Wells Fargo Bank, NA v. Sinnott et al

Filing 102

REPORT AND RECOMMENDATION: recommending that the Court grant in part plaintiff's 96 MOTION for Attorney Fees and Other Costs of Collection, and award Wells Fargo attorney's fees and expenses in the amount of $77,656.86. Objections to R&R due by 12/28/2009. Signed by Judge John M. Conroy on 12/10/09. (hbc)

U N I T E D STATES DISTRICT COURT F O R THE DISTRICT OF VERMONT

W e lls Fargo Bank, N.A., P l a in tif f , v. H o w a rd M. Sinnott II, Janet M. Sinnott, United States Department of Justice, and O c c u p a n ts residing at 20 Monument Ave., Bennington, Vermont, D e f e n d a n ts . Civil Action No. 2:07-CV-169

R E P O R T AND RECOMMENDATION (D o c . 96) O n September 25, 2009, Plaintiff Wells Fargo, N.A. secured summary judgment in this foreclosure action against the Defendants Howard and Janet Sinnott.1 (Doc. 95.) P r e se n tly before the Court is Wells Fargo's Motion for an Award of Attorney's Fees and E x p e n se s pursuant to 12 V.S.A. § 4527 and Federal Rule of Civil Procedure 54(d). (Doc. 9 6 .) For the reasons set forth below, I recommend that Wells Fargo's motion be G R A N T E D in part and that the Court order an award of attorney's fees and expenses in th e amount of $77,656.86. D is c u s s io n In Vermont, a mortgagee may recover attorney's fees incurred in the course of

This Report and Recommendation assumes familiarity with the factual and legal background of this matter a s explained in the Court's prior reports and orders, and only those facts necessary to the present motion will be m e n t i o n e d here. (Docs. 36, 39, 91, 95.)

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p ro s e c u tin g a foreclosure action when the mortgage contains an agreed upon fee shifting p ro v isio n . 12 V.S.A. § 4527; see also Fed. R. Civ. P. 54(d). Whether and how much in f e e s should ultimately be awarded is within the Court's discretion. Id.; Retrovest Assocs., In c . v. Bryant, 573 A.2d 281, 285 (Vt. 1990). In this case, all Parties agree that Wells F a rg o is entitled to an award of fees pursuant to Paragraph 21 of the mortgage (Doc. 4-3 ¶ 2 1 ), but disagree as to the appropriate amount. Wells Fargo asked the Court for an award o f $101,439.92 for the services of its counsel, Gravel & Shea PC (Doc. 96 at 3), but both th e Sinnotts and the United States Department of Justice­a secondary lienholder of the p rop erty­ h av e objected to that sum for various reasons. (Docs. 97, 98.) I. L e g a l Standard T h e availability and calculation of attorney's fees is governed by Vermont state la w .2 Lewis v. S.L. & E., Inc., 629 F.2d 764, 773 (2d Cir. 1980). Attorney's fees awarded u n d e r Vermont law must be reasonable, and trial courts have substantial discretion in d e c id in g what constitutes a reasonable amount under the circumstances of a particular c a s e . Perez v. Travelers Ins. ex rel. Ames Dept. Stores, Inc., 915 A.2d 750, 755 (Vt.

While it is clear that Vermont law governs whether attorney's fees may be awarded, neither Party has addressed whether Vermont or federal law should guide the Court's discretion in calculating a reasonable fee. The government appears to rely primarily on federal case law (Doc. 98 at 3), while Wells Fargo provides no guidance at all. (Docs. 96, 99.) In either case, while there are some technical differences in the standards applied in each jurisdiction (e.g., the Second Circuit refers to a "presumptively reasonable fee" rather than the "lodestar" amount), the touchstone of reasonableness with regard to both the hours billed and the billable rate is the same, and the choice between legal standards would not affect the resolution of this Motion. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 186-190 (2d Cir. 2008); Human Rights Comm'n v. LaBrie, Inc., 668 A.2d 659, 668 (Vt. 1995). Indeed, Vermont has specifically referred to federal law to elucidate its own standards governing the calculation of fees. See L'Esperance v. Benware, 830 A.2d 675, 683 (Vt. 2003) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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2 0 0 6 ); The Electric Man, Inc. v. Charos, 895 A.2d 193 (Vt. 2006). In exercising this discretion, courts should generally "begin with what is referred to a s the `lodestar' amount: `the number of hours reasonably expended on the case multiplied b y a reasonable hourly rate.' From this starting point, the court can `then adjust [] that fee u p w a rd or downward based on various factors,' including `the novelty of the legal issue, th e experience of the attorney, and the results obtained in the litigation.'" Perez, 915 A.2d a t 754-55 (quoting L'Esperance v. Benware, 830 A.2d 675, 683 (Vt. 2003)). The standard for calculating a reasonable hourly rate is "relatively flexible," Perez, 9 1 5 A.2d at 755-56, and the Second Circuit has said that courts should consider all re le v a n t case-specific variables, including those factors set forth in Johnson v. Georgia H ig h w a y Express, Inc., 488 F.2d 714 (5th Cir. 1974),3 along with the prevailing m a rk e tp la c e rates in Vermont for the type of work and the experience of the attorneys. Cabrera v. Jakabovitz, 24 F.3d 372, 392 (2d Cir. 1994); Arbor Hill Concerned C itiz e n s, 522 F.3d at 191. The Court must also determine the number of hours a reasonable attorney would h a v e spent on the litigation, and exclude hours that were not "reasonably expended."

