MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' REVISED MOTION FOR FEES AND COSTS
M. DAVIS, JUDGE.
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:
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
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
jury found in favor of Officer Daller. The Court entered
judgment in favor of Officer Daller on September 22, 2017.
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.
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.
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. When the verdict is for the defendant,
the determination of costs is awarded under Rule 54 rather
than Superior Court Civil Rule 68. As such, the Court will
apply standards under Rule 54 and not Rule 68.
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
This Court does not include photocopying as a cost under Rule
54(d). Therefore, Officer Daller is entitled to
his filing, postage, and courier fees-totaling $236.65.
Court reporter fees may be taxed as costs, but "shall
not be taxable costs unless introduced into
evidence." This includes the costs for depositions
which "may not be awarded unless the deposition was
introduced into evidence in its entirety." 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.
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." 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 . . . ." Witness fees under Section 8906
"should be limited to time necessarily spent in
attendance upon the court for the purpose of
testifying." A party may not recover for "time
spent preparing for trial" including "time
spent listening to other witnesses for 'orientation',
or in consulting and advising with . . . counsel. . .
." Travel time to and from the courthouse
and time spent waiting in the courthouse to be called as a
witness are appropriate.
"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.'" 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." The party may recover one-half
the experts hourly rate in addition to the travel
Alternatively, a party may recover a fee for one-half day
interruption of the expert's day. 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. The Court found that one-half
day equals three hours. However, if a party submits a full
invoice "without adequate itemization, the Court may
decline to award costs."
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." 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
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 ...