Hall et al v. Hall et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
ELSA HALL as PERSONAL
REPRESENTATIVE of the ESTATE OF
ETHLYN LOUISE HALL, and ELSA
HALL as TRUSTEE of the ETHLYN
LOUISE HALL FAMILY TRUST,
Plaintiff,
v.
SAMUEL H. HALL, Jr. and HALL &
GRIFFITH, P.C.,
Defendants.
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) Civil No. 2011-54
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SAMUEL H. HALL, Jr.,
Plaintiff,
v.
ELSA HALL,
Defendant.
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) Civil No. 2013-95
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ATTORNEYS:
Andrew C. Simpson, Esq.
Emily A. Shoup, Esq.
Law Offices of Andrew Simpson
St. Croix, U.S.V.I.
For Elsa Emily Hall in her representative capacity and as
trustee.
Carl A. Beckstedt, III, Esq.
Beckstedt and Associate
St. Thomas, U.S.V.I.
For Elsa Emily Hall in her personal capacity.
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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Robert L. King, Esq.
Law Offices of Robert L. King
St. Thomas, U.S.V.I.
For Samuel Hall and Hall and Griffith, PC.
Marie E. Thomas-Griffith, Esq.
Hall & Griffith, P.C., PC.
St. Thomas, U.S.V.I.
For Samuel Hall and Hall and Griffith, PC.
ORDER
GÓMEZ, J.
Before the Court is the second amended motion of Samuel
Hall and Hall & Griffith, P.C., for costs.
I. FACTUAL AND PROCEDURAL HISTORY
On May 9, 2011, Ethlyn Hall, individually and as Trustee of
the Ethlyn Louise Hall Family Trust (the “Trust”), filed a
complaint against Samuel Hall and his law firm, Hall and
Griffith, P.C., (the “Samuel Hall defendants”) in Civil No. 11-
54 (the “Trust Action”). The complaint raised claims for breach
of fiduciary duty and fraud. Ethlyn Hall passed away after the
Trust Action commenced. One of her daughters, Elsa Hall,
continued the action as the personal representative of the
estate.
Samuel Hall then filed a nine-count counter-claim against
the Trustee in the Trust Action. He also filed a nine-count
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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complaint against Elsa Hall in her personal capacity (“Elsa
Hall”) in Civil No. 2013-95 (the “Samuel Hall Action”).
On February 14, 2014, the Trust Action and the Samuel Hall
Action were consolidated. Prior to trial, the Court dismissed
Samuel Hall’s counterclaims in the Trust Action.
In January, 2015, the Trust Action and the Samuel Hall
Action were tried before a jury. The jury rendered a verdict in
favor of Samuel Hall and Hall & Griffith, P.C., in the Trust
Action. In a judgment entered on February 4, 2015, the Court
dismissed the Trust Action on the merits.
On March 4, 2015, the Samuel Hall defendants moved for
attorney’s fees and costs. On March 30, 2016, the Court entered
an order on that motion.
With respect to attorney’s fees, the Court denied the
motion as untimely because more than 28 days had passed between
the entry of judgment and filing of the motion. The Court held
that the motion for costs was timely. However, “the costs
demanded [were] not distributed between the Trust Action and the
Samuel Hall Action.” Civ. No. 2011-54, ECF No. 452 at 26. As
such, the Court was unable to “determin[e] whether the costs are
better attributed to the Trust Action or the Samuel Hall
Action.” Id. Accordingly, the Court denied the motion for costs.
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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The Court granted the Samuel Hall defendants leave to file an
amended bill of costs in the Trust Action no later than April
11, 2016.
On April 11, 2016, the Samuel Hall defendants filed an
amended motion for costs. The motion asserted that the Samuel
Hall defendants were entitled to an award of $27,844.25 in costs
in the Trust Action. In support of the motion, the Samuel Hall
defendants attached a list of charges that the motion asserted
were either (1) costs “solely related to the Trust Action”; or
(2) a 70% assessment of costs related to both actions. See Civ.