The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19; see also Fine Foods, Inc. v. Dahlin, 523 A.2d 1228, 1231-32 (Vt. 1986) (listing several case-specific factors to consider when setting a reasonable fee).

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H e n s le y v. Eckerhart, 461 U.S. 424, 434 (1983). Hours that are not reasonably expended in c l u d e hours that are "excessive, redundant, or otherwise unnecessary," whether because th e case is overstaffed, the skill of the attorney necessitates extra time, or for some other re a s o n . Id. The Court must ensure that counsel for the prevailing party used appropriate " b illin g judgment," recognizing that "[h]ours that are not properly billed to one's client a ls o are not properly billed to one's adversary pursuant to statutory authority." Id. at 4333 4 (internal quotation marks omitted). Finally, in making adjustments to requested fees, it is within the Court's discretion to deduct a percentage of the hours claimed rather than rule on every submitted time entry. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). II. H o u rly Rate W e lls Fargo's counsel charged $225 per hour for its partners' time, $175 per hour f o r the work of an associate (which totaled only 2.2 of the 418.7 billed hours), and $100 p e r hour for one paralegal's work on the matter. (Doc. 96-2 at 2.) The United States c o n ten d s that these rates are unreasonably high for a Vermont foreclosure action, and, in p a rtic u la r, that Atty. Megan Shafritz's rate of $225 per hour exceeds the Vermont rate for a partner with less than 15 years of experience. (Doc. 98 at 4.) Wells Fargo counters that b o th Atty. Shafritz and Atty. Craig Weatherly­who combined to bill more than 99% of the c h a rg e d hours­worked at a discount below their normal hourly rate. (Docs. 96-2 at 2; 99 a t 3-4.) T h e Court agrees with the government that, when considering all relevant factors, 4

$ 2 2 5 per hour for the time billed by Atty. Shafritz on this matter is excessive. First, since G ra v e l and Shea is a Vermont law firm, the Court cannot conclude that its hourly rates e x c ee d the prevailing market rate for Vermont attorneys as a general matter. But the q u e stio n is what a reasonable client would be willing to pay for the type of work conducted b y the attorneys in this case. United States ex rel. Poulton v. Anesthesia of Burlington, In c ., 87 F. Supp. 2d 351, 356 (D. Vt. 2000) (citing Cabrera, 24 F.3d at 392). It is true that th e affirmative defenses and counterclaims raised by the Sinnotts required work well b e yo n d a typical foreclosure action, but this matter never became the "extraordinarily c o m p lex commercial case" Wells Fargo now claims it to be. (Doc. 99 at 4.) This litig atio n may have been complicated insofar as the precise contours of the Sinnott's arg u m en ts were difficult to discern, but resolving the merits of their claims did not require a particularly high level of expertise beyond the scope of mortgage and foreclosure law. In any event, this case presented nothing as novel or difficult as the First Amendment c h a lle n g e to a city ordinance litigated in White River Amusement Pub, in which this Court re c o g n iz e d that fee "awards made in similar cases in Vermont have thus far peaked at $ 2 2 5 per hour for partners." 2008 WL 2404029, *3 (D. Vt. June 10, 2008) (unpublished). Atty. Shafritz, who performed the bulk of the work on behalf of Wells Fargo in this m a tte r, ably litigated this case to a victory on summary judgment, and achieved excellent re su lts for her client. Further, I agree that the successful defense of counterclaims in this c a se warrants a higher hourly rate than a typical foreclosure action. But it would be u n re a so n a b le to require the Sinnotts to pay the same rate charged by partners litigating 5

