Natures Way Marine, LLC v. EverClear of Ohio, Ltd. et al
ORDER granting in part and denying in part 212 Motion for pre-judgment interest, attorneys' fees, and litigation expenses; and awarding Natures Way $69,336.15 in attorneys' fees, and prejudgment interest at an annual rate of 3.25%. Natures Way is not awarded expert witness fees or expenses. Signed by Judge Callie V. S. Granade on 4/17/2015. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NATURES WAY MARINE, LLC,
EVERCLEAR OF OHIO, LTD.,
and NIRK MAGNATE HOLDING
) CIVIL ACTION NO. 12-316-CG-M
Natures Way Marine, LLC (“Natures Way”) filed a motion for prejudgment interest, attorneys’ fees, and litigation expenses. (Doc. 212, Exhs. 1
– 4). Everclear of Ohio, Ltd. (“Everclear”) and Nirk Magnate Holding Corp.
(“Nirk Magnate”) (together, “Defendants”) filed a response in opposition.
(Doc. 213). Natures Way then filed a reply (Doc. 223, Exhs. 1 – 2),1 and
Defendants responded. (Doc. 224). The motion is now ripe for disposition. For
the reasons explained below, the Court finds that Natures Way’s motion for
prejudgment interest, attorneys’ fees, and litigation expenses should be
GRANTED IN PART and DENIED IN PART.
Natures Way filed two replies. (Docs. 214, 216, 219, 221, 223). The
Court allowed Natures Way to file a second reply after it filed its first reply in
error. The Court then gave Defendants an opportunity to respond to the
corrected, second reply. (Doc. 222).
Natures Way initiated this breach of contract action. Natures Way
brought the case in diversity jurisdiction, though the parties agreed general
maritime law governs the contract. (Doc. 1, p. 2; Exh. 1, p. 2). The complaint
sought three forms of compensation based on Defendants’ breach: 1) invoiced
debt, 2) lost profits, and 3) attorneys’ fees and expenses. (Doc. 1, pp. 3 – 5).
Defendants answered and asserted breach of contract counterclaims against
Natures Way. (Docs. 23, 53). The contract underlying the case includes a
default provision, which reads:
Default: In the event that either party hereto violates or
breaches the terms of this Charter and the other party hereto
engages legal counsel for purposes of enforcing its rights and
remedies hereunder or otherwise protecting its interests in
connection with this Charter, said nondefaulting party, in
addition to all other relief to which it may be entitled, shall also
be entitled, in the event of [sic] it prevails against the breaching
party, to recover all of the costs and expenses it incurs in
enforcing this Charter and protecting its interests, including its
reasonable attorneys’ fees and expenses. (Doc. 1, Exh. 1, p. 1).
The parties tried this case before a jury in November 2014. (Doc. 209).
The trial lasted six days. (Doc. 209). During the trial, Natures Way presented
its breach of contract claim,2 and Defendants presented their breach of
contract counterclaims. The jury found in favor of Natures Way on its claim
for invoiced debt, and awarded it $205,512.00. (Doc. 209, Exh. 1, p. 3). The
jury did not find that Defendants proved their affirmative defenses to
overcome Natures Way’s breach of contract claim. (Doc. 209, Exh. 1, p. 2).
The Court granted Defendants’ motion in limine to exclude evidence of
the alleged lost profits and outside towing damages. (Doc. 210, p. 3). Thus the
jury did not award Natures Way any damages for its lost profits claim.
The jury also found Defendants proved two of their breach of contract
counterclaims, but decided Natures Way proved its affirmative defense of
waiver to overcome Defendants’ counterclaims.3 (Doc. 209, Exh. 1, pp. 3 – 4).
As a result, the jury did not award Defendants any compensatory damages.
(Doc. 209, Exh. 1, p. 4).
