The opinion of the court was delivered by: MUNSON
The instant motion is the culmination of litigation arising from a failed business relationship between Ismail Abou-Khadra and Abdallah G. Bseirani. The relationship began in late 1978 when George T. Mahshie introduced the two parties and continued until the early 1980's when Mr. Bseirani and Mr. Abou-Khadra had a falling out over the operation and control of two companies, Contract Services Establishment and Saudi Preinsulated Pipes Industries.
Initially, the Bseirani Parties commenced an action against Mr. Mahshie in state court, which ultimately was settled. The Abou-Khadra Parties commenced suit in this court against a number of defendants, including the Bseirani Parties and Mr. Mahshie. The Bseirani Parties asserted seventeen counterclaims against the Abou-Khadra Parties, Mr. Mahshie and others in the federal action. Included in these counterclaims were alleged violations of RICO, 18 U.S.C. §§ 1961-1968. The jury found against the Abou-Khadra Parties on their claims against the Bseirani Parties and for the Bseirani Parties on their counterclaims against the Abou-Khadra Parties and Mr. Mahshie, including those alleging violations of RICO.
On appeal, the Second Circuit affirmed the finding of liability against the Abou-Khadra Parties and set aside the finding of liability against Mr. Mahshie, ordering a new trial for Mr. Mahshie only. Abou-Khadra v. Bseirani, 4 F.3d 1071 (2d Cir. 1993). Upon remand, the jury found in favor of the Bseirani Parties on all claims against Mr. Mahshie, including two violations of RICO. The Second Circuit affirmed these findings. Bseirani v. Mahshie, 1997 U.S. App. LEXIS 180, 1997 WL 3632 (2d Cir. 1997).
The Bseirani Parties now move to recover the attorney's fees and costs incurred as the result of successful litigation of their counterclaims against Mr. Mahshie and the Abou-Khadra Parties.
In support of their motion the Bseirani Parties have submitted billing memoranda detailing the legal services rendered between June 17, 1985 and May 31, 1995. These records reveal that the Bseirani Parties seek a total award (fees and costs) of $ 952,777.37 apportioned as follows: $ 632,118.47 against the Abou-Khadra Parties and $ 320,658.90 against Mr. Mahshie. In addition, the Bseirani Parties acknowledge that a portion of the time spent litigating these claims and the associated costs are common to claims against both Mr. Mashie and the Abou-Khadra Parties. Thus, they request that $ 238,664.58 of the total award be deemed joint and several.
Mr. Mahshie objects to the motion on the basis that the Bseirani Parties have failed to provide sufficient detail to permit the court to apportion the costs between the Abou-Khadra Parties and Mr. Mahshie. Therefore, Mr. Mahshie asks the court either to order the Bseirani Parties to resubmit their application in more detail or to reduce the requested amount to reflect only those fees and costs necessarily incurred in the second trial.
I. Reasonable Attorney's Fee
Under the "American System" each party in a lawsuit usually bears the burden of paying its own attorney's fees and costs. Hensley v. Eckerhart, 461 U.S. 424, 429-30, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). Certain statutes, however, provide that the successful party may recover such fees and costs from the adverse party. Alyeska, 421 U.S. at 247-271. The Bseirani Parties rely upon section 1964(c) of RICO as the basis for their request.
In relevant part this statute provides that: "any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." 18 U.S.C. § 1964(c). An applicant for an award under § 1964(c) bears the burden of establishing entitlement to such an award and documenting the appropriate hours expended and the hourly rates. Hensley, 461 U.S. at 424. Therefore, the court initially must inquire whether the Bseirani Parties properly have demonstrated their entitlement to ...