c o m p lica ted constitutional issues, particularly in light of Atty. Shafritz's 13 (as opposed to 2 0 or more) years of experience. See Hargrave v. State of Vermont, No. 2:99-CV-128, slip o p . at 15-16 (D. Vt. March 24, 2005) (finding that a range of $180-$225 per hour was re a s o n a b le for a Vermont partner with 20 or more years of experience). Accordingly, a fee award will be calculated based on a $200 per hour rate for Atty. S h a f ritz . Fees for time spent by Atty. Weatherly, who has 30 years of experience, will be c a lc u la te d at his reduced rate of $225 per hour. Finally, time spent by Associate Attorney P a u l Kearney, who has 3 years of experience, and paralegal Elizabeth Mench, will be c a lc u la te d at the rates of $100 per hour and $65 per hour respectively.4 See Id. III. H o u r s Reasonably Expended T h e Sinnott's principal objection to Wells Fargo's proposed fee award is that G ra v e l and Shea spent an excessive number of hours litigating this matter, and that, given th e relatively small amount owed by the Sinnotts on the underlying mortgage, no re a so n a b le client would have authorized such substantial time expenditures. (Doc. 97.) The government echos these concerns, and argues that charging over 400 billable hours re p re se n ts a lack of the requisite "billing judgment" by Wells Fargo's counsel. (Doc. 98 at 6 .) The Sinnotts also argue that Wells Fargo should not recover fees incurred litigating m o tio n s that it lost, particularly its first Motion for Summary Judgment that the Court d e n ie d . (Docs. 19, 36, 39.)

As further explained infra, the .1 hours billed by Gravel and Shea partner Andrew Manitsky, Esq. will be excluded from the fee award.

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A s an initial matter, Wells Fargo's fee award should not be limited by excluding a tto rn e y time spent litigating motions on which it did not prevail. Counsel for Wells Fargo " o b tain e d essentially complete relief," and while the Sinnotts managed to defeat Wells F a rg o 's first summary judgment motion, Wells Fargo eventually prevailed on every claim ra is e d in the litigation. See Hensley, 461 U.S. at 430-32. Further, there is no allegation th a t Wells Fargo brought its unsuccessful summary judgment motion in bad faith; to the co n trary, the Court recognized that "[t]he facts underlying Wells Fargo's foreclosure a c tio n [were] undisputed," but denied the motion to give the Sinnotts an opportunity to litig a te their counterclaims. (Doc. 36 at 7-8.) It was a reasonable strategy for Wells Fargo to seek summary judgment, and it is "entitled to an award of fees for all time reasonably e x p e n d ed in pursuit of the ultimate result achieved in the same manner that an attorney tra d itio n a lly is compensated by a fee-paying client for all time reasonably expended on a m a tte r." Davis v. County of Los Angeles, 1974 WL 180, *3 (C.D. Cal. June 5, 1975) (u n p u b lish e d ); see also Hensley, 461 U.S. at 431. A d d itio n a lly, neither the Sinnotts nor the United States argue that fees incurred d e f e n d in g the Sinnotts' counterclaims should be excluded from the award, such that Wells F a rg o would be compensated only for time spent prosecuting the foreclosure action. See, e .g ., Mortgage Mint Corp. v. Morgan, 708 P.2d 1177, 1180 (Or. App. 1985) ("To obtain a ju d g m e n t of foreclosure, plaintiff had to defend against defendant's . . . counterclaim. Attorney fees incurred in that defense are within the scope of the contractual provisions."); c f. Brennan v. Kunzle, 154 P.3d 1094, 1113 (Kan. Ct. App. 2007) (holding that mortgagee 7