Natures Way now seeks post-trial recovery of attorney’s fees, expenses,
and prejudgment interest. In its initial post-trial motion, Natures Way
claimed it is entitled to recover $226,286.26, consisting of prejudgment
interest in the amount of $43,465.78, attorneys’ fees and expenses in the
amount of $148,727.33, and expert fees in the amount of $34,093.15. (Doc
212, pp. 2 – 4). In their first response, Defendants argue 1) Natures Way is
not entitled to recover fees and expenses because it is not a “nondefaulting
party” under the terms of the contract, (Doc. 213, p. 4), 2) Natures Way has
not established that the requested attorneys’ fees are reasonable, (Doc. 213,
pp. 9 – 18), 3) Natures Way is not entitled to recover its expert fees because
the Court excluded the expert witnesses, (Doc. 213, pp. 18 – 20), 4) Natures
Way should not be awarded prejudgment interest because of the peculiar
facts presented in this case, and Natures Way cites the incorrect prejudgment
interest statute, (Doc. 213, pp. 21 – 25), and 5) the Court should not award
A waiver occurs when there is an intentional relinquishment of a
known right. Edwards v. Allied Home Mortg. Capital Corp., 962 So. 2d 194,
208 (Ala. 2007).
Natures Way expenses or costs because it did not provide the required
documentation for such an award. (Doc. 213, p. 26).
In its reply, Natures Way reduced the amount of its request to
$214,704.61 to address some of the issues Defendants raised in their
response. (Doc. 223, Exh. 1, p. 3; Doc. 224, p. 2). Natures Way acknowledged
it used the incorrect interest rate for its prejudgment interest calculation
(Doc. 223, p. 15), and included a few incorrect time entries in its earlier
motion. (Doc. 223, Exh. 1, p. 3). Defendants maintain Natures Way is not
entitled to attorneys’ fees, and raise an additional argument in their second
response concerning attorneys’ fees for work performed by an attorney who is
not licensed to practice in Alabama or admitted in this district. (Doc. 224, p.
12). The arguments raised in the motion, responses, and replies are
A. Natures Way is the Prevailing Party
A “prevailing party” is a party in whose favor a judgment is entered.
Buckhannon Bd. & Care Home, Inc. v. W. Va Dep’t of Health & Human Res.,
532 U.S. 598, 603 (2001), superseded by statute 5 U.S.C. § 552(a)(4)(E)(ii),
Open Government Act of 2007, Pub.L. 110–175,121 Stat. 2524 (2007), as
recognized in Warren v. Colvin, 744 F.3d 841, 845 (2d Cir. 2014) (further
expanding definition of prevailing party as it pertains to Freedom of
Information Act actions). Even an award of nominal damages suffices under
this test. See Farrar v. Hobby, 506 U.S. 103 (1992);4 see also Hanrahan v.
Hampton, 446 U.S. 754, 757 (1980) (prevailing party must establish its
entitlement to some relief on the merits of its claims, either in the trial court
or on appeal). Here, Natures Way prevailed at trial when the jury awarded it
$205,512 for its breach of contract claim, and found Natures Way proved its
affirmative defense of waiver.
“The prevailing party in an admiralty case is not entitled to recover its
attorneys’ fees as a matter of course.” Natco Ltd. P’ship v. Moran Towing of
Fla., Inc., 267 F.3d 1190, 1193 (11th Cir. 2001) (citing Noritake Co., Inc. v.
M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir. 1980)). Generally, the
“American Rule” requires each party to pay its own attorney’s fees. Smith v.
GTE Corp., 236 F.3d 1292, 1305 (11th Cir. 2001) (citing Ex Parte Horn, 718
So. 2d 694, 702 (Ala. 1998)). There are exceptions to the general rule
precluding recovery of attorneys’ fees. Attorneys’ fees may be awarded to the
prevailing party in maritime cases if: “(1) they are provided by the statute
governing the claim, (2) the nonprevailing party acted in bad faith in the
course of the litigation, or (3) there is a contract providing for the
indemnification of attorneys’ fees.” Natco, 267 F.3d at 1193; see also Coastal
Fuels Mktg., Inc. v. Fla. Express Shipping Co., 207 F.3d 1247, 1250 (11th Cir.
However, in some circumstances such a “prevailing party” should still
not receive an award of attorney’s fees. See Farrar v. Hobby, at 115–16.
2000) (“A party is not entitled to attorney’s fees in an admiralty case unless
fees are statutorily or contractually authorized.”) (citation omitted).
In this case, a contract provision awards attorneys’ fees to the
nondefaulting party that prevails against the breaching party. (Doc. 1, Exh.
