Miller v. Cartel
| Decision Date | 13 September 2022 |
| Docket Number | 1:20-cv-132 |
| Court | U.S. District Court — District of North Dakota |
| Parties | Howard J. Miller, et al., Plaintiffs, v. Juarez Cartel, a/k/a Vicente Carrillo Fuentes Organization a/k/a “CFO”, a/k/a La Linea, Defendant. Motley Rice LLC Mitchell & Mitchell, LLC Motley Rice LLC |
ORDER GRANTING IN PART AND DENYING IN PART APPLICATION FOR ATTORNEYS' FEES AND COSTS
Before the court is an “Application for Attorneys Fees and Costs under 18 U.S.C. § 2333(a)” filed on May 13 2022 by Plaintiffs in Miller, et al. v. Juarez Cartel, Case No. 1:20-cv-132 (the “Miller case”). (Doc. No. 59). For the reasons that follow the motion is granted in part and denied in part.
Plaintiffs in the Miller case and Plaintiffs in Langford et al. v. Juarez Cartel, et al., Case No. 1:20-cv-00159 (the “Langford case”) respectively filed suit against Defendant on July 23 and September 21, 2020 seeking to recover damages under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333 et seq., for acts of terrorism perpetrated by Defendant on November 4, 2019. The two cases were ordered consolidated by the Court on October 16, 2020.
Defendant was served by publication but failed to appear or otherwise defend this consolidated action. On application by Plaintiffs in both the Miller and Langford cases, the Clerk's office entered default against Defendant on December 7, 2020. At the request of Plaintiffs, a court trial was held in February 2022. At trial counsel presented evidence establishing Defendant's liability for damages sustained by Plaintiffs as a result of Defendant's acts of terrorism. On June 24, 2022, the court issued its findings of fact, conclusions of law, and order for judgment in which it found for Plaintiffs. Meanwhile, on May 13, 2022, Plaintiffs in the Miller case filed a motion seeking an award of their costs and attorneys' fees.
On July 15, 2022, the court issued an order in which it deferred ruling on Plaintiffs' motion for an award of costs and attorneys' fees pending further briefing. On July 29, 2022, Plaintiffs filed a supplemental memorandum in support of their motion. Consequently, their motion is now ripe for the court's consideration.
The ATA provides that “[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.” 18 U.S.C. § 2333(a) (emphasis added).
Plaintiffs are requesting attorneys' fees in the amount of $4,616,740.00. They have broken down prevailing market rates, hours billed and lodestar figures for counsel and staff as follows:
| Motley Rice LLC |
Name/Title
Hours Billed
Hourly Rate
Total Hourly Fees
Michael E. Elsner/ Member Attorney
720.60
$925.00
$666,555.00
John M. Eubanks/ Member Attorney
313.80
$775.00
$243,195.00
Courtney Wolf Associate Attorney
924.30
$425.00
$392,827.50
Megan Neubert/Trial Paralegal
978.40
$325.00
$317,980.00
Amanda Unterreiner/ Trial Paralegal
149.70
$325.00
$48,625.50
Total
$1,669,183.00
| Mitchell & Mitchell, LLC |
Name/Title
Hours Billed
Hourly Rate
Total Hourly Fees
Samuel F. Mitchell Partner Attorney
1,812.00
$600.00
$1,087,320.00
Steven C. Mitchell/ Partner Attorney
679.4
$1,200.00
$815,280.00
Antonio Martinez Luna/Attorney Consultant
1,237.0
$825.00
$1,020,442.50
Total
$2,923,042.50
(Doc. No. 59).
The court has reviewed the hours claimed for the work performed as reflected in Plaintiffs' motion and the attached supplemental materials and finds them to be reasonable and necessary given the particular circumstances of this case. The court further finds that the rates for counsel, who ably represented Plaintiffs throughout these proceedings, are also reasonable. In so finding, the court notes the complexity of this case, the logistical challenges in prosecuting a case such as this as well as the particular experience and expertise of counsel. The court further notes that, to its knowledge, there is no similar work in this district for comparison purposes but that the rates and hours being claimed here are commensurate with rates approved by courts in other districts and in international courts for similar work. Consequently, the court shall grant Plaintiff's request for attorneys' fees.