No. 2011-54, ECF No. 456 at 2.
The Court referred the amended motion for costs to the
Magistrate Judge. On March 24, 2017, the Magistrate issued a
Report and Recommendation. The Magistrate Judge found that the
Samuel Hall defendants “failed to provide any competent evidence
to support their allocation of costs between [the Trust Action]
and the Samuel Hall Action.” Civ. No. 2011-54, ECF No. 461 at 3.
Further, Elsa Hall’s opposition to the amended motion of costs
pointed out this deficiency. In reply, the Samuel Hall
defendants provided only “copies of checks from their checking
account, many of which contain scant information regarding what
[Samuel Hall and Hall & Griffiths, P.C.,] were paying for, along
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Elsa Hall v. Samuel Hall
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Civil No. 2013-95
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with a few redacted Lexis statements and one deposition
invoice.” Id. The Samuel Hall defendants provided nothing
further to demonstrate “why the costs were incurred” or “the
propriety of the 70%-30% allocation.” Id. Accordingly, the
Magistrate recommended denying the amended motion for costs.
On March 28, 2017, the Court adopted the Magistrate’s
Report and Recommendation. The Court denied the amended motion
for costs without prejudice. To the extent they wished to do so,
the Court ordered the Samuel Hall defendants to file a second
amended bill of costs no later than 3:00 P.M. on April 10, 2017.
At 2:51 P.M. on April 10, 2017, the Samuel Hall defendants
filed a second amended motion for costs. Appended to the second
amended motion for costs was an affidavit from Marie Thomas
Griffiths, counsel for Samuel Hall and Hall & Griffiths, P.C.
With respect to the 70%-30% allocation of costs, Marie Thomas
Griffiths asserted:
The bulk of the effort by counsel in the consolidated
action was devoted to defending the false
accusations made against Defendants. Based on the
time and effort expended, I conservatively assessed
70% as the amount of time spent in defending against
those charges. In making this assessment,
undersigned took into account the fact that there
were no depositions taken by Defendant Elsa in the
companion case 13cv95; there were no discovery
requests served or received by the parties in the
13cv95 case; and unlike the 11cv54 case which
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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involved substantial motions practice, there was
limited motions practice in the companion case.
Civ. No. 13-95, ECF No. 415, Exh. 1 at 2; Civ. No. 11-54, ECF
No. 464, Exh. 1 at 2.
The motion for costs also included a second amended bill of
costs listing 22 expenses. The second amended bill of costs
incorrectly asserts that the sum of these expenses is
$17,123.71. The actual sum of the listed expenses is $15,849.21.
No invoices were appended to the second amended bill of costs.
On April 17, 2017, Elsa Hall filed an opposition to the
second amended motion for costs. Elsa Hall argued that the
second amended motion for costs should be denied because (1) the
second amended bill of costs is not verified and Marie Thomas
Griffiths’s affidavit did not address all of the costs in the
second amended bill of costs; (2) the second amended motion for
costs did not include invoices supporting the asserted costs;
and (3) the 30%-70% allocation of costs was not supported by
sufficient evidence.
On April 24, 2017, the Samuel Hall defendants filed a reply
brief. The invoices for the costs asserted in the second amended
bill of costs are attached to the reply brief as exhibits.
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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On April 26, 2017, Elsa Hall filed a motion to strike the
reply brief. Elsa Hall argued that the invoices attached to the
reply brief were untimely. In the alternative, Elsa Hall seeks
permission to file a surreply to address the submitted invoices.
In support of the need to file a surreply, Elsa Hall asserts
that the invoices show that costs for three depositions in the
second amended bill of costs were incurred in other proceedings.
On May 8, 2017, the Samuel Hall defendants filed an
opposition to the motion to strike. The Samuel Hall defendants
assert that there is no need to submit invoices with the second
amended bill of costs because most of those invoices were
attached to the Samuel Hall defendants’ reply to the opposition
to the first amended motion for costs. The Samuel Hall
defendants also acknowledge that two depositions at a total cost
of $3,174.83 were erroneously included in the second amended
bill of costs.