1, p. 1). Thus the issue is whether Natures Way is entitled to attorneys’ fees
as a “nondefaulting” party that “prevailed” at trial. Natures Way argues it
should receive attorneys’ fees because it is the prevailing party, exemplified
by the jury verdict awarding it damages for its claim. (Doc. 223, pp. 4 – 5).
Defendants rebut this position and argue Natures Way is not entitled to
recover attorneys’ fees because it is also a defaulting party. “As noted in the
verdict, the jury specifically found that Natures Way breached the Charter
Agreement by (1) ‘failing to timely deliver barges to East Liverpool for the
first shipment of recycled fuel oil,’ and (2) ‘failing to complete the round-trip
between East Liverpool and Avondale within 26 to 28 days, as necessary for
Natures Way to make the twelve (12) monthly round trips required by the
Charter Agreement, within the one year term of the agreement.’” (Doc. 213,
pp. 6 – 7). Defendants cite a Delaware case to support their argument that
Natures Way is a defaulting party that is not entitled to attorneys’ fees under
the default provision found in the contract. (Doc. 213, p. 7, citing Dittrick v.
Chalfant, CIV.A. 2156-S, 2007 WL 1378346, (Del. Ch. May 8, 2007)).
Defendants also point to Jet Sales of Stuart, LLC v. Jet Connection Travel,
GMBH, 240 Fed. App’x 839 (11th Cir. 2007) for this proposition. (Doc. 224,
pp. 6 – 9).
Whether a contract is ambiguous is a question of law for the trial
court. Mega Life & Health Ins. Co. v. Pieniozek, 516 F.3d 985, 991 (11th Cir.
2008) (citation omitted). A court interpreting a contract should give the words
of the contract their plain and ordinary meaning. Id. Additionally, “[t]he
traditional rule of construction in admiralty cases is to construe the contract
language most strongly against the drafter….” Edward Leasing Corp. v.
Uhlig & Assocs., Inc., 785 F.2d 877, 889 (11th Cir. 1986) (citations and
In this case, the default provision includes the word “nondefaulting,”
which could suggest Natures Way should not receive attorneys’ fees because
the jury found Natures Way breached the contract, and thus “defaulted.” But
the jury verdict must be read as a whole. The jury decided Natures Way
proved its affirmative defense of waiver. The affirmative defense of waiver
means Defendants excused Natures Way’s otherwise wrongful actions, and
wanted Natures Way to continue to perform its part of the bargain. As a
result, the Court does not find Defendants’ argument on this point
persuasive. Natures Way prevailed on its breach of contract claim and on its
Similarly, the default provision in the contract must be read as a
whole. The provision states the “nondefaulting party… shall also be entitled,
in the event of [sic] it prevails against the breaching party, to recover all costs
and expenses … including its reasonable attorneys’ fees and expenses.” (Doc.
1, Exh. 1, p. 1). Giving the words of the contract their plain and ordinary
meaning, the default provision provides that the party that prevails against
the breaching party is entitled to recover its reasonable attorneys’ fees and
expenses. (Doc. 1, Exh. 1, p. 1). The mere use of the word “nondefaulting”
does not change the entire meaning of this provision.
Additionally, Jet Sales and Dittrick are distinguishable from this case.
First, the contract language in each case varies – albeit slightly. See Jet
Sales, 240 Fed. App’x at 841; Dittrick, 2007 WL 1378346 at *1;. Second, as
the Dittrick court observes, it is possible for a party to a contract to
materially perform, and thus even if it technically “defaults” it could
theoretically meet its contractual obligations. 2007 WL 1378346 at *2 (“The
contractual discussion of a ‘defaulting party’ and ‘nondefaulting’ party
necessarily contemplates exactly what it says – that attorneys’ fees are only
available if one party has not fully (or, at least, not materially) met its
obligations, while the other has.”). Finally, in both cases, the courts did not
find one party prevailed over the other. Rather, the cases were essentially a
draw. Jet Sales, 240 Fed. App’x at 841 (“Per the Court’s findings, there was
no ‘Defaulting Party.’”); Dittrick, 2007 WL 1378346 at *2 (finding one party
“no more in default” than the other for non-performance).5 Here, the jury
awarded Natures Way compensation for its invoiced debt claim, and
concluded Defendants waived their breach of contract claims. As the
prevailing party, Natures Way is entitled to its reasonable attorneys’ fees
under the terms of the contract.
