Which Is It — “Attorneys’ Fees” or “Attorney’s Fees” or “Attorney Fees” or “Attorney Fee” or “Attorneys’ Fee” or “Attorney’s Fee”?

Daybreak, Inc. v. Friedberg, 2013 U.S. Dist. LEXIS 77366 (D.V.I. June 3, 2013):

Before the Court is the motion of the plaintiff/counterclaim defendant Daybreak, Inc., doing business as Huber & Associates ("Daybreak"), for attorneys' fees and costs.

Footnote 1. Before addressing the merits of the fee petition, the court must address a threshold issue of style. Is Flagstar's petition best read as a request for its (1) "attorney fee;" (2) "attorney fees;" (3) "attorney's fee;" (4) "attorney's fees;" (5) "attorneys fee;" (6) "attorneys fees;" (7) "attorneys' fee;" or (8) "attorneys' fees"? In this district, the issue is one of first impression, but it has been addressed by several other courts. See Hobbs v. Blue Cross Blue Shield, 276 F.3d 1236, 1239 n.2 (11th Cir. 2001) (holding "attorney's fees" is proper use, except when quoting other authorities); Haymond v. Lundy, 205 F. Supp. 2d 403, 406 n.2 (E.D. Pa. 2002) (following the Supreme Court style manual by using "attorney's fees"); but see Ridder v. City of Springfield, 109 F.3d 288, 290 n.1 (6th Cir. 1997) (surveying the "landscape" and adopting "attorney fees" as an acceptable, though possibly "inelegant," form because of its similarity to terms such as "counsel fees" or "expert witness fees"); Stallworth v. Greater Cleveland Regional Transit Auth., 105 F.3d 252, 254 n.1 (6th Cir. 1997) (discussing conflicting authorities, and adopting use of "attorney fees"); see also Walker v. Bain, 65 F. Supp. 2d 591, 596 n.2 (E.D. Mich. 1999) (following Stallworth in using "attorney fees").

In Haymond v. Lundy, 205 F. Supp. 2d 403 (E.D. Pa. 2002), the District Court for the Eastern District of Pennsylvania adopted the Supreme Court's Style Manual's recommendation of "attorney's fees," although noting that the Supreme Court was not consistent in its usage of that phrasing. Compare Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) ("attorney's fees"); Anderson v. Johnson, 530 U.S. 1269, 120 S. Ct. 2737, 147 L. Ed. 2d 997 (2000) ("attorneys fees"); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) ("attorney's fees"). The Third Circuit has been likewise inconsistent. Compare Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 349 (3d Cir. 2001) ("attorney's fees"); Foley v. IBEW Local Union 98 Pension Fund, 271 F.3d 551, 552 (3d Cir. 2001) ("attorneys' fees"); Zucker v. Westinghouse Elec. Corp., 265 F.3d 171, 172-177 (3d Cir. 2001) (using, alternately, "attorney's fees," "attorneys fees," "counsel fees," and "attorney's fee"). The Federal Rules of Civil Procedure are also inconsistent. The relevant rule, Federal Rule of Civil Procedure 54(d)(2), discusses awards of "attorney's fees." However, the Advisory Committee Notes to this subsection, added in 1993, use alternately "attorneys' fees," "attorney fees," and "attorney-fee motions."

As the Haymond court noted, there are a number of possible ways to resolve this confusion. For example, "vary[ing] [the] style depending on the statutory basis for the fee in question;" "vary[ing] style depending on the fee petition at issue;" or "adopt[ing] a uniform style, except for direct quotations." Haymond, 205 F. Supp. 2d at 406 n.2. The Haymond court opted for a uniform style.

Here, the underlying statute at issue in this case, V.I. Code Ann. tit. 5, § 541, uses the phrase "attorney's fees." This is consistent with the text of Rule 54 and our sister court in the Eastern District of Pennsylvania.

On balance, the Court finds that the use of the term "attorney's fees" is appropriate. Thus, in this and all subsequent opinions, this court will use "attorney's fees" to denote those sums now under consideration. Any other usages will likely be quotations from other sources.

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