HUBERT HELLER Plaintiff
vs.
URSULA CABERTA Defendant
Case.No.: 8:00-CV-1528-T-27C
DEFENDANT'S MOTION FOR ATTORNEY'S FEES EXPENSES AND COSTS AND MEMORANDUM OF LAW IN SUPPORT
Pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, Fla. Statutes 501.2105, F. R. Civ.P. 54, Local Rule 4.18, and the court's supervisory power, Defendant, Ursula Caberta, moves this court for an order requiring the Plaintiff and his attorneys to reimburse Defendant for attorney's fees, expenses and costs incured in defense of this action in the amount of $ 63,250.00 in fees and $ 2,954.74 in costs.
An affidavit concerning the fees and the costs is attached hereto as Exhibit 25.
This amount is actually less than a reasonable amount because it only encompasses fees and expenses associated with Merkle & Magri's involvement in the case. Mr. John Merrett first represented Defendant in this case after it was filed on July 27, 2000. Merkle & Magri did not become involved in the case until July 2001 when it was asked to file a motion for a protective order concerning and shortly before Defendant's deposition in Germany. Merkle & Magri had no involvement in the actual deposition in Germany and did not become substantively involved in this case until after the deposition in Germany.
Consequently, Mr. Merrett handled a substantial part of the litigation here.
[...]
WHEREFORE, Defendant respectfully requests that the court enter an order requiring plaintiff and his counsel, jointly and severally, to reimburse the Defendant for her reasonable attorney's fees in the amount of $ 63,520.00 and requiring Plaintiff to reimburse Defendant for her taxable costs in the amount of $ 2,954.74 incurred in defense of this action.
Dated this 23 day of May, 2002
Respectfully submitted
[Signature] ROBERT W. MERKLE [...]
IN THE UNITED DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HUBERT HELLER Plaintiff
vs.
URSULA CABERTA Defendant
Case.No.: 8:00-CV-1528-T-27C
ORDER
BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge (Dkt. 174) recommending that the Defendant's Motion for Attorney's Fees, Expenses and Costs (Dkt. 167) be granted in part and denied in part, Defendant's Objection to Magistrate's Order on Attorney's Fees and Plaintiff's Opposition to Defendant's Objection to Magistrate Judge's Order on Attorney's Fees (Dkt 176). After careful consideration of the Report and Recommendation of the Magistrate Judge, the Defendant's Objection, Plaintiff's Opposition to Defendant's Objection, and after an independent examination of the file, this Court concludes that the Magistrate Judge's Report and Recommendation should be adopted, confirmed and approved in all respects.
Defendant was not the "prevailing party" for purposes of § 1988 and accordingly, is not entitled to recover attorney's fees. To be a prevailing party, Defendant must have succeeded on some claim or significant issue in the litigation which achieves some benefit the party sought. [...] A defendant has not 'prevailed' over a plaintiff on an issue central to the merits of the litigation, where, as here, the complaint has been dismissed for lack of subject matter jurisdiction. Id. Lack of subject matter jurisdiction was the sole basis for dismissing the case. (see Dkt. 165). In its order, this court expressly confirmed that it had not addressed the merits of Plaintiff's claims. (Dkt. 165 at n. 8).
Plaintiff's claims were not frivolous, unreasonable or without foundation. [...] Finally, Plaintiff's counsel has not vexatiously and unreasonably multiplied the proceedings in this cause and Defendant is accordingly not entitled to an award of attorney's fees pursuant to 28 U.S.C. § 1927. [...] Accordingly, it is ORDERED AND ADJUDGED that:
1. The Report and Recommendation of the Magistrate Judge is adopted, confirmed and approved in all respects and made a part of this Order.
2. Defendant's Motion for Attorney's Fees pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927 (Dkt. 167) is DENIED. Defendant is granted leave to reassert her motion for attorneys fees pursuant to § 501.2105, Fla.
Stat. and the Local Rules of this court after all appeals have been exhausted.
3. Defendant's Motion for Expenses and Costs (Dkt. 167) is GRANTED to the extent that Defendant is awarded costs in the amount of $ 1.416.22 pursuant to Fed. R. Civ. P. 54 (d) and 28 U.S.C. § 1920.
DONE AND ORDERED in chambers this 15th day of November, 2002.
[Signature] JAMES D. WHITTEMORE United States District Judge
Go Back
to Shy David's Scientology Page.