Poll v Victor [2012] FMSC 33; 18 FSM Intrm. 402 (Pon. 2012) (7 September 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2010-002

FLETCHER POLL,
Plaintiff,

vs.

BENIDO VICTOR, JOLDEN J. JOHNNYBOY, JACK J. JACK, in their official capacities as a constituted AD HOC COMMITTEE, DIVISION OF PERSONNEL ADMINISTRATION, DEPARTMENT OF FINANCE AND ADMINISTRATION, HAISER HAINRICK, in his official capacity as PUBLIC AUDITOR, EMANUEL MORI, Chief Executive of the Federated States of Micronesia, and the GOVERNMENT OF THE FEDERATED STATES OF MICRONESIA,
Defendants.
_______________________________________________

ORDER GRANTING FEES AND COSTS

Dennis K. Yamase
Associate Justice

Decided: September 7, 2012

APPEARANCES:

For the Plaintiff: Salomon M. Saimon, Esq.

Micronesian Legal Services Corporation

P.O. Box 129

Kolonia, Pohnpei FM 96941

For the Defendants: Daniel Rescue, Jr., Esq.

Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

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HEADNOTES

Attorney's Fees - Court-Awarded - Statutory; Civil Rights; Costs
The civil rights statute provides that in an action brought under it, the court may award costs and reasonable attorney's fees to the prevailing party. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 404 (Pon. 2012).

Attorney's Fees - Court-Awarded - Statutory
The court determines what is a reasonable fee without reference to any fee agreement between the client and the attorney and without reference to what the attorney is actually paid. This determination is based on the customary fee in the locality in which the case is tried. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 404 (Pon. 2012).

Attorney's Fees - Court-Awarded - Statutory
$100 an hour rate is reasonable for an attorney's fee award in a civil rights case. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 404 (Pon. 2012).

Attorney's Fees - Court-Awarded - Statutory; Civil Rights
Since the FSM civil rights statute was patterned after U.S. civil rights statutes, the FSM Supreme Court may consider U.S. jurisprudence under 42 U.S.C. § 1nd § 1988 to helo help dete the the intended meaning of 11 F.S.M.C. 701(3) and governmental liability thereunder. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 404 (Pon. 2012).

u>Admrative Law; ; Attorney's Fees - Court-Awarded - Sd - Statutory; Civil Rights; Statutes - Construction
When the FSM civil rights statute is not as expansive as 42 U.S.C. § 1988 because it a an attornttorney's fee award only in an action brought under 11 F.S.M.C. 701(3) and when an "action" is a court case while a "proceeding" includes both adminisve and judicial proceedings, 11 F.S.M.C. 701(3) does not auot authorize the award of attorney's fees for administrative proceedings, even for administrative proceedings that were a prerequisite to a later court action (the exhaustion of administrative remedies requirement). It authorizes an attorney's fee award only for actions (court cases) brought under 11 F.S.M.C. 701(3). Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 405 (Pon. 2012).

Civil Procedure - Service; Costs
A successful process server's pay should not be dependent on a law firm's later litigation success. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 405 n.1 (Pon. 2012).

Costs
A service cost request has always been sufficient when the request included the attorney's affidavit plus a return of service in the record showing that someone other than the attorney's office performed the service even though the better practice would have been to also file receipts with the request rather than relying on the trial court to consult the record to see who performed the service. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 406 (Pon. 2012).

Civil Procedure - Service; Costs
Service of process costs will be allowed when the plaintiff's attorney's fee request states that his attorney reviewed the affidavits of service of the complaint on five named persons and on two national government offices and this corresponds to the $140 ($20 × 7 services of process) sought for service of the summons and complaint. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 406 (Pon. 2012).

Costs
When no explanation is made of why trial subpoenas were served twice but when it is apparent from the file that the duplicate service was necessitated by a change in the trial date after the first service was made, the full request for service of trial subpoenas will be allowed. Poll v. Victor, [2012] FMSC 33; 18 FSM Intrm. 402, 406 (Pon. 2012).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On April 10, 2012, the plaintiff, Fletcher Poll, having prevailed on a civil rights claim, submitted his request for attorney's fee and costs. Poll seeks $7,695 as attorney's fees (76.95 hours at $100 an hour) and $300 for service costs ($140 for service of process and $160 for trial subpoenas).

