Smith v. All persons claiming a present or future Interest

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff,
v.
ALL PERSONS CLAIMING A PRESENT OR
FUTURE INTEREST IN ESTATE 13,
FRIIS, LINDA V. SMITH-FRANCIS,
WILLIAM E. SMITH, ELOISE V. SMITH-
HENDRICKS, BAB FRIIS NO. 1, PAUL
HOFFMAN, JANE HOFFMAN-WALKER,
ELEANOR ADAMS HOFFMAN, MAXWELL
ADAMS HOFFMAN, GLORIA FRANCOIS
MCGOWAN, DAVID A. BORNN AS TRUSTEE
TO THE GAF TRUST ESTATE 14 JOHN’S
FOLLY EXCLUDING ALL HEIRS AT LAW,
ESTATE 15 CONCORDIA A, CORAL BAY
QUARTER, ST JOHN UNITED STATES
VIRGIN ISLANDS, NATIONAL PARK
SERVICE, LAND RESOURCES DIVISION,
DEPARTMENT OF INTERIOR, THE UNITED
STATES OF AMERICA, STANLEY
SELENGUT, WILLIAM B. POPPELTON,
LORRAINE A. POPPELTON, KEVIN M.
WALSH, MARIA K. STURATIS, SCOTT E.
WILMOSKI, CHARLES M. PERDUE,
MONICA PERDUE, JOZSEF NEMETH,
NANCY NEMETH, FRED S. PATTERSON,
MARGARET D. PATTERSON, JOHN R.
PERGOLIZZI, TREASURE VIEW LLC,
GEORGE PILLORGE, DEBORAH PILLORGE,
SCOTT L. HARTSHORN, CLAUDETTE C.
HARTSHORN, HEINZ G. FISHER, LINDA
G. BURDET TRUSTEES OF THE HEINZ G.
FISHER TRUST, DONALD DURANTE,
SAFIA B. DURANTE, CRAIG E.
MITCHELL, ALAN MARTIN KAUFMAN,
RACHELLE KAUFMAN, JEFFREY J.
McCRAVE, ANN McCRAVE, DOROTHY K.
JANOSKO, WILLIAM R. KINCER, SUSAN
B. KINCER, SUSAN GREER
LITTLEFIELD, WAYNE CHESTERFIELD,
MONIQUE FRANCOIS, PEDRITO
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
Order
Page 2
FRANCOIS, SALT POND VISTA LLC,
V.I. JOSEPH PALMINTERI, CARRIE
GLENN, MARC KAVE, EMILY J.
BRATTON, RICK HATHAWAY, RENE A.
SERVANT aka RENE H. SERVANT, MARIE
THERESE L. SERVANT, LORI JANE
SNACK, BRIAN K. WALDEN,
MINISTER ISHMAEL R. MUHAMMED,
MICHAEL CARPER, REUBEN WHEATLEY,
et al.,
Defendants.
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APPEARANCES:
Ida Smith
New York, NY
Pro se plaintiff,
Ronald W. Sharpe, USA
Jason Cohen, AUSA
St. Thomas, VI
For the United States National Park Service,
Maria Tankenson Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Paul Hoffman; Jane Hoffman Walker; and David A. Bornn,
Trustee of the GAF Trust,
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg
St. John, U.S.V.I.
For William E. Smith; Eloise V. Smith; Deborah Pillorge;
Claudette C. Hartshorn; Scott L. Hartshorn; Linda V. Smith-
Francis; and George Pillorge,
Gloria McGowan
Pro se,
Wayne Chesterfield
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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Monique Francois
Pro se,
Pedrito Francois
Pro se,
Joseph Palminteri
Pro se,
W. Mark Hillsman, Esq.
Law Offices of Norman P. Jones, P.C.
St. Thomas, U.S.V.I.
For Carrie Glenn; Lori Jane Snack; William B. Poppelton;
Lorraine A. Poppelton; Maria K. Sturaitis; Charles M.
Purdue; Monica Purdue; Salt Pond Vista, LLC; Heinz G.
Fisher; Linda G. Burdet, Trustee of the Heinz G. Fisher;
Safia B. Durante; Donald Durante,
Marc Kave
Pro se,
Emily J. Bratton
Pro se,
Rick Hathaway
Pro se,
Rene A. Servant
Pro se,
Marie Therese Servant
Pro se,
Brian K. Walden
Pro se,
John H. Benham, III, Esq.
