaintiffs had retained counsel on a one-third contingency basis); Sanchez v. Schwartz, [1982] USCA7 711; 688 F.2d 503, 505 n.7, 507 (7th Cir. 1982) (reduction of $9,200.00 by appellate court of attorney’s fees computed on hourly basis of $46,406.25 where the amount computed under the applicable one-third contingency fee agreement would have been $17,350.00). Such a rule serves the purpose of helping to insure that an attorney will not be undercompensated where important civil rights have been vindicated, and increases the likelihood that a plaintiff who has a meritorious claim will have access to the courts. Id. at 505. The court will review the hour-based fees sought to determine their reasonableness.

Pursuant to Pohnpei S.L. No. 2L-192-91, Warren seeks an hourly rate of $150 for court time. An hourly rate of $120 per hour has been held to be reasonable in Chuuk where the legal work was of high quality, the case presented complex issues, and the relief sought was obtained. Udot Municipality v. FSM, [2002] FMSC 2; 10 FSM Intrm. 498, 500 (Chk. 2002). The same hourly rate of $120 was awarded in Herman, which like the instant case was a civil rights action. The court finds $120 an hour to be a reasonable hourly rate for trial time here. Warren also seeks $100 for research time, or more accurately, time expended by his counsel on this case outside the courtroom. While FSM cases do not appear to discuss separate hourly rates for these two categories of time, the court finds that $100 per hour is a reasonable hourly rate for the out-of-courtroom time in this case.

Warren requests 93.90 hours of court time, but included in this figure is trial preparation time. The court will award the $120 hourly rate only for time spent in the courtroom. This determination cannot be precise, since for trial days counsel shows a single entry for both preparation and trial attendance. The court will treat as court time the full amount of hours indicated on the notation for each of the six trial days (April 28-29, and July 25-28, 2005). The hours for these days total 51.3. However, had all of Warren’s witnesses been deposed in advance of trial, the trial time would have been shortened, since the questioning of Warren’s undeposed witnesses was conducted in the manner of a discovery deposition. The court estimates the reduction in trial time at 20 percent, and will treat 20 percent of the court time, or 10.3 hour, as research time that could have been spent deposing Warren’s witnesses. Taking this into account, the court finds that the total of 109.4 hours sought by Finnen is reasonable. In sum, for Finnen the court awards 41 hours of court time at $120.00 an hour, or $4,920.00, and 68.4 hours at the research rate of $100.00 an hour, or $6,840.00, for a total for Finnen of $11,760. The total for Salomon Saimon is 18.4 hours of research time at $100.00, or $1,840.00. The court finds the time sought by Saimon to be reasonable. Total attorney fees awarded are $13,600.00.

Warren is awarded service of process costs of $150; deposition expenses of $76.75, and translation costs of $1,375, for total costs of $1,601.75. Warren seeks copying costs of $120.00, but has made no showing that these expenses were incurred for copying done outside of counsel’s office, and this item of costs is denied. Damarlane v. United States, [1997] FMSC 33; 8 FSM Intrm. 45, 54 (App. 1997).

An award of fees and costs issues herewith.

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