FSM SUPREME COURT TRIAL DIVISION
Cite as FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367 (Pon. 2023)
FSM TELECOMMUNICATIONS CABLE
CORPORATION (the Open Access Entity),
Plaintiff,
vs.
FSM TELECOMMUNICATIONS CORPORATION,
Defendant.
CIVIL ACTION NO. 2021-010
ORDER SETTING ATTORNEYS' FEES AWARD
Larry Wentworth
Associate Justice
Decided: December 18, 2023
APPEARANCES:
For the Plaintiff:
Aaron L. Warren, Esq.
Mooney Wieland Warren PLLC
P.O. Box 3501
Pago Pago, American Samoa AS 96799
For the Defendant:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941
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Generally, the court will award attorney's fees to the prevailing party if authorized by contract or by statute. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 371 (Pon. 2023).
That a case involved many issues of first impression is not a ground to deny the prevailing party a contract-based attorneys' fee award; it may even be a ground to enhance an attorney fee award. Nor does it matter whether the prevailing party's fees were paid or who may have paid them. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 371 (Pon. 2023).
The entitlement to reasonable attorneys' fees is that of the client, not of his attorney. Because the amount the client actually pays his attorney (or even whether the client actually pays) is irrelevant, the determination of what is a reasonable fee is to be made without reference to any prior agreement between the client and its attorney; and the appropriate lodestar rate is the market rate charged by attorneys of equivalent skill and experience for work of similar complexity. The reasonableness determination is arrived at without referring to any fee agreement that may be in place between the parties. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 371 (Pon. 2023).
The twelve-factor attorney-fee test considers: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the attorneys' experience, reputation, and ability; 10) the case's "undesirability"; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 371 n.2 (Pon. 2023).
The eight-factor attorney-fee test considers: 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3) the fee customarily charged in the locality for similar legal services; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8) whether the fee is fixed or contingent. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 372 n.3 (Pon. 2023).
In determining an attorney fee award's reasonableness, the appellate division has considered two different, but similar sets of factors: one, involving twelve factors, is drawn from civil rights caselaw; and the other, involving eight factors, is drawn from the FSM Model Rules of Professional Conduct Rule 1.5(a), and is thus used to determine whether a fee is unreasonable and unethical. The only real differences between these two tests is that the twelve-factor test includes consideration of the case's undesirability and awards in similar cases and the eight-factor test makes consideration of whether the acceptance of the particular employment will preclude other employment by the lawyer dependent on whether that preclusion was apparent to the client and limits the fee to the customary fee in the case's locality. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 372 (Pon. 2023).
One difficulty with using time as the lodestar in attorney fee awards 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 or redundant. It does not follow that the time an attorney actually expended is the amount of time reasonably expended. 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 which were duplicative, unproductive, excessive, or otherwise unnecessary. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 372 (Pon. 2023).
When time records are too generic and, thus, insufficient as a practical matter to permit a court to answer questions about excessiveness, redundancy, and the like, the court need not accept them at face value. Instead, the court may either discount or disallow those hours. Attorneys' time records, submitted in support of fee requests, often contain questionable entries, and the trial court's discretion in separating wheat from chaff is quite broad. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 372 (Pon. 2023).
When considering an attorney fee award, the time devoted to intra office consultations between attorneys that duplicated the other's time will be reduced. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 372 (Pon. 2023).
Since only the prevailing party may recover under the contract, to allow a party to recover for soliciting and coordinating with amici would facilitate easy circumvention of this rule. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 373 (Pon. 2023).
A prevailing party may not recover fees for time spent soliciting or coordinating with supporting amici, or reviewing amicus briefs before they are filed. The court will therefore disallow the hours the prevailing party's attorneys spent encouraging, arranging, or assisting with the preparation of an amicus brief. This ensures the integrity of the contractual allocation of attorneys' fees, while allowing for recovery in those instances where amicus related work (responding to amicus briefs) is necessary to adequately represent a client. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 373 (Pon. 2023).
While time spent on unsuccessful settlement negotiations before trial may materially advance the litigation by narrowing or clarifying issues, when that does not seem to have occurred, the court will reduce the pretrial settlement hours for which an attorney fee award is made and will not award any fees for hours spent on potential settlement after the trial, decision, and judgment because those work hours were unproductive since no settlement was reached. The court generally subtracts hours which were unproductive. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 373 (Pon. 2023).
When making an attorney fee award, the court will disallow the hours devoted to administrative, instead of legal, tasks, since administrative work is considered part of overhead, and will also disallow hours that are either unexplained (including hours whose purpose was entirely redacted) or inadequately explained. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 373 (Pon. 2023).
