N.R. Smith, LLC v. Hicks et al

Filing 43

ORDER granting in part and denying in part 42 Motion for Attorney Fees. The motion is granted insofar as it seeks an award of costs, and an award of costs in the the sum of $850.00 will be included in the judgment in this matter. The motion is denied insofar as it seeks an award of attorney's fees. Signed by Honorable Jimm Larry Hendren on October 6, 2008. (lw)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS H A R R I S O N DIVISION N . R . SMITH, LLC v. C i v i l No. 07-3055 P L AI N TI F F

W A Y N E A. HICKS and LORI HICKS, h u s b a n d and wife; WAYNE HICKS d / b / a Shake It Up Club; MY ICIS, I N C . ; WAYNE HICKS ENTERPRISES, INC. d/b/a Wirestream Internet S e r v i c e s , and d/b/a Wirestream K V B , and d/b/a Wirestream Marketing, a n d d/b/a Wirestream Media, and d / b / a Wirestream Networks, and d / b / a Wirestream Printing, and d / b / a Wirestream Productions, and d / b / a Wirestream Records, and d / b / a Wirestream Security; HOUSE O F ROCK THEATRE, INC.; KIRBY V A N B U R C H THEATRE, INC.; WIRESTREAM I N T E R N E T SERVICES, INC.; WIRESTREAM M A R K E T I N G , INC.; WIRESTREAM MEDIA, I N C . ; WIRESTREAM NETWORKS, INC.; W I R E S T R E A M PRINTING, INC.; WIRESTREAM P R O D U C T I O N S , INC.; WIRESTREAM RECORDS, I N C . ; WIRESTREAM SECURITY, INC. ORDER Now on this 6th day of October, 2008,

D E FE N DA N TS

comes

on

for

c o n s i d e r a t i o n plaintiff's Motion To Award Costs And Attorney Fees ( d o c u m e n t #42), and the Court, being well and sufficiently advised, f i n d s and orders as follows: 1. f r au d , u n de r In this suit, plaintiff alleged and the fraud, constructive transfer of funds

constructive A.C.A.

trust,

conversion, regard to

fraudulent transfer

§4-59-204,

with

t h r o u g h accounts owned or controlled by defendants.

Defendants

d e f a u l t e d , and the Court determined the amount of compensatory d a m a g e s due. 2. c o st s . P l a i n t i f f now moves for an award of attorney's fees and Costs are presumptively recoverable under F.R.C.P.

5 4 ( d ) ( 1 ) , and the motion will be granted to the extent it seeks an a w a r d of costs. a r e taxable: * * * * * * f e e s of the clerk and marshal; c o u r t reporter fees for transcripts necessarily obtained; f e e s for printing and witnesses; f e e s for copies necessarily obtained; d o c k e t fees; and c o m p e n s a t i o n of court appointed experts and interpreters. Pursuant to 28 U.S.C. §1920, the following costs

A review of the bill submitted by plaintiff reflects only two c h a r g e s that arguable fall into one of the §1920 categories: * * $ 5 0 0 . 0 0 to ANB for copies; and $ 3 5 0 . 0 0 to Clerk for filing fee.

T h e Court uses the word "arguably" because there is no showing t h a t the ANB copies were necessarily obtained for use in the case. T h e Court will, however, give plaintiff the benefit of the doubt on t h i s issue, and costs in the amount of $850.00 will be awarded. 3. A t t o r n e y ' s fees are governed in the first instance by

F . R . C . P . 54(d)(2), which requires in relevant part that a motion s e e k i n g same must "specify the judgment and the statute, rule, or

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o t h e r grounds entitling the movant to the award." In the motion now under consideration, no specification of a u t h o r i t y -- other than Rule 54 -- is offered in support. The

C o u r t has, therefore, looked to the Complaint, and the causes of a c t i o n asserted therein under Arkansas law, to determine if they e n t i t l e plaintiff to an award of attorney's fees. P l a i n t i f f ' s causes of action -- fraud, constructive fraud, c o ns t ru c ti v e trust, conversion, and fraudulent transfer under

A . C . A . §4-59-204 -- sound in tort rather than contract. has a statute which provides for attorney's fees in

Arkansas actions

s o u n d i n g in contract, A.C.A. §16-22-308, but does not generally r e c o g n i z e a right to attorney's fees in tort actions. See, e.g.,

S t e i n v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (Ark. 1992). The Court i s aware of no authority under Arkansas law that would support an a w a r d of attorney's fees on plaintiff's tort causes of action. For

t h i s reason, the motion will be denied insofar as it seeks an award o f attorney's fees. I T IS THEREFORE ORDERED that plaintiff's Motion To Award Costs A n d Attorney Fees (document #42) is granted in part and denied in p a rt . The motion is granted insofar as it seeks an award of costs, a n d an award of costs in the sum of $850.00 will be included in the j u d g m e n t in this matter. The motion is denied insofar as it seeks an award of

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a t t o r n e y ' s fees. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT COURT

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