Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1201
PHALY POY,
Plaintiff, Appellant,
v.
JOHN BOUTSELIS, ET AL.,
Defendants, Appellees.
No. 03-1243
JOHN BOUTSELIS, ET AL.,
Defendants, Appellants,
v.
PHALY POY,
Plaintiff, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Thomas J. Freda with whom Joseph W. Monahan, III and Monahan
& Padellaro were on brief for John Boutselis.
Mark W. Miller with whom Howard B. Wernick was on brief for
Phaly Poy.
February 13, 2004
Per Curiam. As a result of plaintiff's success in his appeal
from the district court's denial of attorney's fees, he has filed
a request for attorney's fees on appeal in the amount of $23,800.
Accompanying the request are billing ledger pages detailing the
dates, time spent, and subject matter of counsel's work. Counsel
Mark W. Miller has supplied an affidavit describing his experience
and stating that his professional fees are calculated at $175 an
hour. The ledger entries for work on plaintiff's appeal total 136
hours. No opposition to the request has been submitted.
We undertake our own assessment, being guided by "the numbers
of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate," Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). In light of the absence of any objection, we see no reason
to question the hourly rate of $175. Nor do we "attempt a
comprehensive accounting of each asserted expenditure of time and
funds, annotated with our view of the labor's real worth." Ackerly
Communications of Mass., Inc. v. City of Somerville, 901 F.2d 170,
171 (lst Cir. 1990). In this case there are no special
circumstances warranting extended discussion. Our basic inquiry is
to determine the time reasonably required by the issues presented.
Plaintiff's attorney Miller performed all the services on
appeal; there is no problem of duplicating work. The records kept
are meticulous, although at some point not particularly descriptive
of the nature of work done. Much of the work was directed at
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issues raised by defendants in their own appeal. These include a
labored statute of limitations argument, a challenge to the
evidence supporting damages for emotional distress and punitive
damages, and an ill-considered attempt to challenge the denial of
attorney's fees to a non-appealing party. The quality of
plaintiff's briefs was at a high standard. We think, therefore,
that a substantial award is justified.
But we feel obliged to make the following reductions, deeming
the reported times excessive. The claim for time spent on
plaintiff's opening brief is 46 hours, of which 24 hours at the end
were spent on two days for an unspecified miscellany of tasks
described simply as reviewing files, editing, revising, checking
and formatting. In light of the fact that the factual background
was not complex, and the relevant authorities few, we think a
reasonable time spent on the opening brief would not exceed 40
hours. The plaintiff's reply brief was longer than the opening
brief, partly because it dealt with the variety of issues raised by
defendants in their opening brief. But, as we have indicated, some
of these issues were insubstantial and do not in our view warrant
the 52 hours claimed. We feel that no more than 42 hours should be
allowed.
A claim of 18 hours to prepare for oral argument seems to us
admirable but not a reasonable amount to impose on an adversary.
We reduce the claim by 6 hours. For the 12 hours claimed for work
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on defendants' motion to strike and 4 hours work on the present fee
application, we allow 14 hours, after a reduction of 2 hours. This
reflects, inter alia, a somewhat lower rate for time spent on the
present fee application.
In sum, we deem reasonable an expenditure of 108 hours, and
approve an attorney's fee of $18,900.
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