w a s entitled only to attorney fees spent prosecuting foreclosure, and not to fees incurred d e f en d in g mortgagor's counterclaims of fraud, fraudulent and negligent m isre p re se n tatio n s, and breach of implied warranties); Fleet Bank of Maine v. Steeves, 793 F . Supp. 18, 22 n.8 (D. Me. 1992) ("the counterclaim is related to the foreclosure action in s o f a r as it arises from the same factual predicate . . . [t]his relationship, however, is an in s u f f ic ie n t basis for concluding that [the defendant] must pay [the plaintiff's] attorneys' f e e s pertaining to its litigation against the counterclaim."). Of course, even if legally a p p ro p ria te, it is another question whether such fee segregation would be practicable in th is case. But given the Parties' apparent acquiescence, it is a question that need not be a n sw e re d here.5 N e x t, I reject Wells Fargo's argument­made in the course of an eight page pleading th a t contains nary a legal citation­that "`[b]illing judgment' should have nothing to do w ith the determination of a reasonable fee" because Wells Fargo "had the justified ex p ec tation of recovering from Defendants what it had to pay to pursue its foreclosure a c tio n and defend against the Counterclaim." (Doc. 99 at 5.) As the Supreme Court stated w h ile considering an award of attorney's fees under 42 U.S.C. § 1988, "[i]n the private s e c to r, `billing judgment' is an important component in fee setting. It is no less important h ere . Hours that are not properly billed to one's client also are not properly billed to one's a d v e rs a ry pursuant to statutory authority." Hensley, 461 U.S. at 433-34 (quoting Copeland
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Notably, though, Wells Fargo does concede that "[o]nly a very small percentage of the fees and costs incurred by Wells Fargo relate to the prosecution of its foreclosure case," and suggests that such fees were approximately between $10,000 and $15,000. (Doc. 99 at 2.)

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v . Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). Thus, the appropriate inquiry is not w h a t a party would allow its lawyers to charge with the expectation of passing all fees o n to its opponent­a proposition that is both contrary to law and facially absurd­but rather " w h a t a reasonable, paying client would be willing to pay, given that such party wishes to s p e n d the minimum necessary to litigate the case effectively." Simmons v. New York City T ra n sit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks omitted). "Litigation is expensive, but the losing party is required to pay only a reasonable amount o f attorney fees, not the actual amount incurred by the prevailing party who makes no or a m in im a l effort to contain costs." Taylor v. Albina Comty. Bank, 2002 WL 31973738, *5 (D . Or. Oct. 2, 2002) (unpublished). In this case, a reasonable paying client could agree to pay attorney fees equal to or e x c e e d in g the amount owed on the underlying mortgage note because the Sinnotts d e m a n d e d an unknown quantity of damages as a remedy for their counterclaims. (Docs. 1 0 , 36, 39.) Indeed, the Court denied Wells Fargo's first Motion for Summary Judgment p re c is e ly because there were pending counterclaims "and there [was] a plausibility of d a m a g e s against Wells Fargo in excess of the amount due on the note[.]" (Docs. 36 at 9; 3 9 .) Thus, while the mortgage fee shifting provision does not give Wells Fargo license to a c c r u e and pass on unreasonable legal fees with impunity, the ultimate fee award must a c c o u n t for the defense of counterclaims in which monetary damages were sought. R ev iew in g the attorney time records submitted by Wells Fargo with this framework in mind, I find several instances in which its counsel failed to exercise appropriate billing 9

ju d g m e n t by charging for excessive amounts of time, and two instances in which the tasks p e rf o rm e d should not be billed. See Doc. 96-3, Shafritz Decl. ex. A. F irs t, between September 13, 2007 and October 9, 2007, Gravel and Shea billed n e a rly 25 hours in connection with Wells Fargo's first Motion for Summary Judgment. (Doc. 19.) This motion consisted of a two page legal memorandum without a single c ita tio n to authority beyond Federal Rule 56, along with a two page statement of material u n d is p u te d facts (Doc. 20). Similarly, Wells Fargo's Reply Memorandum in further s u p p o rt of its Motion (Doc. 22) contained about two pages of text and evidences no legal re se a rc h beyond consulting the Court's local rules. A summary judgment motion for fo rec losu re may not typically require anything more, but that does not justify billing more th a n 20 hours for work that could have taken half that time. Likewise, as both the United States and the Sinnotts point out, it was excessive for c o u n se l to bill over 130 hours in connection with the subsequent cross-motions for s u m m a ry judgment. (Docs. 71, 75.) The Sinnotts' counterclaims necessitated significant w o rk , and Wells Fargo rationally incurred substantial attorney fees based on the threat of m o n e ta ry damages. But prevailing over what Wells Fargo now characterizes as the S in n o tts' inevitably "doomed" counterclaims did not require counsel to bill over three fulltim e 40 hour weeks. (Doc. 99 at 3.) Some of the billable time spent on these crossm o tio n s was necessarily redundant, though it is impossible to tell from Wells Fargo's s u b m itte d billing records precisely which time entries should be discounted. (Doc. 96-3 at 1 7 -2 1 .) 10