Watts, Benham & Sprehn, P.C.
St. Thomas, U.S.V.I.
For Stanley Selengut,
Mark D. Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For Kevin M. Walsh and Treasure View LLC,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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Scott E. Wilmoski
Pro se,
Jozef Nemeth
Pro se,
Nancy Nemeth
Pro se defendant.
Fred S. Patterson
Pro se,
Margaret D. Patterson
Pro se defendant.
John R. Perqulizzi
Pro se,
Terryhill Enterprises, II
Pro se,
Missouri LLC
Pro se,
Craig E. Mitchell
Pro se,
Michael E. Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For Alan Martin Kaufman,
Ann McCrave
Pro se,
Jeffrey J. McCrave
Pro se,
William R. Kincer
Pro se,
Susan B. Kincer
Pro se,
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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Susan Greer Littlefield
Pro se,
Kurt Shore
Pro se,
Suzanne L. Shore
Pro se,
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se.
ORDER
GÓMEZ, J.
Before the Court is a motion for attorney’s fees filed by
Paul Hoffman, Jane Hoffman Walker, and David A. Bornn as Trustee
of the GAF Trust.
FACTUAL AND PROCEDURAL HISTORY
In March 2011, Ida Smith (“Smith”) initiated this action.
In her complaint, Smith asked the Court to determine the
boundary lines of Estate John’s Folly, Coral Bay Quarter, St.
John, United States Virgin Islands. She also asked the Court to
perfect her title to the “remnant lands” of Estate John’s Folly.
Finally, Smith asked the Court to determine that certain
property that Paul Hoffman, Jane Hoffman-Walker, and David A.
Bornn as Trustee for the GAF Trust (the “Friise Defendants”)
claim as part of Estate Friise is in fact part of Estate John’s
Folly and presumably quiet title to that property in her name.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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The Friise Defendants moved for summary judgment on the
claims asserted against them. They argued that the boundary line
between the properties had previously been litigated in Dudly v.
Meyers, 422 F.2d 1389 (3d Cir. 1970), and that the doctrine of
res judicata precluded Smith from relitigating those claims.
On September 30, 2015, this Court issued a memorandum
opinion and entered judgment granting the Friise Defendants’
motion, entering judgment in their favor, and dismissing Smith’s
claims against them. The Friise Defendants now move for
attorney’s fees.
The Friise Defendants seek a total of $24,500 in attorney’s
fees. In support of their motion for attorney’s fees, the Friise
Defendants submitted the invoices of their counsel, Hodge and
Hodge, and an affirmation from Maria Taneknson Hodge, a partner
with the law firm. In her affirmation, attorney Hodge explains
that she billed the Friise Defendants 64.5 hours at a rate of
$325 per hour for a total of $20,962.50; Mark D. Hodge billed 6
hours at a rate of $325 per hour for a total of $1,950.00;
Gaylin Vogel billed 5.5 hours at a rate of $225.00 per hour for
a total of $1,237.50; and Hayley Cotter billed 1.75 hours at a
rate of $200.00 per hour for a total of $350.00.
Hodge affirmed that the billing rates charged are her
“firm’s standard hourly fees and are based upon the accumulation
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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of experience on the part of the attorney who rendered the
services.” (ECF No. 396, Exh. 1 at ¶ 4.) Attorney Hodge also
affirmed that fees were “charged only for services actually
rendered which necessarily required performance by an attorney
in the firm.” (Id. at ¶ 5.)
DISCUSSION
Title 5, section 541 of the Virgin Islands Code authorizes
an award of attorneys’ fees “to the prevailing party in the
judgment” in an amount “the court in its discretion may fix by
way of indemnity for his attorney’s fees in maintaining the
action or defenses thereto.” § 541(a)(6), (b). A prevailing
party may only obtain “a fair and reasonable award of attorneys'
fees,” Staples v. Ruyter Bay Land Partners, LLC, No. CIV. 2005-
11, 2008 WL 413308, at *1 (D.V.I. Feb. 6, 2008).
