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Hajali v. Daller

Superior Court of Delaware

November 9, 2017

OFFICER ANDREW W. DALLER individually and in his official capacity as a NEW CASTLE COUNTY, DELAWARE POLICE OFFICER Defendant.


          ERIC M. DAVIS, JUDGE.

         Upon consideration of the Defendants' Motion for Fees and Costs (the "Original Motion") filed by Defendant Andrew W. Daller on October 1, 2017; Plaintiff's Response in Opposition to Defendant's Revised Motion for Fees and Costs (the "Original Response") filed by Plaintiff Zohra Hajali on October 3, 2017; the arguments made in support of the Original Motion and Original Response at a hearing (the "Hearing") held on October 16, 2017; the Offer of Judgment filed by Officer Daller on January 4, 2016; the Defendants' Revised Motion for Fees and Costs (the "Second Motion") filed by Officer Daller on October 24, 2107; the Plaintiff's Response in Opposition to Defendant's Second Revised Motion for Fees and Costs filed by Ms. Hajali on November 2, 2017; and the entire record of this civil action:

         1. This is a civil action arising out of an arrest and detainment of Zohra Hajali. Ms. Hajali sued Officer Andrew Daller for: (1) violation of Fourth and Fourteenth Amendments for fabrication of evidence; (2) violation of 42 U.S.C. §1983 based on Fourth Amendment unlawful detention; (3) malicious prosecution; (4) state malicious prosecution; (5) wanton negligence county and municipal tort claims act.[1]

         2. The Court held a five-day jury trial from September 18, 2017 through September 22, 2017. Ms. Hajali called six witnesses and testified herself. Officer Daller called two witnesses and testified himself. The two witnesses called by Officer Daller were expert witnesses-Dr. Carol Tavani and Mark Dunston.

         3. The jury found in favor of Officer Daller.[2] The Court entered judgment in favor of Officer Daller on September 22, 2017.

         4. Officer Daller filed the Motion under Superior Court Civil Rule 54 ("Rule 54"). Ms. Hajali opposed the Motion, submitting the Response. On October 16, 2017, the Court held the Hearing and heard from the parties on the relief sought in the Motion. During argument, Officer Daller notified the Court that Officer Daller had made the Offer of Judgment prior to trial. Officer Daller indicated that Ms. Hajali refused the Offer.

         5. The Court ordered Officer Daller to file supplemental briefing to determine if the Offer allowed any additional costs. In addition, the Court offered insights as to the types of costs and fees it would award under Rule 54 and the type of proof that should be submitted to support an award. Officer Daller filed the Second Motion on October 24, 2017. Soon thereafter, Ms. Hajali filed the Second Response.

         6. Applicable Law. Rule 54, along with 10 Del. C. § 5101 and 10 Del. C. § 8906, allows the prevailing party to recover certain costs associated with litigation, so long as the prevailing party makes an application to the Court within ten days after the entry of final judgment.[3] When the verdict is for the defendant, the determination of costs is awarded under Rule 54 rather than Superior Court Civil Rule 68.[4] As such, the Court will apply standards under Rule 54 and not Rule 68.

         7. Administrative Costs. The Court may grant costs associated with the filing and service of the complaint in addition to the Prothonotary's docket entries and trial fee.[5] This Court does not include photocopying as a cost under Rule 54(d).[6] Therefore, Officer Daller is entitled to his filing, postage, and courier fees-totaling $236.65.

         8. Court reporter fees may be taxed as costs, but "shall not be taxable costs unless introduced into evidence."[7] This includes the costs for depositions which "may not be awarded unless the deposition was introduced into evidence in its entirety."[8] Neither party introduced any deposition in its entirety into evidence. Ms. Hajali played a redacted video of Officer Daller's deposition. Because the depositions were not introduced into evidence, Officer Daller is not entitled to recover the cost for any deposition.

         9. Expert Witnesses. Rule 54 also provides that "fees for expert witnesses testifying on deposition shall be taxed as costs pursuant to 10 Del. C. § 8906."[9] Section 8906 provides that, "the fees for witnesses testifying as experts . . . in the Superior Court . . . shall be fixed by the Court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case . . . ."[10] Witness fees under Section 8906 "should be limited to time necessarily spent in attendance upon the court for the purpose of testifying."[11] A party may not recover for "time spent preparing for trial"[12] including "time spent listening to other witnesses for 'orientation', or in consulting and advising with . . . counsel. . . ."[13] Travel time to and from the courthouse and time spent waiting in the courthouse to be called as a witness are appropriate.[14]

         10. "Remuneration is calculated at the expert's hourly rate for the time spent testifying and traveling to court. However, the same rate does not apply to both activities. While traveling to and from court, an expert witness 'retains a certain amount of freedom to do other compensable tasks and his efforts are not solely confined to working on [the] case.'"[15] The Court has previously held that "one-half of the expert's hourly rate is a reasonable award for the time the expert spent traveling to and from the courthouse."[16] The party may recover one-half the experts hourly rate in addition to the travel expenses.[17]

         11. Alternatively, a party may recover a fee for one-half day interruption of the expert's day.[18] Generally, the Court will round the one-half day interruption as a flat fee or three hours at the expert's hourly rate. When the half day interruption fee is greater than the actual time the expert spent testifying, the fee can cover a local expert's travel expenses.[19] The Court found that one-half day equals three hours.[20] However, if a party submits a full invoice "without adequate itemization, the Court may decline to award costs."[21]

         12. Costs associated with Mr. Dunston. After reviewing the Motion, the Second Motion and accompany exhibits, the Court finds that the costs relating to Mr. Dunston must be reduced. Officer Daller cannot recover for Mr. Dunston's initial report. Experts create initial reports in preparation of trial. This Court limits the costs to "time necessarily spent in attendance upon the court for the purpose of testifying."[22] Although this includes the time spent traveling to and from the courthouse, it does not include the time spent preparing an initial report even if the expert relies upon the report during their testimony. Similarly, a party cannot recover costs for an expert to listen to other witnesses. Therefore, Officer Daller is not entitled to recover the costs for Mr. Dunston's initial report.

         13. Officer Daller seeks $3, 600 for Mr. Dunston's trial attendance. The Court finds this request excessive given the lack of supporting information provided by Officer Daller. The Court might approve a request for a flat fee if the applicant provided a fee letter or other type of supporting information that such flat fees are acceptable in the market place. Officer Daller, despite instructions from the Court at the Hearing, failed to provide such information. The Court will, therefore, apply Mr. Dunston's hourly rate. Mr. Dunston testified for nearly two ...

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