The court shall next turn to the issue of costs.
Fed. R. Civ. P. 54(d)(1) provides for an award of costs to the prevailing party. There is a presumption in favor of the award of costs. Sun Ship v. Lehman, 655 F.2d 1311 (D.C. Cir. 1981). District courts nevertheless retain substantial discretion in making such an award. See e.g., McLelland v. Ridge Tool Co., 350 F.Supp.3d 773, 776 (W.D. Ark. 2018).
The costs to be awarded as a matter of course under Rule 54(d)(1) are listed in 28 U.S.C. § 1920 and 28 U.S.C. § 1821. Section 1920 provides that the court may tax as costs the following:
28 U.S.C. § 1920. Section 1821 provides the following with respect to witness fees.
28 U.S.C. § 1821(a)(1) and (b).
The United States Supreme Court has made it clear that 28 U.S.C. §§ 1821 and 1920 provide the default rules for what a federal court may award as “costs” in the absence of an explicit statutory instruction to the contrary:
In the general "costs" statute, codified at §§ 1821 and 1920 of Title 28, Congress has specified six categories of litigation expenses that a federal court may award as "costs," and Congress has detailed how to calculate the amount of certain costs. Sections 1821 and 1920 in essence define what the term "costs" encompasses in the subject-specific federal statutes that provide for an award of costs. Sections 1821 and 1920 create a default rule and establish a clear baseline against which Congress may legislate. Consistent with that default rule, some federal statutes simply refer to "costs." In those cases, federal courts are limited to awarding the costs specified in §§ 1821 and 1920. If, for particular kinds of cases, Congress wants to authorize awards of expenses beyond the six categories specified in the general costs statute, Congress may do so. For example, some federal statutes go beyond §§ 1821 and 1920 to expressly provide for the award of expert witness fees or attorney's fees.
Rimini St., Inc. v. Oracle USA, Inc., 139 S.Ct. 873, 877 (2019); see also W. Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 86-87 (1991) (superseded by statute); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445; Nicholson v. Biomet, Inc., 537 F.Supp.3d 990, 1036 (N.D. Iowa 2021), aff'd, No. 21-2263, 2022 WL 3642917 (8th Cir. Aug. 24, 2022) ().
Here, Plaintiffs request an award of costs totaling $580,476.49, asserting that this amount represents all of the costs that they incurred during the course of this litigation and is recoverable as their “cost of the suit” under the ATA. (Doc. Nos. 59-7, 59-10). They have broken down their costs by firms as follows:
| Motley Rice LLC |
Amount
Court Costs/Filing Fees
$804.78
Estate and Family Court Work
$5,215.94
Experts & Consultants (Including Mexican Co-Counsel)
$327,051.95
Medical Records
$395.63
Miscellaneous
$21.19
Online Research
$12,849.86
Postage & Delivery
$1,209.69
Printing/Scanning
$5,035.99
Reference Materials
$98.09
Service of Process
$4,752.30
Telephone
$528.26
Translations
$61,422.69
Travel
$109,859.90
Trial Expenses (not including travel, hotels, meals supplies, etc.)
$37,064.20
TOTAL
$566,310.47
Mitchell & Mitchell LLC
Category
Amount
In its July 15, 2022, order, the court directed Plaintiffs to file a supplemental memorandum to (1) address whether “costs” can be awarded in this case if they are not explicitly provided for in 28 U.S.C. § 1920, and (2) provide additional information regarding their claimed costs.
In their supplemental memorandum filed on July 29, 2022 Plaintiffs assert that the phrase “cost of the suit” as used in the ATA encompasses or includes litigation expenses beyond what is considered taxable under § 1920. They...
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