“To determine a fair and reasonable award of attorney’s
fees, the Court considers factors including the time and labor
involved, skill required, customary charges for similar
services, benefits obtained from the service and the certainty
of compensation.” See Lemper v. Singer, 29 V.I. 169, 172–73
(D.V.I. 1993); see also Morcher v. Nash, 32 F. Supp. 2d 239, 241
(D.V.I. 1998). Reasonable attorney’s fees may include charges
for work that was “useful and of a type ordinarily necessary to
secure the final result obtained from the litigation.”
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Pennsylvania v. Del. Valley Citizens’ Council for Clear Air, 478
U.S. 546, 561 (1986); see also Gulfstream III Assocs., Inc. v.
Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3d Cir. 1993)
(noting that reasonable attorney’s fees may include charges for
measures necessary to enforce district court judgments as well
as other charges “reasonably expended” to advance the
litigation).
ANALYSIS
Smith opposes the Friise Defendants’ motion for attorney’s
fees. Smith does not contend that the fees were unreasonable.
Rather, it appears that Smith primarily continues to argue the
merits of her quiet title claims. These claims have already been
denied by the Court and Judgment has been entered on them. An
opposition to a motion for attorney’s fees is not an appropriate
vehicle to make these arguments. As such, the Court declines to
consider them here. See, e.g., Virgin Records Am., Inc. v.
Sparano, 245 Fed. App'x 200, 201 (3d Cir. 2007).
Smith also asserts that the Friise Defendants are not
entitled to attorney’s fees under federal law. That argument is
unavailing as the Friise Defendants were prevailing parties on
Smith’s territorial claim.
As the Friise Defendants are prevailing parties on a
territorial claim, 5 V.I.C. 541 provides guidance with respect
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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to attorney’s fees in this case. See, e.g., Fair Wind Sailing,
Inc. v. Dempster, 764 F.3d 303, 312 (3d Cir. 2014)
Applying the standards outlined above, the Court finds that
most of the fees requested by the Friise Defendants are
reasonable. However, several items for which the Friise
Defendants seek reimbursement are unreasonable.
For instance, the Friise Defendants seek compensation for 3
hours of work billed as:
Continue to draft opposition to motion for leave to
serve by publication and motion to dismiss; forward
drafts by email to Paul Hoffman and David Bornn for
review and comment; telephone call, Hoffman, re
drafts and overall strategy; edit drafts, assemble
exhibits; draft further email to clients with
revised copies and request for input to allow filing;
draft email instructions to associate.
(ECF No. 396, Exh. 2 at 1.)
If a fee petition is not sufficiently specific, then the
court cannot “determine if the hours claimed are unreasonable
for the work performed.” Washington v. Philadelphia Cnty. Court
of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996). As such, the
lumping of activities in this way is disfavored. See Good Timez,
Inc. v. Phoenix Fire and Marine Ins. Co., 754 F. Supp. 459, 463
n.6 (D.V.I. 1991). The Court will reduce the award of attorney’s
fees accordingly.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Additionally, the Friise Defendants seek reimbursement for
conferences and communications between its own attorneys.
Several courts have acknowledged that civil rights cases may
especially require the engagement of multiple attorneys. See,
e.g., Tenafly, 195 F. App’x at 99 (noting that approximately 140
hours spent on meetings and conference calls was not
intrinsically unreasonable in light of the complexity of the
case and numerous parties involved); Gay Officers Action League
v. Puerto Rico, 247 F. 3d 288, 297 (1st Cir. 2001) (“[C]ourts
must be careful not to throw out the baby with the bath water.
Given the complexity of modern litigation, the deployment of
multiple attorneys is sometimes an eminently reasonable
tactic.”) This is not such a case. The Court finds excessive
some of the intra-office conferences between the attorneys
representing the Friise Defendants and will reduce the amount of
reimbursement sought for such conferences. See Morcher v. Nash,
32 F. Supp. 2d 239, 241 (D.V.I. 1998) (“Multiple lawyer
conferences, not involving opposing counsel . . . involve
duplicative work.”); Staples v. Ruyter Bay Land Partners, LLC,
Civ. No. 2005-11, 2008 U.S. Dist. LEXIS 9359, at *5 (D.V.I. Feb.
6, 2008).
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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The premises having been considered, it is hereby
ORDERED that Ida Smith shall be liable to Paul Hoffman,
Jane Hoffman Walker, and David A. Bornn as Trustee of the GAF
Trust for attorney’s fees in the amount of $19,712.50.
S\
CURTIS V. GÓMEZ
District Judge
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