U.S. Commodity Futures Trading Commission v. Wecorp, Inc.

878 F. Supp. 2d 1160, 2012 WL 2989971, 2012 U.S. Dist. LEXIS 103699
District Court, D. Hawaii·Decided July 23, 2012·No. No. 2:09-CV-00153-PMP·Published·Cited by 1 cases

Opinion

ORDER

PHILIP M. PRO,2 District Judge.

Before the Court is Relief Defendant Gary Dubin’s (“Dubin”) Motion for Attorney’s Fees and Costs (Doc. # 286), filed on April 24, 2012. Plaintiff Commodity Futures Trading Commission (“CFTC”) filed an Opposition (Doc. #291) on May 21, 2012. Dubin filed a Reply (Doc. # 293) on June 4, 2012.

The parties are familiar with the facts of this case, and the Court will not repeat them here except where necessary. Dubin moves for attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. CFTC opposes, arguing Dubin has not met his initial burden under the statute of showing the CFTC’s position was not substantially justified or that he meets the eligibility requirements in the statute. CFTC also argues Dubin should not be awarded fees or costs where his own litigation tactics prolonged the lawsuit. CFTC further contends Dubin cannot be awarded fees for [1163]*1163work performed by his. own law firm’s associate who represented Dubin in this case. Finally, CFTC argues Dubin’s fees are unreasonable.

Dubin replies that he can recover for his associate’s fees, as the fees represent lost opportunity costs. Dubin represents that he meets the eligibility requirement for recovery of fees and he will provide a supplement to establish that fact if necessary. Finally, Dubin contends he met his initial burden because he asserted that CFTC’s position was frivolous, the CFTC was overreaching with its initial request for relief, and CFTC brought the relief defendant claim against Dubin without sufficient investigation or evidentiary basis.

A court generally may not award costs or attorney’s fees against the United States absent a statute directly authorizing such an award. United States v. Chem. Found., 272 U.S. 1, 20, 47 S.Ct. 1, 71 L.Ed. 131 (1926). The EAJA is a partial waiver of the United States’ sovereign immunity authorizing a court to award costs and attorney’s fees against the United States in certain circumstances. W. Watersheds Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 985 (9th Cir.2010). Specifically, § 2412(a)(1) authorizes an award of costs. Section 2412(b) authorizes an award of attorney’s fees where the United States would be liable for such fees to the same extent that any other party would be liable under statutory or common law. Finally, § 2412(d)(1)(A) authorizes an award of attorney’s fees unless the court finds the United States’ position was substantially justified or other circumstances would make an award of fees unjust.

A. Jurisdiction

The parties do not address whether the Court has jurisdiction to award costs and fees against the United States under the- EAJA where the Court has dismissed the CFTC’s claim against Dubin for lack of jurisdiction. However, the Court has an independent obligation to examine its own jurisdiction. Hartman v. Summers, 120 F.3d 157, 159 (9th Cir.1997).

By its terms, the EAJA authorizes an award of costs or fees only by a court having jurisdiction of the' action. 28 U.S.C. §§ 2412(a)(1), (b),' (d)(1)(A); see' also Zambrano v. I.N.S., 282 F.3d 1145, 1149-50 (9th Cir.2002) (“In order for a court to award fees under the EAJA, it must have jurisdiction over the underlying action.”). Here, the Court had jurisdiction over the underlying action, which CFTC brought pursuant to the Commodity Exchange Act, 7 U.S.C. § 1, et seq. See 28 U.S.C. § 1331. Additionally, the Court had jurisdiction to determine its jurisdiction over Dubin as a Relief Defendant. (See Order (Doc. # 57) at 4-7.) The Court therefore has jurisdiction to award costs and fees under the EAJA.

B. Costs Under § 2412(a)(1)

Pursuant to § 2412(a)(1), the Court may award the prevailing party costs against the United' States. Only costs set forth in 28 U.S.C. ' § 1920 are awardable. 28 U.S.C. § 2412(a)(1). Any such judgment for costs against the United States must be “limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.” Id.

The CFTC does not dispute Dubin is a prevailing party within the EAJA’s meaning, and CFTC does not specifically address why costs should not be awarded under § 2412(a)(1). This section does not preclude an award of costs where the United States’ position was substantially justified, as does an award of attorney’s fees under § 2412(d)(1)(A). Nor does it require Dubin to demonstrate he meets the [1164]*1164eligibility requirements in § 2412(d)(2)(B), which applies only to a claim for attorney’s fees under subsection (d). Id. § 2412(d)(2)(B) (defining “party” in part to mean an individual with a specified net worth, but only “[f]or purposes of this subsection”). A cost award under § 2412(a)(1) also is not subject to denial or reduction for the prevailing party’s unreasonable protraction of the proceedings. Id. § 2412(d)(1)(C) (allowing the court to reduce or deny an award pursuant to “this subsection” to the extent the prevailing party unreasonably protracted the proceedings).

The Court therefore will allow costs under § 2412(a)(1) and § 1920. However, the Court will reduce the costs claimed as follows. Dubin requests printing and copying costs for various documents in the case, and Dubin charges for five or three copies of each listed document. (Attorney Gary Victor Dubin’s Mot. for Attorney’s Fees & Costs (Doc. # 286), Ex. 2 [“Bill of Costs”] at 1-7.) However, Dubin does not explain why five, or sometimes three, copies of each document were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The Court will allow Dubin printing and copying costs for one copy of each document at Dubin’s requested rate of fifteen cents per page. Additionally, as the parties provided the Court with courtesy copies in this case, the Court will allow printing and copying costs for one copy of each document over fifty pages. The Court also will allow printing and copying costs in the amount of $8,050.25 for the category in Dubin’s Bill of Costs which Dubin identifies as “production of documents.” (Bill of Costs at 8.) Unlike the other copies listed in Dubin’s Bill of Costs, Dubin identifies why five copies of the “production of documents” were obtained, and the Court will allow those costs in full. The Court therefore will allow printing and copying costs in the amount of $3,744.45. The Court also will allow $679.20 in deposition costs pursuant to § 1920(2).

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U.S. Commodity Futures Trading Commission v. Wecorp, Inc., 878 F. Supp. 2d 1160, 2012 WL 2989971, 2012 U.S. Dist. LEXIS 103699 (D. Haw. 2012).

878 F. Supp. 2d 1160 (U.S. Commodity Futures Trading Commission v. Wecorp, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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