B. Reasonable Attorneys’ Fees
Generally, the determination of reasonable attorneys’ fees begins with
a determination of the reasonable hourly rate multiplied by the “hours
reasonably expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th
Cir. 2008). “The product of these two figures is the lodestar and there is a
strong presumption that the lodestar is the reasonable sum the attorneys
deserve.” Id. (internal citations and quotation omitted). When making this
“lodestar” determination, the Court may consider the twelve factors identified
in Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552–53 (Ala. 2004) (quoting
Furthermore, where an action involves a counterclaim, the party that
obtains the net judgment is generally considered the “prevailing party” for
purposes of awarding attorneys’ fees. See Coastal Fuels Mktg., Inc. 207 F.3d
at 1251 (discussing attorneys’ fees and whether the contractual provision
which provides for attorneys’ fees should be construed to allow the party that
was successful on all but one minor issue to recover fees). A court may refuse
to award attorneys’ fees where a contractual provision grants attorneys’ fees
to the prevailing party if both parties breached the terms of the agreement,
but it is not obligated to do so. See, e.g., Walton Gen. Contractors, Inc./Malco
Steel, Inc. v. Chicago Forming, Inc., 111 F.3d 1376, 1384 – 85 (8th Cir. 1997)
(affirming district court ruling that denied attorneys’ fees because jury found
both parties breached the subcontract, and awarded damages to each at
Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)). These
(1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill required to perform the legal services
properly; (4) the preclusion of other employment by the attorney
due to acceptance of the case; (5) the customary fee in the
community; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or circumstances; (8) the
amount involved 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. Id.
After the lodestar is determined by multiplication of a reasonable
hourly rate times hours reasonably expended, the court must next consider
the necessity of an adjustment for results obtained. If the party achieved an
excellent result, then the court should compensate for all hours reasonably
expended. Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987).
If the party achieved limited success, then the court may reduce the amount
of fees that is reasonable in relation to the results obtained. Hensley v.
Eckerhart, 461 U.S. 424, 436–37 (1983). In doing so, the court may attempt to
identify specific hours spent in unsuccessful claims, or it may simply reduce
the award by some proportion. Id.
Natures Way has the burden of supplying the court with sufficient
evidence from which the court can determine the reasonable hourly rate for
the attorneys and staff who worked on the litigation. Norman v. Hous. Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable
hourly rate is often “the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Garrett Investments, LLC v. SE Prop. Holdings,
LLC, 956 F. Supp. 2d 1330, 1339 (S.D. Ala. 2013). In that regard,
“[s]atisfactory evidence at a minimum is more than the affidavit of the
attorney performing the work.” Norman, 836 F.2d at 1299 (citation omitted).
When reviewing attorneys’ fees, the court may rely upon its own “knowledge
and experience” to form an “independent judgment” as to a reasonable hourly
rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing
Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp.
2d at 1340 – 41 (compiling market rates for attorneys with varied amounts of
Here, Natures Way relies upon the affidavits of two attorneys, Mr.
Frank Dantone and Mr. Edward Lamar, who performed work on its behalf to
support its claim for attorneys’ fees. (Doc. 212, Exh. 3; Doc. 223, Exhs. 1 – 2).
Mr. Dantone’s affidavit states that he is an admiralty lawyer with more than
35 years experience. (Doc. 212, Exh. 3, p. 2). The affidavit does not address
whether the rates charged, specifically $195 per hour, are in accord with the
prevailing market rates in the Southern District of Alabama. Rather he
states his rates are “reasonable and customary for the services” provided.
(Doc. 223, Exh. 1, p. 3). Relying on its own knowledge and experience, the
Court finds that in this district an hourly rate of $195 is reasonable for an
attorney with more than 35 years experience. Thus after reviewing the
motion and exhibits, the Court finds that an appropriate, reasonable rate for
Mr. Dantone is $195 per hour.
In its initial motion for attorneys’ fees, Natures Way included invoices
for three timekeepers (“LBH”, “NRJ”, and “EDL”) that were not named or
otherwise identified as assistants, paralegals, or attorneys. (Doc. 212, Exh. 2).
