The opinion of the court was delivered by: BODY
Judgment for the plaintiffs was entered in this case on April 5, 1963 against Raymond Cohen, Joseph E. Grace, Edward Battisfore and Edward Walker, defendants herein, in the amount of $ 24,921.41. (Opinion filed April 5, 1963, D.C. 215 F.Supp. 938.) Earlier in the case an injunction was obtained restraining defendants from using any Union funds in defense of certain criminal actions in the courts of Pennsylvania, and in other legal proceedings wherein defendants were charged with acts inimical to the interest of the Union. ( Opinion by Clary, J., D.C. 182 F.Supp. 608 (1960).)
On April 29, 1963 counsel for plaintiffs filed a motion for counsel fees and expenses pursuant to § 501(b) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. (Act). After this motion was pending for more than a month, on June 2, 1963, and three days before argument on the motion scheduled for June 6, 1963, the Union filed a motion for discovery.
This discovery motion, based on Rule 43(e) F.R.Civ.P., and the brief and oral argument of counsel in support thereof, assert that the question of the amount of counsel fees due plaintiffs' counsel cannot properly be decided on the existing record. Counsel for the Union seems to assume that this Court will decide what the proper amount shall be by considering matters dehors the record.
Rule 43(e), F.R.Civ.P. states:
'When a motion is based on facts not appearing of record * * * the court may direct that the matter be heard wholly or partly on oral testimony or depositions.'
In disposing of plaintiffs' motion for counsel fees and expenses, this Court will rely upon:
(1) The affidavits of counsel not submitted on this issue but bearing upon it.
(2) Stipulations of record.
(3) Time spent and explanation thereof by plaintiffs' counsel as revealed by the record.
(4) The dollar amount of the recovery effectuated by plaintiffs' counsel.
(5) The fact an injunction was obtained by plaintiffs' counsel which prevented some further loss to the Union.
(6) The entire benefit created for the Union.
These elements are obviously all a part of the record. Therefore, the rule does not apply to ...