Hours spent arranging and clarifying the terms and scope of an attorney's engagement and the time and expense hiring needed staff [the prevailing party's attorneys] are not compensable as attorneys' fees. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 373 (Pon. 2023).
The court cannot award an hourly rate just because that is what the attorney billed the client since an attorney fee award is based on the customary fee in the locality in which the case is tried. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 374 (Pon. 2023).
When constructing a fee shifting award, the court can set two separate hourly rates for a particular attorney – one for "core" tasks like legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders, and a lower one for "non core" tasks, which are less demanding, such as letter writing, e-mailing, and telephone conversations. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 374 (Pon. 2023).
Attorneys' fees may be enhanced for experienced legal work in difficult, complex cases, but a fee enhancement is the exception, and not the rule. In a complex case, rather than apply a fee enhancement multiplier, the court may adjust the hourly rate slightly upward and award more an hour for the "core" legal work. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 374 (Pon. 2023).
A court can award fees where a paralegal performs legal (as opposed to clerical) work, does so under an attorney's supervision, and is qualified to perform substantive legal work. Paralegals (and attorneys) are not entitled to compensation for nonlegal work. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 374 (Pon. 2023).
Like attorneys' fees, paralegal fees for administrative work will be disallowed. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 375 (Pon. 2023).
Ten dollars in costs and expenses for Skype, which were incurred for international calls to witnesses and advisors as a necessary expense in preparation for court litigation, was allowed as a reasonable cost. FSM Telecomm. Cable Corp. v. FSM Telecomm. Corp., 24 FSM R. 367, 375 (Pon. 2023).
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LARRY WENTWORTH, Associate Justice:
Now before the court is the Plaintiff's Motion and Memorandum for Attorney Fees and Costs Against Defendant, filed on September 19, 2023, along with an Affidavit in Support of Motion for Attorney Fees and Costs. On September 29, 2023, the defendant, FSM Telecommunications Corporation ("Telecom"), filed its Opposition to Motion for Attorneys' Fees. On October 4, 2023, the plaintiff, the FSM Telecommunications Cable Corporation, also known as the Open Access Entity ("the OAE"), filed, in reply, a Supplemental Affidavit of Counsel in Support of Motion for Attorney Fees and Costs.
Telecom contends that the plaintiff, the FSM Telecommunications Cable Corporation, also known as the Open Access Entity ("the OAE"), should not be awarded any attorneys' fees, and that, if it is awarded any, the hours of attorney work for which fees are sought are excessive, and that the hourly rate sought is also excessive.
Telecom contends that the OAE should not be awarded any attorneys' fees because it appears that the OAE's attorneys' fees have, except for about $14,000, have already been paid (in Telecom's view) by a third party. Telecom also points out that, if there is an fee award, the FSM government would merely be transferring money from one pocket to another due to the unique circumstances of this case (as found by the court) where both parties are government-owned corporations with the same government owner and where the Deed Granting Indefeasible Rights of Use ("IRU Deed") contained one provision that might have been unconscionable if the parties (or just Telecom) had been privately-owned corporations. Telecom further contends that, since the parties litigated numerous issues of first impression in this case and that, since Telecom raised, in good faith, many challenges to the OAE's right to the sums it sought, the court, in its discretion, should not award the OAE any attorneys' fees.
The court, in its Findings of Fact and Conclusions of Law, previously ruled that the OAE, having prevailed in its collection action, was, as provided for in the parties' contract, the IRU Deed, was entitled to an award for its reasonable and necessary attorney's fees and expenses. FSM Telcomm. Cable Corp. v. FSM Telcomm. Corp., 24 FSM R. 184, 198 (Pon. 2023). This ruling was based on a contractual provision that authorized "an attorney's fee award when 'either Party engages counsel or initiates proceedings to collect any past due amount from the other Party, then the payee will be entitled to recover reasonable and necessary legal fees and expenses incurred in collecting the past due sum.'" Id. (quoting IRU Deed § 11.2). Since this was a collection case (the OAE sought payment on its past-due invoices) and since the OAE prevailed, the court ruled that the OAE is "entitled to recover reasonable and necessary legal fees and expenses" in obtaining its favorable judgment collecting on those past due sums. Id.