Natures Way subsequently identified “EDL” as Edward Lamar in its
response. (Doc. 223, p. 11; Exh. 2). Mr. Lamar submitted an affidavit
explaining that he is a licensed maritime attorney in Mississippi with more
than 33 years experience. (Doc. 223; Exh. 2). Mr. Lamar also charges $195
per hour. (Doc. 223, Exh. 2, pp. 2 – 3). Mr. Lamar further states he spent
123.2 hours working on this case, compared to the 502.8 hours billed by Mr.
Dantone.6 As Defendants note, however, Mr. Lamar is not admitted in
Alabama, nor did he file a motion to appear pro hac vice.7 (Doc. 224, p. 12);
LOCAL RULE 83.5; cf. Martin & Martin v. Jones, 541 So. 2d 1, 1 (Ala. 1989)
(“[A]n unlicensed attorney should be estopped from enforcing a contract to
provide legal services.”).8 Based on his extensive time entries and his in-
In contrast, Mr. Danton’s affidavit states he worked 506.90 hours on
this case, and Mr. Lamar worked 125.10 hours. (Doc. 223, Exh. 1, p. 3). The
Court is using the smaller figures.
Mr. Dantone filed a motion to appear pro hac vice, which the Court
granted. (Docs. 2, 7).
Although not binding in this circuit, the Court finds the reasoning of
other circuits helpful on this point. The Ninth Circuit has held that an out-ofstate attorney can recover fees for work so long as the attorney (1) was
eligible to be admitted pro hac vice as a matter of course, or (2) did not
“appear” before the court. Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d
815, 822–23 (9th Cir. 2009). In Winterrowd, the out-of-state attorney’s role
person appearance, the Court concludes Mr. Lamar actively participated in
this case and appeared before this Court without proper admittance. Thus
after reviewing Mr. Lamar’s time entries, the Court, in its discretion,
reduces his billable time by 50%. The Court finds that an appropriate,
reasonable rate for Mr. Lamar is $195 per hour, and he can recover only for
61.6 hours billed.
The Court is not obligated to research the names and qualifications of
the two remaining timekeepers for the benefit of the fee applicant. Mr.
Dantone’s revised affidavit alleviates some of the problem by stating he
“deleted 19.6 hours . . . from the statements of Henderson Dantone, P.A. for
the time of our firms [associates], and for time which was mistakenly charged
this litigation by our staff.” (Doc. 223, Exh. 1, p. 3). Regardless of the time
entries removed, the Court finds that an appropriate, reasonable rate for the
unidentified timekeepers (“LBH” and “NRJ”) is $0.00 per hour.
was limited to “advising [California lead counsel],” “reviewing pleadings,” and
“minimal, nonexclusive contact with the client.” Id. 556 F.3d at 823–24.
Similarly, courts in the Third Circuit examine whether an out-of-state
attorney plays a “consulting role” or “actively participates” in the case. See
Bilazzo v. Portfolio Recovery Assoc., 876 F. Supp. 2d 452 (D. N.J. 2012).
Other courts have also mulled over this question, deciding “[t]he court
believes that it possesses the authority to reduce the fees sought by attorneys
who are found to be practicing law in this district without being licensed.”
Mortenson v. Barnhart, No. CA 2:07-1621-JFA, 2009 WL 4267218, at *3
(D.S.C. Nov. 24, 2009) aff’d in part sub nom. Mortensen v. Astrue, 428 Fed.
App’x 248 (4th Cir. 2011) and aff’d in part, vacated in part sub nom. Priestley
v. Astrue, 651 F.3d 410 (4th Cir. 2011).
Natures Way also has the burden of establishing reasonable hours. Lee
v. Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013). Reasonable hours
are established through billing statements or invoices that state with
sufficient particularity the nature of the work performed and by whom so the
court may determine the reasonableness of the time expended. And if fee
applicants do not exercise billing judgment, courts are obligated to do it for
them, to cut the amount of hours for which payment is sought, pruning out
those that are excessive, redundant, or otherwise unnecessary. Norman, 836
F.2d at 1301. “Courts are not authorized to be generous with the money of
others.” ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
As aforementioned, the invoices submitted for the two unnamed
timekeepers are not sufficient. Thus any fees for the unidentified timekeepers
are not recoverable. Additionally, there are time entries included on the
invoices that do not appear related to this lawsuit because they name other
parties and legal issues that are not part of this case. (Doc. 212, Exh. 2, pp. 7,
14 – 15). Natures Way’s reply addresses some of these errors, but it did not
identify exactly which time entries it deleted. (Doc. 223, Exh. 1, p. 3). To be
sure, these unrelated fees are not recoverable. The remaining attorneys’ fees
are reviewed to ensure “excessive, redundant or otherwise unnecessary”
hours are excluded from the amount claimed. Norman, 836 F.2d at 1301.
