United States District Court, D. Rhode Island
SUPPLEMENT TO REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN United States Magistrate Judge.
In my
report and recommendation of September 13, 2019, (ECF No.
42), I found that Plaintiff is the prevailing party on the
underlying motion to reopen and that Section 12 of the
Settlement Agreement and Abdullah v. Evolve Bank &
Tr., No. CA 14-131 S, 2015 WL 4603229, at *4-5 (D.R.I.
July 29, 2015), establish independent bases for awarding
Plaintiff a reasonable attorneys' fee. To complete my
recommendation to the District Court by including a
recommendation of a specific fee award, I directed Plaintiff
to file a motion for attorneys' fees and expenses, which
she did on September 23, 2019. ECF No. 45. In response,
Defendants objected vigorously to the antecedent
recommendation that fees should be awarded, which objection
(among others) is now pending before the District Court.
Otherwise, except for the expense discussed below, Defendants
stipulated that the fees requested - $23, 357 - are fair and
reasonable and that the work performed was necessary in
relation to the motion to reopen. Based on this stipulation,
and on my review of Plaintiff's motion, I so find.
Defendants
challenge the expense based on the charge for the work of
Mark Russo, the independent attorney who examined the billing
records of Plaintiff's counsel and opined on the
reasonableness of the hourly rates, as well as on the
reasonableness and necessity of the total time spent by
various professionals in Mr. Indeglia's office. In all,
Mr. Russo charged $3, 500 for the work required to complete
the review that he summarized in his affidavit. Mr.
Russo's detailed analysis is more than sufficient to meet
the standard for an opinion from an independent attorney
regarding “what is a reasonable charge for legal
services rendered” as required by the Rhode Island
Supreme Court in Tri-Town Constr. Co. v. Commerce Park
Assoc. 12, LLC, 139 A.3d 467, 479-80 (R.I. 2016).
Defendants argue that the Russo affidavit is not a necessary
charge because they have not disputed the reasonableness of
the fees sought by Plaintiff's counsel; if asked, they
say, they would have advised that they do not wish to bicker
with his invoice. However, Defendants have presented nothing
to suggest that they advised Plaintiff's counsel of their
willingness to consider consenting to his fees sufficiently
in advance to render the Russo affidavit unnecessary. In
addition, Defendants take issue with the reasonableness of
Mr. Russo's charge because it is a flat fee that does not
reflect actual work performed.
Defendants
do not cite and the Court was unable to find any authority
setting forth bright-line rules on charging for the work done
by an independent attorney opining to the reasonableness of a
fee application and the necessity for the work performed,
although there are cases suggesting that such affidavits are
customarily done as a courtesy with no charge. However, these
are also decisions that criticized the proffered affidavit as
unhelpful or the overall application as excessive. See In
re Johnson & Johnson Derivative Litig.,
10-2033(FLW), 2013 WL 11228425, at *56 (D.N.J. June 13,
2013), adopted, Civil Action Nos. 10-2033 (FLW),
11-4993(FLW), 11-2511(FLW), 2013 WL 6163858 (D.N.J. Nov. 25,
2013) (“This sort of affidavit might properly be
characterized by a reviewing court as one given out of
courtesy, but provides little or no evidentiary support for
an award.”); Duncan v. Golden Rod Broilers,
Inc., Civil Action No. 06-S-1076-NE, 2008 WL 11422446,
at *2-3 (N.D. Ala. July 22, 2008) (“Never before has
the court encountered a situation in which the attorneys who
offer affidavits in support of a fee petition bill the movant
for the service, whereupon the movant then attempts to pass
that cost along to the opposing party . . . . [T]he court
firmly believes that he could have acquired such an affidavit
free of charge from attorneys who were already familiar with
his reputation, and who would not need to devote time to
familiarizing themselves with his background.”).
The
Court is reluctant to set a precedent appearing to mandate
that a costly affidavit must accompany every fee petition,
driving up the overall cost of litigation. While an affidavit
from an independent attorney is necessary under Tri-Town
Constr., 139 A.3d at 479-80, it may not be necessary for
it to be as thoughtful and thorough as the analysis supplied
by Mr. Russo. If available, an affidavit supplied as a
courtesy would be preferable; it also would have been
preferable to ask opposing counsel what aspect of the fee
petition would be disputed, which would inform what sort of
opinion (and what cost) is truly necessary. Nevertheless, in
the circumstances of this intensely litigated case, the Court
is also reluctant to hold that Plaintiff's counsel was
obligated to have the fee application prescreened with
Defendants before procuring a supporting affidavit.
Based
on the foregoing, I recommend a compromise: because the Russo
affidavit was useful to the Court and clearly involved a
substantial investment of time, I find that a charge for its
preparation is reasonable and necessary. However, in light of
the considerations set forth above, I also recommend that the
charge for the affidavit be cut by 50%.
In
conclusion, I hereby supplement the recommendation of
September 13, 2019, as follows: I recommend that the Court
award Plaintiff attorneys' fees of $23, 357 and expenses
of $1, 750, for a total award of $25, 107. I further
recommend that the Court permit Plaintiff to make a motion to
seek an additional and final award to cover fees and expenses
incurred hereafter as she continues to litigate the issues
raised by the motion to reopen to conclusion.
Any
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days of its receipt. See
Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d). Failure to file
specific objections in a timely manner constitutes waiver of
the right to review by the district judge and the right to
appeal the Court's decision. See United States v.
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