for an hourly rate of $ 275 does not satisfy the requirement that plaintiff submit evidence to the Court regarding "the rate 'prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Miele, 831 F.2d at 409 (quoting Blum, 465 U.S. at 896 n.11). Second, the statement that the sum of $ 275 was previously discussed before this Court is inaccurate. Although plaintiff's attorney has submitted the transcript of a hearing in which the sum of $ 225 per hour was mentioned, the sum of $ 275 was never discussed. Third, plaintiff's attorney's suggestion that this Court expressed approval for the rate of $ 225 per hour is misleading. Having reviewed the transcript, this Court does not believe that it can fairly be interpreted as expressing any approval of the rate of $ 225 per hour. Moreover, while plaintiff's counsel is correct in noting that this Court did not find that the claimed rate was unreasonable, this Court also did not find that the rate was reasonable. This Court simply made no finding regarding whether plaintiff's proposed rate of $ 225 was reasonable. Plaintiff's attorney's suggestion that this previously Court expressed approval of his hourly rate treads upon the line that separates overzealous advocacy from affirmative misrepresentation. Counsel is warned that the factual inaccuracies in his submissions are an invitation to sanctions.
Schwartz argues that "the counsel fee request is wholly disproportionate to the dollar amount of the controversy." (Schwartz's November 19, 1993, Brief at 9.) Schwartz contends that it is unreasonable to award a "$ 20,000.00 counsel fee . . . for professional services alleged and incurred in litigating title to a $ 3,000.00 asset." Id. at 10.
Schwartz's claim is meritless because he has entirely failed to appreciate the fact that this litigation does not concern title to any asset, but rather it concerns plaintiff's costs in enforcing an order of this Court. Schwartz disregarded this Court's order by writing and delivering a letter to the Sheriff, which caused the Sheriff to cancel the sale of the Lincoln Towne Car. Thus, the central question in the instant case is: what are the reasonable costs of prosecuting Schwartz's contempt? These reasonable costs must be determined by analyzing the time and effort that plaintiff expended in litigating the contempt issue, and the price of the car is simply irrelevant.
Multiplying the 58.25 hours that plaintiff's attorney reasonably expended in prosecuting Schwartz's contempt in this Court by the reasonably hourly rate of $ 150 per hour, this Court finds that plaintiff's reasonable attorneys' fees in prosecuting Schwartz's contempt in this Court are $ 8,737.50. Adding plaintiff's reasonable expenses of $ 591.75 to this total, this Court finds that plaintiff's total reasonable costs for prosecuting Schwartz's contempt in this Court are $ 9,329.25.
B. Plaintiff's Costs of Appealing this Court's August 10. 1994, Memorandum and Order
Plaintiff also moves to recover her costs of appealing this Court's August 10, 1994, Order, in which this Court declined to award any attorneys' fees to plaintiff. Plaintiff claims that these costs total $ 19,590.07. Schwartz contends that plaintiff is not entitled to recover any of her costs of appealing this Court's order.
Plaintiff's claim raises the issue of whether a party's reasonable costs of prosecuting a contempt include the party's costs of appealing a district court's ruling that the party is not entitled to any damages. Although this issue appears to be one of first impression in this circuit, other circuits have split on this issue. Compare Lander v. Morton, 171 U.S. App. D.C. 146, 518 F.2d 1084, 1088 (D.C. Cir. 1975) ("Expenses relating to appeal should not be included in any award of compensation.") and Nelson v. Steiner, 279 F.2d 944, 948 (7th Cir. 1960) (costs on appeal not included in reasonable costs of prosecuting contempt) with Schauffler v. Unit Ass'n of Journeymen & Apprentices, 246 F.2d 867, 870 (3d Cir. 1957) ("Because it was the order of the district court which was violated, that court may assess costs of litigation in the contempt proceedings regardless of the court in which the expenses were incurred.").
This Court holds that it is inappropriate to award plaintiff costs on appeal in the instant case. A civil contempt fine is analogous "to a tort judgment for damages caused by wrongful conduct," Vuitton, 592 F.2d at 130, and the costs that plaintiff incurred on appeal simply were not caused by Schwartz's wrongful conduct. Rather, plaintiff needed to appeal this Court's August 10, 1994, Memorandum and Order because of this Court's short-sighted view of the law in this circuit. Thus, plaintiff's costs were not a result of Schwartz's conduct.
Even if this Court were to follow the precedent set in the Third Circuit, which permits a party to recover costs on appeal, this Court believes that such costs are inappropriate in the instant case. Under the Third Circuit's formulation, a district court has discretion to award costs on appeal. See Schauffler, 246 F.2d at 870 ("court may assess costs of litigation in the contempt proceedings regardless of the court in which the expenses were incurred") (emphasis added). In the instant case, even if this Court has discretion to award damages on appeal, this Court does not believe that such damages are warranted. Therefore, plaintiff's motion to recover her costs on appeal is denied.
IT IS HEREBY ORDERED that Barry Schwartz pay $ 9,329.25 to plaintiff, Carole Heller Weitzman.
Dated: New York, New York
June 29, 1995
David N. Edelstein