It is difficult to determine the hours spent on excessive, redundant, or
unnecessary tasks because the invoices submitted include several charges
that are inappropriately block billed. (Doc. 212, Exh. 2). For instance, a
charge in March 2014 bills six hours for an “Office Conference with Chris
Hume and Fred Helmsing regarding deposition of experts” and “Return to
Greenville,” without stating which amount of time is attributable to the
conference or travel.9 (Doc. 212, Exh. 2, p. 19). Another charge on March 7,
2014 bills eight hours for “Office Conference with clients” and “Return to
Greenville” and “Telephone Conference with Fred Helmsing and Chris Hume
regarding deposition of Jorge Mesa.” (Doc. 212, Exh. 2, p. 19). Again, within
this eight-hour block of time there is no indication of the amount of time
spent on travel or the time spent on the office conference or telephone
conference. On August 12, 2014, there is an eight-hour charge for
“Preparation for final pretrial conference” and “Conference with attorneys”
and “Attend pretrial conference.” (Doc. 212, Exh. 2, p. 24). The pretrial
conference took place at 1:00pm that day, and it did not last long. How
counsel calculated this figure is unclear. There is also an eight hour charge
simply for “trial prep re: jury instructions” on November 20, 2014. (Doc. 212,
Exh. 2, p. 29). Because of the block billing issues throughout the invoices, the
Court finds a 10% reduction in the attorneys’ hours appropriate. See Krystal
Co., 918 F. Supp. 2d at 1271 (a court faced with unreasonable hours “has two
choices: it may conduct an hour-by-hour analysis or it may reduce the
requested hours with an across-the-board cut.”) (citations omitted).
Natures Way elected to hire counsel located in Greenville, Mississippi,
which is roughly 300 miles from Mobile, Alabama.
Natures Way provided the Court with two sets of numbers for time
billed by each of its attorneys. (Doc. 223, Exhs. 1, 2). The Court has elected to
use the somewhat smaller figures provided in Mr. Lamar’s affidavit. After a
thorough review of the time sheets submitted for Natures Way and
considering the twelve factors set forth in Pharmacia Corp., the Court
concludes Mr. Dantone reasonably worked 502.8 hours taking this case to
trial. As mentioned above, Mr. Lamar’s recoverable time is limited to 61.6
hours. Together, this amounts to 564.4 billable hours at the rate of $195 per
hour. This sum is reduced by 10% to address the block billing issues. The
lodestar amount for Natures Way is therefore $99,052.20 ($195 multiplied
by 507.96 hours).
When a party achieves limited success at trial, the Court may reduce
the amount of reasonable attorneys’ fees. Hensley, 461 U.S. at 436–37;
Norman, 836 F.2d at 1301 (stating the district court must deduct time spent
on discrete or unsuccessful claims) (emphasis added). In this case, Natures
Way sought $747,000.90 in damages prior to trial, $550,000 of which
represented its lost net profits. (Doc. 170, Exh. 11, p. 1). Ultimately, Natures
Way sought only $260,000 in lost profits and $205,512 in invoiced debt. (Doc.
213, pp. 15 – 16). The jury awarded Natures Way $205,512 for the invoiced
debt. (Doc. 212, p. 1). Natures Way thus received approximately 30% of the
damages it sought pre-trial. (Doc. 170, Exh. 11). Put differently, Natures Way
prevailed on one of its two claims for compensatory damages (claiming
damages for lost profits and invoiced debt).
The motion, reply, and corresponding invoices do not attempt to
identify the amount of time spent on seeking damages for lost profits or
invoiced debt. (Doc. 212, Exh. 2). The two claims for damages, however, are
interrelated both factually and legally as against the two Defendants.
Therefore, it is likely Mr. Dantone and Mr. Lamar worked on the claims and
legal issues involving both Defendants at the same time.