The court sees no reason to reconsider this ruling. Generally, the court will award attorney's fees to the prevailing party if authorized by contract or by statute. FSM Dev. Bank v. Adams, 14 FSM R. 234, 256 (App. 2006). Here, attorneys' fees were authorized by contract. IRU Deed § 11.2. That this case involved many issues of first impression is not a ground to deny the prevailing party a contract-based attorneys' fee award.1 Nor does it matter whether the OAE's fees were paid or who may have paid them. See infra part II.A.
The OAE seeks an attorney fee award of $215,387.60 for 904.8 hours of attorney work at an effective hourly rate of $238.05 an hour plus $1,944 in legal assistant fees at $65 an hour for a total of $217,331.60. Or, according to the counsel's simultaneously-filed supporting affidavit, $215,225.60 for 904.8 hours of attorney work at an effective hourly rate of $237.87, plus $2,106 for 32.4 hours of paralegal fees at $65 an hour for a total of $2,106 for the same total of $217,331.60.
A. Liability for Fee Awards
Telecom contends that it should not be liable for an attorneys' fee award because the OAE's attorneys have already been paId. This contention is meritless because the entitlement to reasonable attorneys' fees is that of the client, not of his attorney; because the amount the client actually pays his attorney (or even whether the client actually pays) is irrelevant, since the determination of what is a "reasonable" fee is to be made without reference to any prior agreement between the client and its attorney; and because the appropriate lodestar rate is the market rate charged by attorneys of equivalent skill and experience for work of similar complexity. Sandy v. Mori, 17 FSM R. 92, 96-97 (Chk. 2010); Bank of the FSM v. Truk Trading Co., 16 FSM R. 467, 471 (Chk. 2009); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM R. 53, 63 (Yap 2007), rev'd on other grounds sub nom., M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM R. 49 (App. 2008); FSM Dev. Bank v. Kaminanga, 12 FSM R. 454, 455-56 (Chk. 2004). The reasonableness determination is arrived at without referring to any fee agreement that may be in place between the parties. AHPW, Inc. v. FSM, 13 FSM R. 36, 39 (Pon. 2004).
Therefore, whether the OAE's attorneys' fees were paid by a third party or were discounted is not relevant. Telecom's arguments on these grounds are meritless. For an attorney fee award, the fair hourly rate in the locality is used, and the starting point of a reasonable attorney's fee calculation is done by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. M/V Kyowa Violet, 15 FSM R. at 65. This is the lodestar approach. Id.
In determining an attorney fee award's reasonableness, the appellate division has considered two different, but similar sets of factors: one, involving twelve factors, is drawn from civil rights caselaw;2 and the other, involving eight factors, is drawn from the FSM Model Rules of Professional Conduct Rule 1.5(a),3 and is thus used to determine whether a fee is unreasonable and unethical. M/V Kyowa Violet, 15 FSM R. at 65. The only real differences between these two tests is that the twelve-factor test includes consideration of the case's undesirability and awards in similar cases and the eight-factor test makes consideration of whether the acceptance of the particular employment will preclude other employment by the lawyer dependent on whether that preclusion was apparent to the client and limits the fee to the customary fee in the case's locality. Id.
B. Hours
1. General Approach
The OAE seeks an attorney fee award for 904.8 hours of attorney work. 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 or redundant. Kaminanga v. Chuuk, 18 FSM R. 216, 219 (Chk. 2012); M/V Kyowa Violet, 15 FSM R. at 66 n.5. It does not follow that the time an attorney actually expended is the amount of time reasonably expended. M/V Kyowa Violet, 15 FSM R. at 66. 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 which were duplicative, unproductive, excessive, or otherwise unnecessary. Id. at 66.
When time records are "too generic and, thus, insufficient as a practical matter to permit a court to answer questions about excessiveness, redundancy, and the like," the court need not accept them at face value. Torres Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008). Instead, "the court may either discount or disallow those hours." Id. "Attorneys' time records, submitted in support of fee requests, often contain questionable entries, and the [trial] court's discretion in separating wheat from chaff is quite broad." Id. at 340. The OAE attorneys' time records are generally sufficiently detailed for the court's purposes.