On May 11, 2017, Elsa Hall filed a reply to the opposition
to the motion to strike. Elsa Hall asserts that, prior to the
second amended motion for costs, the Samuel Hall defendants
submitted an invoice for one cost item. The invoices for the
remaining costs were filed for the first time in the reply to
the opposition to the second amended motion for costs.
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
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II. DISCUSSION
Title 5, section 541 of the Virgin Islands Code (“section
541”) provides, in pertinent part:
Costs which may be allowed in a civil action
include:
(1) Fees of officers, witnesses, and jurors;
(2) Necessary expenses of taking depositions which
were reasonably necessary in the action;
(3) Expenses of publication of the summons or
notices, and the postage when they are served
by mail;
(4) Compensation of a master as provided in rule 53
of the Federal Rules of Civil Procedure; [and]
(5) Necessary expenses of copying any public record,
book, or document used as evidence in the trial
. . . .
5 V.I.C. § 541(a).
III. ANALYSIS
Local Rule of Civil Procedure 54.1 provides:
Within thirty days after the entry of a final
judgment or a judgment allowing costs, the
prevailing party shall serve on the adverse party
and file with the Clerk of the Court a Bill of Costs,
together with a notice of motion when application
will be made to the Clerk to tax the same.
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LRCi 54.1(a). The bill of costs required together with the
notice of motion must
precisely set forth each item thereof, so that the
nature of the charge can be readily understood, and
shall be verified by the attorney for the applicant,
stating that: (1) the items are correct, (2) the
services were actually and necessarily performed,
and (3) the disbursements were necessarily incurred
in the action or proceeding.
LRCi 54.1(b). Finally, the bill of cost must include an invoice
for each cost item. See id. (“Counsel shall append to the
verified Bill of Costs copies of all invoices in support of the
request for each item.”).
Failure to comply with any of the above requirements
results in waiver of entitlement to costs. See LRCi 54.1(c)
(“Upon failure of the prevailing party to comply with . . . Rule
[54.1], all costs shall be waived.”).
The Court ordered the Samuel Hall defendants to file a
second amended motion for costs no later than April 10, 2017.
The Samuel Hall defendants filed a second amended motion for
costs on April 10, 2017. However, no invoices were appended to
the second amended bill of costs as LRCi 54.1(b) requires.
On April 24, 2017, fourteen days after the second amended
bill of costs was due, the Samuel Hall defendants filed a reply
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
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Civil No. 2013-95
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brief, to which they attached the required invoices. Given this
posture, the Court construes the reply of the Samuel Hall
defendants as a motion for extension of time to comply with the
Court’s order that the second amended bill of costs be filed no
later than April 10, 2017.
The Court may extend the time for filing a motion after the
time has “expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The Samuel Hall
defendants have not argued that there was excusable neglect nor
provided any evidence of excusable neglect. Accordingly, because
the Samuel Hall defendants failed to timely file a complete bill
of costs by April 10, 2017, the Court will deny the second
amended motion for costs. See Michael J. Benenson Assocs., Inc.
v. Orthopedic Network of New Jersey, 54 Fed. App'x 33, 37 (3d
Cir. 2002) (affirming denial of motion for costs because party
“fail[ed] to provide invoice documentation of the items for
which it sought reimbursement” in violation of similar local
rule for the United States District Court of the District of New
Jersey).
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Elsa Hall v. Samuel Hall
Civil No. 2011-54
Samuel Hall v. Elsa Hall
Civil No. 2013-95
Order
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The premises considered, it is hereby
ORDERED that the second amended motion for costs docketed
in Civil Number 2011-54 at ECF Number 464 and in Civil Number
2013-95 at ECF Number 415 is DENIED; and it is further
ORDERED that the motion to strike docketed in Civil Number
2011-54 at ECF Number 467 is MOOT.
S\
Curtis V. Gómez
District Judge
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