After scrutinizing the limited success Natures Way obtained at trial,
the Court finds it appropriate to further reduce Natures Way’s attorneys’
fees.10 Therefore, the Court further reduces the hours worked by 30%, from
507.96 hours to 355.57 hours. See St. Fleur v. City of Fort Lauderdale, 149
Fed. App’x 849, 853 (11th Cir. 2005) (“the district court abused no discretion
in reducing Plaintiff’s total hours claimed by 30 percent”). Natures Way’s
request for reasonable attorneys fees’ is thus GRANTED and limited to
$69,336.15 ($195 multiplied by 355.57 hours).
C. Expert Witness Fees
The Court also notes that the fees and expenses initially sought by
Natures Way are more than the total amount it received at trial, making the
fees and expenses appear grossly disproportionate. See, e.g., Cragen v.
Barnhill, 859 F. Supp. 566, 574 (N.D. Fla. 1994) (discussing the gross
disproportion between the amount of damages sought by plaintiff and that
which was actually awarded).
Natures Way seeks $34,093.15 in expert witness fees. Natures Way
hired Clay Rankin, an attorney, for expert witness services. (Doc. 212, p. 4).
The Court excluded Mr. Rankin as an expert. (Doc. 178, pp. 6 – 7). Therefore,
he did not participate in the trial.
An Alabama “trial court does not have the discretion to award fees for
expert witnesses unless a statute authorizes the recovery of such fees.” Se.
Envtl. Infrastructure, L.L.C. v. Rivers, 12 So. 3d 32, 52 (Ala. 2008) (internal
quotations omitted); see also Crawford Fitting Co. v. J. T. Gibbons, Inc., 482
U.S. 437, 445 (1987) (“We hold that absent explicit statutory or contractual
authorization for the taxation of the expenses of a litigant’s witness as costs,
federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and §
1920.”). Natures Way has not pointed to a statute supporting an award of
expert witness fees, nor has it shown how this expert witness fee is “a
component of otherwise compensable attorneys fees[.]”Se. Envtl.
Infrastructure, L.L.C., 12 So. 3d at 52. (internal quotations omitted).
Furthermore, Natures Way does not highlight language in the contract
that supports awarding fees for expert witnesses. Instead, Natures Way
argues the default provision is “so broad” it must be interpreted to include
expert witness fees. (Doc. 223, p. 12). The Court, however, must construe the
language of the contract against Natures Way as the party that drafted it.
Natco Ltd. P’ship, 267 F.3d at 1194. There is nothing in the contract that
suggests the parties here contemplated awarding expert witness fees to the
prevailing party when they negotiated the contract. Therefore, Natures Way’s
request for expert fees is DENIED.
D. Prejudgment Interest
Absent extraordinary circumstances, prejudgment interest is typically
awarded in maritime cases. Miss Janel, Inc. v. Elevating Boats, Inc., 725 F.
Supp. 1553, 1571 (S.D. Ala. 1989) (citation omitted). Natures Way initially
argued it is entitled to an award of prejudgment interest at the rate of 7.5%
per year. (Doc. 212, p. 3).11 In its reply, Natures Way corrected the interest
rate it cited and adjusted it downward to 6% per year. (Doc. 223, pp. 14 – 15).
Regardless of the incorrect citation, the Court determines Natures Way is
entitled to prejudgment interest. Defendants do not convince this Court that
peculiar or extraordinary facts exist in this case that preclude an award of
prejudgment interest. Indeed, the parties simply disagreed about the merit of
their breach of contract claims. City of Milwaukee v. Cement Div., Nat.
Gypsum Co., 515 U.S. 189, 198 (1995) (observing “the existence of a
legitimate difference of opinion on the issue of liability is merely a
characteristic of most ordinary lawsuits. It is not an extraordinary
circumstance that can justify denying prejudgment interest.”).
Natures Way reached this number by relying on the interest rate set
forth in Alabama Code Section 8-8-10. Defendants noted correctly that this is
the wrong interest rate. (Doc. 213, p. 25, n. 14). Section 8-8-10 controls postjudgment interest. Alabama Code Section 8-8-1 determines prejudgment
interest. See Burgess Min. & Const. Corp. v. Lees, 440 So. 2d 321, 338 (Ala.
Prejudgment interest awards, however, are not automatic. Id. at 196.