2. Specific Application
a. Duplicative Hours
The OAE attorneys discounted their rates for some of the hours sought, in particular for those times when two of their attorneys conferred or reviewed the other. This is appropriate because, when considering a fee award, the time devoted to intra office consultations between attorneys that duplicated the other's time will be reduced. M/V Kyowa Violet, 15 FSM R. at 66, 69 (time devoted to intra office consultations between attorneys that duplicated the other's time will be reduced; when attorneys invoiced hours for conferring with one or more other attorneys in the same firm, the duplicate hours will be disallowed). The court has reviewed the OAE attorneys' hours and hereby deducts or disallows 34.2 hours as duplicative.
b. Amicus Brief
The OAE attorneys spent some time arranging for the FSM government to file an amicus brief. In Glassroth v. Moore, 347 F.3d 916 (11th Cir. 2003), the Eleventh Circuit considered whether a party could recover attorney fees for work done "in relation to a number of amicus briefs filed in support of plaintiffs' position," including "time enlisting organizations to appear as amici, suggesting potential signatories for the briefs, working on, supervising, and reviewing the amicus briefs, and seeing that they were mailed on time." Id. at 918–19. The Eleventh Circuit reasoned that because amici are not entitled to attorneys' fees as a "prevailing party," it would not allow this result to be changed "by the simple expedient of having counsel for a party do some or all of the amicus work." Id. at 919. Consequently, the court held that district courts "should not award plaintiffs any attorney's fees or expenses for work done in connection with supporting amicus briefs." Id. (but "[a] reasonable amount of time spent reading and responding to opposing amicus briefs is, of course, compensable").
Only a prevailing party may recover under the contract. IRU Deed § 11.2. To allow a party to recover for soliciting and coordinating with amici would facilitate easy circumvention of this rule. See Glassroth, 347 F.3d at 919; See also Bishop v. Smith, 112 F. Supp. 3d 1231, 1246 (N.D. Okla. 2015) ("[P]re filing activities must be carefully scrutinized and are not compensable if they constitute brainstorming potential amici, strategizing regarding potential amici, coordinating potential amici, soliciting potential amici, or drafting/editing an amicus brief."). Accordingly, the OAE may not recover fees for time spent soliciting or coordinating with supporting amici, or reviewing amicus briefs before they are filed. The court will therefore disallow the 10.5 hours the OAE attorneys spent encouraging, arranging, or assisting with the preparation of an amicus brief. This ensures the integrity of the contractual allocation of attorneys' fees, while allowing for recovery in those instances where amicus related work (responding to amicus briefs) is necessary to adequately represent a client.
c. Settlement Attempts
Substantial time was spent on settlement attempts. "Certainly, time spent on unsuccessful settlement negotiations before trial may materially advance the litigation by narrowing or clarifying issues." M/V Kyowa Violet, 15 FSM R. at 68 (when settlement discussions that took place before the end of trial may have helped to materially advance the litigation, although it may be difficult to tell).
The court's review of the attorneys' hours shows that they spent 37.6 hours on settlement discussions, proposals, and responses before trial started. They spent another 6.6 hours on possible settlement before the court issued its decision. They spent a further 7.1 hours on potential settlement after the decision and judgment had been entered. No settlement was reached and thus these 13.7 work hours were unproductive. The court generally subtracts hours which were unproductive. Id. at 66. "[T]ime spent on unsuccessful settlement negotiations before trial may materially advance the litigation by narrowing or clarifying issues." Id. at 68 (pretrial settlement hours substantially reduced because it was difficult to tell if issues narrowed or clarified). That does not seem to have occurred here. The court will therefore reduce the 37.6 pretrial settlement hours to 6.5 hours (disallowing 31.1 hours).
d. Administrative Matters
A further 9.7 attorney work hours were spent on administrative tasks (including a press release). "Administrative work is considered part of overhead." M/V Kyowa Violet, 15 FSM R. at 70. The court will therefore disallow these 9.7 hours devoted to administrative, instead of legal, tasks. Id. And a further 4.1 hours will be disallowed as either unexplained (including .2 hours whose purpose was entirely redacted) or inadequately explained.
The OAE attorneys also spent 3.6 hours arranging and clarifying the terms and scope of their engagement. "The time and expense hiring needed staff [the OAE attorneys] is not compensable as attorneys' fees." M/V Kyowa Violet, 15 FSM R. at 70. These 3.6 hours will also be disallowed.
e. Hours Summary
The total attorney hours disallowed equal 106.9 hours, thereby reducing the 904.8 hours to 797.9 hours.