The defendants, in an April 30, 2012 response, objected to awarding Poll attorney's fees for the administrative proceeding (34.85 hours) that preceded this litigation and they objected to using an hourly rate of $100 instead of the approximately, by their calculations, $16 an hour that Micronesian Legal Services Corporation ("MLSC") paid its salaried employee who represented Poll. By the defendants' calculation the award should equal $673.60 (42.1 hours at $16 an hour). They also object to the service costs since, in their view, Poll has not justified those sums because he has not shown on whom and when those documents were served.

I. Attorney's Fees

A. Hourly Rate

Poll seeks for an attorney's fee award of $7,695. The civil rights statute provides that "[i]n an action brought under this section, the court may award costs and reasonable attorney's fees to the prevailing party." 11 F.S.M.C. 701(3). The defendants assert that, in this case, $100 an hour is not a reasonable attorney's fee because the attorney who represented Poll was a salaried MLSC employee who, they estimate, was paid about $16 an hour.

The court, however, determines what is a reasonable fee without reference to any fee agreement between the client and the attorney and without reference to what the attorney is actually paid. SeeBank of the FSM v. Truk Trading Co., [2009] FMSC 29; 16 FSM Intrm. 467, 471 (Chk. 2009); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2007] FMSC 39; 15 FSM Intrm. 53, 63, 65 n.4 (Yap 2007), rev'd on other grounds[2008] FMSC 53; , 16 FSM Intrm. 49 (App. 2008); AHPW, Inc. v. FSM, [2004] FMSC 33; 13 FSM Intrm. 36, 39 (Pon. 2004); Adams v. Island Homes Constr., Inc., [2004] FMSC 55; 12 FSM Intrm. 644, 647 (Pon. 2004); FSM Dev. Bank v. Kaminanga, [2004] FMSC 2; 12 FSM Intrm. 454, 455-56 (Chk. 2004). This determination is based on the customary fee in the locality in which the case is tried. Tolenoa v. Kosrae, [1987] FMSC 15; 3 FSM Intrm. 167, 173 (App. 1987). For instance, the successful civil rights litigant in Plais v. Panuelo, [1992] FMSC 10; 5 FSM Intrm. 319 (Pon. 1992), was represented by an MLSC attorney and the attorney fee award was set at $100 an hour to "reflect the prevailing rate of the FSM" without any reference to the MLSC attorney's actual pay. Id. at 322.

The court thus concludes that the requested $100 an hour rate is reasonable for an attorney's fee award in this case.

B. Attorney's Fees for Administrative Proceedings

The defendants also object to including in the fee award any amount for the MLSC attorney's work in the administrative proceeding before this litigation because Poll did not prevail on any of the claims that he raised before the ad hoc committee and only prevailed in court on a new claim that was not one of those appealed from the administrative process.

Since the FSM civil rights statute was patterned after U.S. civil rights statutes, the FSM Supreme Court may consider U.S. jurisprudence under 42 U.S.C. § 1983 and § 1988elo hetermine the intenintended meaning of 11 F.S.M.C. 701(3) and governmental liability thereunder. Carlos Etscheit Soap Co.cVey<17 FSM Intrm. 148, 150 n.2 (Pon. 2010); Sandy v. Mori, [2010] FMSC 13; 17 FSM Intrm. 92, 992, 96 n.36 n.3 (Chk. 2010); Robert v. Simina, [2006] FMSC 55; 14 FSM Intrm. 438, 443 n.1 (Chk. 2006); Annes v. Primo, [2006] FMSC 16; 14 FSM Intrm. 196, 206 n.6 (Pon. 2006); Estate of Mori v. Chuuk, [2001] FMSC 49; 10 FSM Intrm. 6, 13 (Chk. 2001). Under the U.S. statute, a fee award can include a prior administrative proceeding related to the civil rights action or one that was a prerequisite thereto. SeeNational Ass'n for the Advancement of Colored People v. Wilmington Med. Ctr., Inc., [1982] USCA3 1121; 689 F.2d 1161, 1170-71, reh'g denied, 693 F.2d 22 (3d Cir. 1982), cert. denied, 460 U.S. 1052 (1983). This is because the U.S. civil rights statute allows an attorney's fee award "[i]n any action or proceeding," 42 U.S.C. § 1988, and that language means that administrative and other proceedings are included. 689 F.2d at 1170; see alsoNew York Gaslight Club, Inc. v. Carey, [1980] USSC 108; 447 U.S. 54, 61-63[1980] USSC 108; , 100 S. Ct. 2024, 2029-30, 64 L. Ed.23, 732-33 (1980) ("use of e of the broadly inclusive disjunctive phrase 'action or proceeding' indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings"). But a U.S. statute that permitted an attorney fee award "only with respect to 'any action'" and that omitted "or proceeding" was carefully tailored to award fees only for court cases because that statute could only be enforced in court actions. Id. at 61, 100 S. Ct. at 2029-30, 64 L. Ed. 2d at 732.

