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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On February 6, 2012, the plaintiff, Joakim Kaminanga, filed his Supplemental Motion for Attorney's Fees and Costs. He seeks $2,800 in attorney's fees incurred in the trial division, $2,610 in attorney's fees in the appellate division, and $942.16 in costs. The defendant did not respond.

By rule, the court deems failure to oppose a motion as consent to the motion, FSM Civ. R. 6(d); Dungawin v. Simina, 17 FSM Intrm. 51, 55 (Chk. 2010), but even then, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994); Lee v. Lee, 13 FSM Intrm. 68, 71 (Chk. 2004).

Kaminanga asserts that this motion "is made jointly and severally against the defendants ultimately found liable for a violation of 11 FSMC section 701." Supplemental Mot. at 1. Despite Kaminanga's persistence in including the Chuuk governor in his case captions, the only defendant against whom a judgment was entered in this action, and thus the only liable judgment-debtor, is the State of Chuuk.

[18 FSM R. 219]

I. ATTORNEY'S FEES

Kaminanga seeks, under 11 F.S.M.C. 701(3), the civil rights fee award statute, an attorney's fee award of $5,410 for 54.1 hours, at $100 an hour, of work by his attorney.

A. Legal Basis for a Fee Award

A civil rights fee award statute

controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer. What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the "reasonable attorney's fee" that a defendant must pay pursuant to a court order.

Venegas v. Mitchell, 495 U.S. 82, 90, 110 S. Ct. 1679, 1684, 109 L. Ed. 2d 74, 84 (1990).¹ The civil rights statute itself does not interfere with the enforceability of an attorney-client fee contract, id., even one such as the hourly rate agreement that Kaminanga has.

Subsection 701(3) is a fee-shifting statute that shifts the liability for attorney's fees from the client, the party usually liable under a fee agreement, to a non-prevailing party. In an FSM civil rights case, the court "may award costs and reasonable attorney's fees to the prevailing party." 11 F.S.M.C. 701(3). But it does not follow that the time an attorney actually expended on the case is the amount of time reasonably expended or that the hourly rate is reasonable. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM Intrm. 53, 65-66, 72 (Yap 2007), reversed on other grounds, 16 FSM Intrm. 49 (App. 2008). To determine the number of hours reasonably spent, the court must first determine the number of hours actually spent and then subtract from that figure hours that were duplicative, unproductive, excessive, or otherwise unnecessary. Id. at 66. Unnecessary hours and expenses are not compensable or awardable. See Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 673 (App. 1996). A court has an obligation to see that the attorney's fee awards that it approves are reasonable even if the awards are made pursuant to statute. Id. The test for attorney fee compensation is whether a given step was necessary to attain the relief afforded. M/V Kyowa Violet, 15 FSM Intrm. at 66. One difficulty with using time as the lodestar is that there is an incentive to maximize the time devoted to the case, but the court can guard against this by disallowing hours deemed unnecessary. Id. at 66 n.5.

B. Kaminanga's Fees

1. Hourly Rate

Kaminanga states that $100 an hour is the amount he is obligated to pay his attorney under their fee agreement. An $100 hourly rate is certainly a reasonable rate for attorney work in a civil rights case when attorney's fees are awarded under 11 F.S.M.C. 701(3). Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987). The $100 hourly rate is approved.

[18 FSM R. 220]

2. Necessary Hours

In November 2009 through March 22, 2010, Kaminanga's attorney spent 5.4 hours preparing his Renewed Motion for Writ of Garnishment and trying to get a writ issued in Kaminanga's favor to garnish the full judgment amount. The trial court denied Kaminanga's motion for a writ. Kaminanga appealed that denial.

On appeal, the appellate court held "that the trial court has not made clearly erroneous findings of fact, has not made erroneous conclusions of law, and has not abused its discretion in denying the Renewed Motions." Stephen v. Chuuk, 17 FSM Intrm. 453, 456 (App. 2011).² Dissatisfied with this appellate ruling, Kaminanga petitioned for rehearing. His attorney spent 3.4 hours on the rehearing petition. The appellate court summarily denied that petition. Stephen v. Chuuk, 17 FSM Intrm. 496, 499 (App. 2011). Time expended on the rehearing petition was thus completely unproductive and otherwise unnecessary and did not afford Kaminanga any relief. The 3.4 hours were not time reasonably expended. Those hours must be disallowed.

The appellate court did, however, give the parties and the trial court some additional guidance on how to handle future requests for aid in satisfying Kaminanga's and other such judgments. Stephen, 17 FSM Intrm. at 463. But after remand, Kaminanga did not proceed under his previous motion for a writ of garnishment but, on May 27, 2011, instead filed a Renewed Motion for an Order in Aid of Judgment and Motion to Evict Defendant that sought distinctly different relief and sought various relief in the alternative. This was not the approach Kaminanga had taken in his November 2009 motion for a writ of garnishment which sought only immediate payment in full. The new 2011 motion achieved some success. See Stephen v. Chuuk, 18 FSM Intrm. 22, 26 (Chk. 2011) (two years' rent garnished).³ The relief sought in the 2011 motion could have been sought in the 2009 motion but was not. If it had been sought then, the relief granted in 2011 may have been ordered in 2010 instead of the denial and appeal that resulted.

The court thus concludes that the attorney work on the 2009 application for a writ of garnishment and the subsequent appeal was unproductive and unnecessary. Kaminanga did not prevail on the 2009 motion or the resulting appeal. "A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought . . . ." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S. Ct. 1486, 1493, 103 L. Ed. 2d 866, 876 (1989). Kaminanga did not succeed on any significant claim affording him the relief sought in his motion for a writ, which was the immediate garnishment of the full judgment amount. "[A]t a minimum, to be considered a prevailing party within the meaning of [the civil rights fee-shifting statute], the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant. Beyond this absolute limitation, a technical victory may be so insignificant . . . as to be insufficient to support prevailing party status." Id. at 792, 109 S. Ct. at 1493, 103 L. Ed. 2d at 877 (citations omitted).