F in a lly, as discussed above, Wells Fargo's position that a fee shifting statute and c o n tra c tu a l provision eviscerated its counsel's obligation to exercise billing judgment is of p a rtic u la r concern, and suggests that Wells Fargo permitted excessive billing on the e x p e cta tio n that it could eventually shift its fees onto the opposing party. Because the fee a w a rd must be limited to what a reasonable client would pay­with the understanding that rea so n ab le clients want to pay the minimum amount necessary to prevail­Wells Fargo's a f f irm a tiv e renunciation of reasonable billing judgment also favors a reduction in billed h o u rs . For these reasons, the Court should impose a 10% reduction on the billable hours c la im e d by Wells Fargo for the work done by Attorneys Shafritz and Weatherly. See g e n e ra lly New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2 d Cir. 1983). Additionally, .7 hours should be deducted from Atty. Weatherly's charges because th a t time was spent preparing a pay-off figure requested by the Sinnotts. See Doc. 96-3, S h a f ritz Decl. ex. A at 6. Under Vermont law, Wells Fargo was statutorily obligated to p ro v id e a statement of the amount required to satisfy the mortgage without charging a fee f o r providing that figure. 27 V.S.A. § 464(a). Thus the Sinnotts reasonably expected to re q u e st a pay-off figure without incurring any fees or charges. Wells Fargo was obviously f re e to consult counsel before providing a pay-off amount, but the resulting attorney's fees s h o u ld not now shift to the Sinnotts. Finally, it appears that Atty. Andrew Manitsky met with Atty. Shafritz for six 11

m in u te s on one occasion to discuss the case, and then never did any other work on the m atter. It is difficult to imagine how those six minutes contributed to Wells Fargo's e v e n tu a l success, and his .1 hour, for which counsel charged $22.50, should be excluded. IV . T h e Lodestar and Other Reductions H a v in g determined the reasonable hourly rates and the hours reasonably expended to charge, the "lodestar" figure is set as follows: A tty. Shafritz A tty. Weatherly A tty. Kearney E liz a b eth Mench $ 2 0 0 per hour $ 2 2 5 per hour $ 1 0 0 per hour $ 6 5 per hour 2 8 9 hours 8 4 .7 hours 2 .2 hours .4 hours T o ta l = = = = = $ 5 7 ,8 0 0 $ 1 9 ,0 5 7 .5 0 $220 $26 $ 7 7 ,1 0 3 .5 0

U n d e r Vermont law, however, the Court may adjust the lodestar figure based on o th e r relevant circumstances. Perez, 915 A.2d at 754-55 (quoting L'Esperance, 830 A.2d a t 683). In this case, I find that a further 5% reduction is warranted because counsel o v e rs ta f fe d the matter, and consequently generated legal bills higher than if work had been p ro p e rly delegated to associates with lower rates, or to staff with no hourly charge at all. See Copeland, 641 F.2d at 902 (permitting an across-the-board reduction to attorney's fee re q u e st). All but 2.2 of the 418.7 billed hours in this matter were spent by partners billing a t the rate of $225 per hour. (Doc. 96-3, Shafritz Decl. ex. A.) As a result, Gravel and S h ea charged $225 per hour for tasks such as ordering a transcript of a discovery 12

c o n f ere n c e, conducting substantial amounts of online legal research, holding a "telephone c o n f e re n c e with court law clerk re: recent submission," and filing court documents. Id. at 9 , 18-21. Moreover, since the firm recorded its time in blocks rather than by each specific ta sk , it is often impossible to tell how much time was spent on a particular task and th e re f o re whether such time was reasonably expended. I cannot find that a reasonable c lie n t would pay the rate of $200 or $225 per hour for the performance of such ta s k s ­ p a r tic u l a rly when the precise amount of time spent is unknowable­and these in s ta n c e s of overstaffing support an over-all reduction in the fee award. See Hensley, 461 U .S . at 434 (recognizing that "[c]ases may be overstaffed" and fee requests reduced a c c o rd in g ly); Daggett v. Kimmelman, 617 F. Supp. 1269, 1282 (D.N.J. 1985) ("It was the f e e applicant's prerogative to staff every task involved in this case with partners, but that d o es not automatically entitle the law firm to recover `partner rates' for everything."). A c c o rd in g ly, the amount in attorney's fees awarded to Wells Fargo should be a d ju s te d to $73,248.33. V. P r e j u d g m e n t Interest W e lls Fargo also seeks prejudgment interest on the fee award, and it proposes, w ith o u t explanation, $3,591.39 in interest. The government objects, and argues that p re ju d g m en t interest on contested attorney fees is inappropriate under Vermont law. T h e award of prejudgment interest in this case is a matter of state law. Marfia v. T .C . Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998); Tobin v. Liberty Mut. Ins. Co., 553 F .3 d 121, 146 (1st Cir. 2009) ("It is well established that prejudgment interest is a 13