The FSM statute is not as expansive as 42 U.S.C. § 1988. It allowattorney's fe's fee award only "[i]n an action brought under this section." 11 F.S.M.C. 701(3). An "action" is a court case, i>Black's Law Dictionary 32 (9th ed. 2009) ("[a] civil or criminal judicial proceeding"), w"), while a "proceeding" can be the "regular and orderly progression of a lawsuit" or it can be "[a]ny procedural means for seeking redress from a tribunal or agency," id. at 1324. The term "proceeding" thus includes both administrative and judicial proceedings. Accordingly, 11 F.S.M.C. 701(3) does not authorize the award of attorney's fees for administrative proceedings, even for administrative proceedings that were a prerequisite to a later court action (the exhaustion of administrative remedies requirement). It authorizes an attorney's fee award only for actions (court cases) brought under 11 F.S.M.C. 701(3).

Thus, even if the administrative proceedings were a prerequisite to Poll's later FSM Supreme Court civil action, and even if the relief actually obtained in the court action (back pay from the date of termination to the date of the ad hoc committee hearing) was part of the relief sought in the administrative proceeding (back pay plus reinstatement), 11 F.S.M.C. 701(3) does not authorize an attorney's fee award for those administrative proceedings.

C. Fee Award

Since none of the 42.1 hours requested for the attorney work on Poll's court case seems excessive, unnecessary, or redundant, those hours will be allowed. Accordingly, Poll will be granted an attorney's fee award only for those 42.1 hours of attorney work on the civil action - $4,210.

II. Costs

Poll also seeks $300 in service costs. Supporting this request is the process server's affidavit that MLSC still owes her $300 for the service costs.[1] The defendants object to these costs because Poll does not show on whom service was made or when.

The appellate division has noted that a service cost request "has always been sufficient when [the request] included . . . ttorneffidaviidavit plus plus a return of service in the record showing that someone other than the attorney's office performed the service . . . [even ]though tttebepractpractice wouve be also file receipeceipts wits with the request rather than relying on the trial court to consult the record to see who performed the ce .&. . ." Berman v. Pohnpei, 17 FSM7 FSM Intr Intrm. 360, 374 (App. 2011). The January 21, 2010 entry in Poll's attorney's fee request states that his MLSC attorney reviewed the affidavits of service of the complaint on five named persons and on two national government offices. This corresponds to the $140 ($20 × 7 services of process) sought for service of the summons and complaint.

The process server's affidavit also states that trial subpoenas were served on four named persons and that this service was effected twice, equaling eight subpoenas served at $20 each - $160. No explanation is made of why the subpoenas were served twice. However, it is apparent from the file that the duplicate service was necessitated by a change in the trial date after the first service was made. The full $160 request for service of trial subpoenas will therefore be allowed. Since the duplicate service is unexplained, only one service - $80 - will be allowed.

Accordingly, service costs of $300 are allowed.

III. Conclusion

Poll is awarded $4,210 in reasonable attorney's fees and $300 for service costs. The clerk shall enter an amended judgment in conformity with this order.

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^[1] The court finds somewhat unsettling the averments that MLSC still has not paid its process server for the service of the complaint and summons over two years ago and for service of the trial subpoenas about a year ago. One would expect a law firm to pay successful process servers promptly rather than have them wait for a post-judgment award, especially since MLSC cannot presume that it will prevail on every case it files or defends. A successful process server’s pay should not be dependent on a law firm’s later litigation success.