The opinion of the court was delivered by: ROBERT L. CARTER
Pursuant to the order of this court issued August 17, 1994, Pressman v. Estate of Steinvorth, 860 F. Supp. 171, 177 (S.D.N.Y. 1994) (Carter, J.), plaintiff Alan Pressman seeks attorney's fees and expenses incurred in the commencement of this interpleader action in the amount of $ 30,579.94.
Guido Steinvorth, a Venezuelan citizen, died in March, 1984, leaving a will naming defendant Olimpia Pena Tejera the universal heir of his estate. The will was subsequently contested in the Venezuelan courts. At the time of Steinvorth's death, Pressman, a New York attorney, was holding various assets for Steinvorth. In 1984, several claimants to the estate filed numerous actions (the "earlier actions") against Pressman in federal court and New York state court seeking to recover some of those assets. In response, Pressman commenced this interpleader action in 1986.
In the course of this action, Pressman has sought not only to pay the contested funds into court but also to recover attorney's fees and expenses he incurred in connection with the earlier actions. Defendant Pena has brought a counterclaim and a separate action to force Pressman to provide an accounting of the Steinvorth assets in Pressman's possession. The separate accounting action was subsequently consolidated with this interpleader action.
In 1989, this court ordered Pressman to turn over to the court all Steinvorth funds in his possession. Pressman v. Estate of Steinvorth, 1989 U.S. Dist. LEXIS 8967, No. 86 Civ. 0395, 1989 WL 74937 (S.D.N.Y. Aug. 1, 1989) (Carter, J.). Finding that he had not provided an adequate accounting of all the funds, however, the court refused to discharge him. Id. The court also stayed all proceedings in the case pending decision on the Steinvorth will by the Venezuelan courts. In 1991, the Venezuelan Supreme Court named Pena universal heir, and this court subsequently awarded the interpleader funds to her. Pressman, 860 F. Supp. at 177. The court denied motions brought by Pressman for Rule 11 sanctions against Pena and for attorney's fees for Pressman's efforts in defending the Steinvorth estate in the earlier actions. Id. at 182. The court did, however, grant Pressman attorney's fees and expenses incurred in commencing the interpleader action. Id. at 183. The court stressed that the fees should be "a relatively small amount simply to compensate for initiating the proceedings" and noted that Pressman was "not entitled to be reimbursed for any other expenses -- i.e. the costs and fees associated with the Earlier Actions and his defense of the claims against him for an accounting." Id.
District courts have wide discretion in awarding costs and attorney's fees to disinterested stakeholders. Clarkson Co. v. Shaheen, 533 F. Supp. 905, 919 (S.D.N.Y. 1982) (Owen, J.). Fees may be awarded to cover the costs of preparing, filing and litigating the interpleader action, see, e.g., Algemene Bank Nederland, N.V. v. Soysen Tarim Urunleri Dis Ticaret Ve Sanayi, A.S., 748 F. Supp. 177, 184 (S.D.N.Y. 1990) (Leval, J.), but they may not be awarded to cover costs that the stakeholder would have incurred in the ordinary course of business, Chemical Bank v. Richmul Assoc., 666 F. Supp. 616, 619 (S.D.N.Y. 1987) (Pollack, J.), or to cover costs regarding any portion of the interpleader action in which the stakeholder was an interested party. Gould, Inc. v. Pension Benefit Guar. Corp., 589 F. Supp. 164, 169 (S.D.N.Y. 1984) (Motley, J.). The amount of the fees awarded varies according to the complexity of the action and the amount of discovery and motion practice involved. Chemical Bank, 666 F. Supp. at 619.
The Second Circuit ruled in 1983 that attorneys seeking fees bear the burden of proving their expenses by submitting contemporaneous time records specifying "the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983). Since then, this circuit has allowed attorneys to submit summaries of contemporaneous records accompanied by affidavits stating that the summaries are accurate and based on contemporaneous records. Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994).
In support of his fee request, Pressman has submitted invoices accompanied by an affidavit by attorney William P. Larsen, III stating that the invoices "were issued by D'Amato & Lynch for the services and disbursements incurred with respect to this action and related matters." (Larsen Aff. P 3.) Pena avers that Larsen did not start working on the case until six years after service of the complaint and requests the court to deny the fee request on the grounds that the application "is not supported by the affidavit of someone with personal knowledge of the work done to commence the interpleader." (Minkoff Aff. P 5.) This objection is not fatal to the fee request. The purpose of an affidavit in this context is not to reiterate on the basis of actual knowledge the specific time charges in the time records but rather to assure the court that the time records are accurate. See, e.g., Pastre v. Weber, 800 F. Supp. 1120, 1124 (S.D.N.Y. 1991) (Knapp, J.) (permitting use of computer printouts of hours where counsel represented that print-outs set forth verbatim the entries on actual time sheets). Pena does not question the accuracy of the invoices, the existence of the underlying records, or the competence of Larsen to affirm the accuracy of the invoices and time records, so the court has no basis for denying the fee request in full.
Pena also contends that the invoices are insufficiently specific, and this objection is more serious. Although the invoices generally break down the type of work performed by Pressman's counsel, stating, for example, "telephone conversation," "prepare correspondence," or "review of file," they often fail to state the legal matter that the activity concerned, for example the interpleader action or the accounting action. This information is crucial to the court's determination because Pressman may be reimbursed only for his counsel's work in commencing the interpleader action. Larsen states in his affidavit that the invoices include only "those services and expenses relating directly to the preparation and actual filing and service of the interpleader complaint," (Larsen Aff. P 2), but this statement is not credible because the invoices include many charges unrelated to these matters. See discussion infra pp. 5-10. Therefore, charges for which there is no legal matter specified will not be reimbursed.
In 1985, Pressman responded to letters rogatory issued in the Venezuelan will proceedings in 1985. He argues that he should be reimbursed for the work his attorneys performed in this regard because the letters rogatory pertained to "the very action[s] which led to the filing of the interpleader." (Larsen Reply Aff. P 10.) This argument ignores the court's previous holding that Pressman may not be ...