The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
REPORT AND RECOMMENDATION
This case was referred to me for report and recommendation regarding the reasonableness of defendants' attorneys fees and costs. For the reasons stated herein, I recommend that the fee petition be paid in full.
On March 13, 2001, I issued a Report and Recommendation regarding Defendant Williams Mountain Coal Company's Motion for Award of Attorney's Fees [#102] and Defendant Augusta Processing's Motion to Tax Costs and for Attorneys' Fees [#103], in which I recommended that both be granted. On May 24, 2004, Judge Kollar-Kotelly adopted my Report and Recommendation in full, granting both motions, and providing a briefing scheduling regarding the reasonableness of the costs and fees requested by Williams Mountain Coal Company ("Williams") and Augusta Processing, Inc. ("Augusta").
Before the briefing on reasonableness was completed, plaintiffs filed a notice of their appeal of Judge Kollar-Kotelly's May 24, 2004 order. The court of appeals dismissed plaintiffs' appeal on the ground that the order granting attorneys' fees and costs was not a final appealable order. Holland v. Williams Mountain Coal Co., No. 04-7092 (D.C. Cir. Nov. 23, 2004). The parties' briefing regarding the reasonableness issue has since been completed and is now ready for consideration.
Counsel for Augusta filed a traditional fee petition, based on the affidavits of West Virginia counsel Charles L. Woody, and District of Columbia counsel, Mary Lou Smith, that indicates the work done by Augusta's attorneys and the number of hours or parts of hours it took to complete that work. The latter are multiplied by counsels' ordinary and then prevailing hourly rates to arrive at the fees sought. This multiplication results in fees sought by West Virginia Counsel, Spilman, Thomas and Battle, in the amount of $85, 982.87. In addition, West Virginia counsel seeks $8,065.06 in expenses. District of Columbia counsel, Howe, Anderson and Steyer, seeks $36, 819.14, representing both fees and expenses.
Plaintiffs object to the award of the fees sought by Augusta on four grounds: (1) Augusta seeks fees for work done on appeal and this Court has already indicated that such fees cannot be recovered in this Court, but rather, must be presented to the court of appeals pursuant to Federal Rule of Appellate Procedure 38;*fn1 (2) privileged or otherwise confidential information has been redacted from the detailed entries in the fee petition; (3) counsel for Augusta had the advantage of previously litigating a case that raised similar issues; (4) the billing records reflect several instances of attorney "overstaffing."
The first two objections have disappeared. Augusta's counsel has filed an amended fee petition with no redactions and has segregated out the time its attorneys spent pressing the appeal. Fees sought for time spent on appeal will be disallowed. This leaves only the objections based on the alleged advantage of having litigated a similar case and attorney "overstaffing."
As to the first, plaintiffs only assert that there are similarities between the two cases and that "[d]efendants' expenditure of time therefore appears unreasonable, given that they already fully briefed and litigated similar issues [in the other case]." Plaintiffs' Memorandum in Response to Defendants' Request for Attorneys Fees and Costs ("Pl.'s Mem.") at 5. However, plaintiffs fail to point to any entries whatsoever that reflect the allegedly unnecessary work, let alone provide an analysis of the entries that should be disallowed or discounted. Without knowing which entries plaintiffs believe reflect unnecessary work, it is impossible for me to even consider their objection. Plaintiffs surely cannot expect me to guess which entries supposedly reflect unnecessary work without any guidance from them.
Plaintiffs' "overstaffing" objection fares no better. According to plaintiffs, Augusta's fee petition reflects that counsel had two or three attorneys at "various hearings and depositions in this case." Pl.'s Mem. at 5. Plaintiffs point to two entries that allegedly reflect this "overstaffing" and state: "Such overstaffing is excessive, and Augusta's fee request should be reduced accordingly." Id. According to what? Ay, there's the rub.*fn2 Plaintiffs fail to point to any other instances of this alleged "two or three attorneys at various hearings and depositions," id., and suggest no methodology by which such instances can be ascertained, let alone whether the presence of more than one lawyer at a given event was excessive.
Moreover, the two instances of "overstaffing" to which plaintiffs point are two of dozens of entries and together represent total only a tiny percentage of the fees sought. Two bruised apples do not justify rejection of the entire crop when it arrives at a market and these two entries, even if they did indicate "overstaffing," do not justify any reduction in the fees sought, particularly because plaintiffs do not even deign to specify which entries, besides these two, they claim to constitute "overstaffing."
I fear that plaintiffs' objections to Augusta's fee petition were advanced merely to have something to say. But, the Supreme Court has directed that: "A request for attorney fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of fee." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Plaintiffs' counsel should have listened to that wise advice, stipulated to the reasonableness of the fees sought, and reserved their right to take an appeal from the Order awarding ...