C. Hourly Rate
The OAE seeks an fee award at the rate of $238.05 effective rate (based on a billed rate of $275 and hour for work done before March 31, 2023, and $290 for attorney work done after that date as lowered by various discounted hours), which were the rates at which the OAE's attorneys billed the OAE. The court cannot award those rates just because that is what the attorney billed the client. LPP Mortgage Ltd. v. Maras, 12 FSM R. 112, 113 (Chk. 2003). This determination is based on the customary fee in the locality in which the case is tried. Poll v. Victor, 18 FSM R. 402, 404 (Pon. 2012); People of Tomil ex rel. Mar v. M/C Jumbo Rock Carrier III, 17 FSM R. 100, 101 (Yap 2010) ($125 an hour); FSM v. GMP Hawaii, Inc., 17 FSM R. 86, 89 (Pon. 2010) ($125 an hour); Amayo v. MJ Co., 14 FSM R. 355, 361 (Pon. 2006) ($110-$120); M/V Kyowa Violet, 14 FSM R. 403, 421 (Yap 2006).
Telecom contends that any fee award should be in the $120-$130 an hour range. The court notes that the hourly rate has been gradually rising. The court further notes that the Pohnpei Supreme Court has awarded attorney's fees of $150 an hour.
When constructing a fee shifting award, the court can "set two separate hourly rates for a particular attorney – one for 'core' tasks like 'legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders' and a lower one for 'non core' tasks, which are 'less demanding,' such as 'letter writing and telephone conversations.'" Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015) (quoting Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st Cir. 1993); cf. M/V Kyowa Violet, 15 FSM R. at 67 (different rates of compensation can awarded dependent on the litigation task performed, and not strictly according to the position of the person performing it). The court will add e-mailing to the "non-core" list as a modern equivalent of letter writing.
The court's review of the remaining 797.9 hours reveals 40.3 hours of letter (e-mail) writing and telephone conversations – "non-core" tasks. This leaves 757.6 hours of work on "core" tasks.
As noted by Telecom, there were many issues of first impression in this complex matter. Therefore, $150 an hour, the high end of the Pohnpei locality, seems more appropriate for the "core" tasks. The non-core tasks will be compensated at $130 an hour. Attorneys' fees may be enhanced for experienced legal work in difficult, complex cases. M/V Kyowa Violet, 15 FSM R. at 73. But "a fee enhancement is the exception, and not the rule." Id. This was a complex case. Rather than apply a fee enhancement multiplier, as was used in Kyowa Violet, the court will adjust the hourly rate slightly upward and award $165 an hour for the "core" legal work.D. Attorneys' Fees Award
Accordingly, for 40.3 hours of "non-core" legal work, the court will award $5,239 ($130 x 40.3 hours). For the 757.6 hours of "core" legal work, the court will award $125,004 ($165 x 757.6 hours). The attorney fee award totals $130,243.
E. Legal Assistant Fees
The OAE also seeks $2,106 in legal assistant (paralegal) fees billed at $65 an hour for 32.4 hours. A court can award fees where a paralegal performs legal (as opposed to clerical) work, does so under the supervision of an attorney, and is qualified "to perform substantive legal work." Absher Constr. Co. v. Kent Sch. Dist., 917 P.2d 1086, 1088 (Wash. App. Ct. 1995). "Paralegals (and attorneys) are not entitled to compensation for nonlegal work." Conti v. Corporate Servcs. Grp., Inc., 30 F. Supp. 3d 1051, 1080 (W.D. Wash. 2014). Cf. M/V Kyowa Violet, 15 FSM R. at 69, 72, 73, 76 (paralegal fees awarded).
Like attorneys' fees, paralegal fees for administrative work will be disallowed. Therefore .2 hours of the paralegal fee request is disallowed. Paralegal fees of $2,093 are therefore awarded.
The OAE seeks only $10 in costs and expenses for Skype, which was incurred for international calls to witnesses and advisors as a necessary expense in preparation for this court litigation. Telecom did not express any objection to this expense. This reasonable sum is awarded.
NOW THEREFORE IT IS HEREBY ORDERED that the OAE is awarded $130,243 in reasonable and necessary attorneys' fees, $2,093 in paralegal fees, and $10 in costs (total $132,346). The clerk shall issue an amended judgment to reflect that.
_______________________________Footnotes:
1 It may even be a ground to enhance an attorney fee award. See People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM R. 53, 73 (Yap 2007), rev'd on other grounds sub nom., M/V Kyowa Violet v. People of Rull ex rel. Mafel, 16 FSM R. 49 (App. 2008).
2 The twelve-factor attorney-fee test considers: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the attorneys' experience, reputation, and ability; 10) the case's "undesirability"; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 15 FSM R. 53, 65 (Yap 2007).
3 The eight-factor attorney-fee test considers: 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3) the fee customarily charged in the locality for similar legal services; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8) whether the fee is fixed or contingent. M/V Kyowa Violet, 15 FSM R. at 65.
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