s u b s ta n tiv e remedy governed by state law when state-law claims are brought in federal c o u rt" ). In Vermont, a prevailing party is entitled to prejudgment interest when damages a re liquidated or readily ascertainable. EBWS, LLC v. Britly Corp., 928 A.2d 497, 509 (Vt. 2 0 0 7 ). Prejudgment interest may also be awarded within the discretion of the Court when th e plaintiff was harmed by the delay in reimbursement. Estate of Fleming v. Nicholson, 7 2 4 A.2d 1026, 1031 (Vt. 1998). A "liquidated claim is one whose amount is settled or d e te rm in e d , especially by agreement." Salatino v. Chase, 939 A.2d 482, 488 (Vt. 2007); s e e also Asian Imports, Inc. v. Pepe, 633 So. 2d 551, 552-53 (Fla. Dist. Ct. App. 1994) (" D a m a g e s are liquidated when the proper amount to be awarded can be determined with e x a ctn e ss from the cause of action as pleaded, i.e., from a pleaded agreement between the p a rtie s, by an arithmetical calculation or by application of definite rules of law.") In Vermont, it is unclear whether attorney's fees are "liquidated" before the Court d e te rm in e s the exact amount to be paid. The government contends that by opposing the p r o p o s e d fee award, the Sinnotts and the government have forced upon the Court the task o f calculating fees, and the exact quantity of fees is neither liquidated nor ascertainable p r io r to that calculation. (Doc. 98 at 5.) Further, the Vermont Supreme Court has also c ite d favorably the proposition that "for purposes of prejudgment-interest awards . . . atto rne y's fees are not liquidated until fixed by the trial court following discretionary

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c a lc u la tio n s [ .]" Salatino, 939 A.2d at 488.6 W e lls Fargo has not responded to these arguments, and provides no argument or a u th o rity to show that the fee award it seeks is "liquidated or reasonably ascertainable" for th e purpose of prejudgment interest. (Doc. 99.) Moreover, Wells Fargo has not explained h o w or from where it derived its prejudgment interest figure of $3,591.39, and has not su b m itte d any evidence or even argument to show that it has been harmed by the delay in p aym en t of attorney fees. Under these circumstances, the Court should not award p re ju d g m e n t interest, and $3,591.39 should be deducted from Wells Fargo's claimed fee a w a rd . V I. E x penses T h e United States does not object to Wells Fargo's itemized list of expenses, and th e Sinnotts' only objection is to the $2,360.48 claimed for the cost of online legal re se a rc h . (Doc. 97 at 3.) For litigation that spanned over two years and ultimately re q u ire d significant briefing, I find that such expense on legal research is reasonable, and th e Court should add the full amount of claimed expenses ($4,408.53) to Wells Fargo's fee a w a rd .

The extent to which this observation by the Vermont Supreme Court controls the present case is unclear, because the court distinguished its analysis in Salatino from a case in which, as here, "the fees at issue had already been incurred and billed; although the parties disputed the precise amount, it was susceptible to calculation by the court." Salatino, 939 A.2d at 488. In Salatino, by contrast, the parties were merely speculating about a quantity of attorney fees yet to be incurred. Id.

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C o n c lu s io n F o r the reasons set forth above, I recommend that the Court GRANT in part Wells F a rg o 's Motion for an Award of Attorney Fees and Expenses (Doc. 96), and award Wells F a rg o attorney's fees and expenses in the amount of $77,656.86. D a te d at Burlington, in the District of Vermont, this 10 th day of December, 2009.

/s / John M. Conroy John M. Conroy U n ite d States Magistrate Judge

A n y party may object to this Report and Recommendation within 14 days after service by f ilin g with the clerk of the court and serving on the magistrate judge and all parties, w r itte n objections which shall specifically identify the portions of the proposed findings, re c o m m e n d a tio n s or report to which objection is made and the basis for such objections. Failure to file objections within the specified time waives the right to appeal the District C o u rt's order. See Local Rules 72(a), 72(b), 73; 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b), 6(a) and 6(d).

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