Thus even if the appellate division's additional guidance for future proceedings was considered a technical victory for Kaminanga (unlikely since even he did not think he was the prevailing appellate party because he then submitted a lengthy petition for rehearing), it is insufficient to support prevailing

[18 FSM R. 221]

party status on Kaminanga's 2009 application for a writ and his resulting appeal. Furthermore, the appellate court did not direct, as it often does in a proper case, that the trial court determine on remand the amount of attorney's fees to award a prevailing appellate party. See, e.g., FSM v. Udot Municipality, 12 FSM Intrm. 622, 624-25 (App. 2004).

Kaminanga did obtain a substantial judgment in his favor and was thus a prevailing party at that stage of the litigation. "Nevertheless, that a plaintiff has once established prevailing party status does not make all later work compensable. Compensability is subject to several limitations." Cody v. Hillard, 304 F.3d 767, 773 (8th Cir. 2002). These limitations are: 1) the fee award should take into account the plaintiff's success in the case as a whole; 2) "an earlier established prevailing party status extends to post judgment work only if it is a 'necessary adjunc[t] to the initial litigation,'" and 3) "plaintiffs cannot over-litigate." Id. "Postjudgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree." Id. In analyzing a fee request for protracted litigation, it is helpful to divide the time period into phases. Id. This is protracted litigation.

Dividing this case's postjudgment period into an appellate phase, the court concludes that all of the appellate division work hours and 5.4 trial division hours spent on the 2009 motion for a writ of garnishment should be disallowed. The court disallows the trial division hours on the 2009 motion and the subsequent appellate division hours on the basis that Kaminanga was either not a prevailing party on that phase of the litigation or on the basis that those hours constitute unproductive over-litigation, not reasonable in degree. The court also notes that the appellate court did not ask the trial court to award attorney's fees for the appellate work. Of the remaining 22.6 trial division hours, a few items are not well explained or self-explanatory, but on a whole appear reasonable. The court will therefore allow these hours and award $2,260 in attorney's fees.

II. COSTS

Kaminanga also seeks $942.16 in costs, the bulk of which were travel costs. When it is shown that no attorney is available on the island where the litigation is taking place, the trial court may award as costs a prevailing party's reasonable travel expenses for its attorney. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985). The unavailability of local counsel has been demonstrated in this case. Kaminanga's prorated⁴ travel costs total $846.08. Of these, $295.20 were travel costs for hearing the motion whose denial resulted in Kaminanga's unsuccessful appeal and $119.38 were travel costs for the appeal itself. These costs ($414.58) are not taxable and will be disallowed since Kaminanga did not prevail on the appeal and thus the $414.58 are not reasonable expenses. Costs are generally taxed against, not for, an unsuccessful appellant "unless otherwise ordered." FSM App. R. 39(a). The appellate court did not otherwise order.

Furthermore, appellate costs are ordinarily taxed in the appellate division, FSM App. R. 39(d); Nena v. Kosrae (III), 6 FSM Intrm. 564, 568-69 (App. 1994), except that transcript fees and "the costs of the reporter's transcript, if necessary for the determination of the appeal" are taxable in the trial division by the prevailing appellate litigant, FSM App. R. 39(e). Although a litigant prevailing in the appellate division is entitled to recover its trial court and appellate costs, College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 296, 298 (Pon. 2001), Kaminanga did not prevail in the appellate division. If

[18 FSM R. 222]

he had, the appellate court would have ordered that costs be taxed in his favor as a result of his appeal. It did not. Moreover, a review of the record shows that a transcript of the March 2010 hearing was not necessary for the determination of the appeal. Its cost would be disallowed even if Kaminanga had prevailed on appeal.

The $60 in service costs were for other hearings. Those costs will be allowed since those hearings advanced the litigation. Those service costs and the $431.50 in travel costs (total $491.50) are reasonable and will be allowed.

Footnotes:

¹ Because the FSM statute is based upon the United States model, the FSM Supreme Court should consider United States court decisions under 42 U.S.C. § 1983 and § 1988 for guidance in determining 11 F.S.M.C. 701(3)'s intended meaning and governmental liability thereunder. Carlos Etscheit Soap Co. v. McVey, 17 FSM Intrm. 148, 150 n.2 (Pon. 2010), aff'd, 17 FSM Intrm. 427 (App. 2011); Sandy v. Mori, 17 FSM Intrm. 92, 96 n.3 (Chk. 2010); Robert v. Simina, 14 FSM Intrm. 438, 443 n.1 (Chk. 2006); Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 13 (Chk. 2001); Plais v. Panuelo, 5 FSM Intrm. 179, 204 (Pon. 1991).

² Kaminanga's appeal and Foustino Stephen's appeal were consolidated by the appellate division for hearing and decision since the orders appealed from, the motions denied, and the issues raised in each were very similar.

³ Kaminanga's garnishment was for $10,968, while Stephen's was for $10,780.

⁴ The court is particularly inclined to view travel costs as reasonable when the attorney's overall travel expenses were reasonable and the actual expenses were pro-rated proportionally with other clients on whose behalf the attorney also traveled. Lippwe v. Weno Municipality, 14 FSM Intrm. 347, 354 (Chk. 2006); Udot Municipality v. FSM, 10 FSM Intrm. 498, 501 (Chk. 2002). The court is not inclined to grant any travel costs that are not prorated.