“The essential rationale for awarding prejudgment interest is to ensure that
an injured party is fully compensated for its loss.” Id. at 195. Additionally,
[a]dmiralty courts enjoy broad discretion in setting prejudgment interest
rates.” Gator Marine Serv. Towing, Inc. v. J. Ray McDermott & Co., 651 F.2d
1096, 1101 (5th Cir. 1981). “In determining the appropriate rate of interest . .
. , the court is mindful that pre-judgment interest is awarded solely as
compensation for the harm done.” Anderson v. McAllister Towing & Transp.
Co., 94 F. Supp. 2d 1273, 1276 (S.D. Ala. 2000); see also Sunderland Marine
Mut. Ins. Co. v. Weeks Marine Const. Co., 338 F.3d 1276, 1280 (11th Cir.
2003) (upholding pre-judgment interest based on prime interest rate in
maritime collision case).
Natures Way cancelled the contract at issue in February 2012 because
of Defendants’ breach. Since February 2012, interest rates have not reached
six percent. The Court therefore finds the average Treasury bill rates for the
period in question provide a more accurate amount of pre-judgment interest
owed. See Gator Marine Serv. Towing, Inc., 651 F.2d at 1101 (admiralty
courts may look to the judgment creditor’s actual cost of borrowing money, to
state law, or to other reasonable guideposts indicating a fair level of
compensation) (citations omitted). Noting that the average annual interest
rate on U.S. Treasury bonds from February 2012 until present has been
3.25%, the Court finds the appropriate prejudgment interest rate that will
compensate Natures Way is 3.25%. As a result, Natures Way’s request for
pre-judgment interest is GRANTED and it will accrue annually at 3.25%
from February 12, 2012 until the date judgment is entered.
Although the contract states that the prevailing party is entitled to
recover its attorneys’ fees, costs, and expenses, the Court must still determine
that those amounts are reasonable. Head v. Medford, 62 F.3d 351, 354 (11th
Cir. 1995) (stating that a “party need not prevail on all issues” in order to
qualify as a prevailing party and receive costs under FED. R. CIV. P. 54).
Natures Way seeks an unspecified amount of expenses and costs. The
expenses are lumped generally into the claim for $148,727.33, which is “the
total amount of attorneys’ fees and expenses as invoiced by Henderson
Dantone, P.A.” (Doc. 212, p. 4).
In this case, Natures Way failed to provide adequate documentation to
support their claimed expenses. See Cullens v. Ga. Dep’t of Transp., 29 F.3d
1489, 1494 (11th Cir. 1994) (disallowing copying costs because the plaintiff
failed to provide evidence of the documents’ use or intended use). Expenses
are only alluded to on the invoices submitted by Natures Way. They are not
summarized, however, nor are they clear. (Doc. 212, Exh. 2; Doc. 224, p. 25).
Rather, Natures Way relies on the invoices submitted that provide cursory
descriptions of the expenses, such as “travel” or “Westlaw research.” (Doc.
212, Exh. 2, p. 20); Krystal Co., 918 F. Supp. 2d at 1275 (charges for Westlaw
research are a “thinly-veiled attempt to make an expense of an item of law
firm overhead,” and such charges are unreasonable). The motion and the
affidavits submitted do not explain the expenses or argue that the charges
are necessary and reasonable. (Doc. 212, Exh. 3; Doc. 223, Exhs. 1, 2).
Additionally, “costs” and “expenses” are not synonymous, and the costs in this
case are not properly identified. See Eagle Ins. Co. v. Johnson, 982 F. Supp.
1456, 1458 (M.D. Ala. 1997) aff’d sub nom. Eagle Ins. v. Johnson, 162 F.3d 98
(11th Cir. 1998).
In sum, there is scant evidentiary support in the record for Natures
Way’s claim that counsel incurred the amount of expenses requested, and
without adequate documentation describing the legal work for which the
expenses were incurred; it is impossible to verify reasonableness or necessity.
In those cases where little or no evidentiary support is provided for the
expenses requested, as is the case here, courts may reduce or deny the
expenses. While this Court recognizes that the Eleventh Circuit traditionally
supports reimbursing expenses, Natures Way still bears the burden of
submitting a request that will enable a court to determine what expenses
were incurred and whether they are entitled to them. See, e.g., Barnes, 168
F.3d at 438 (holding that a district court abused its discretion when it failed
to exclude unnecessary expenses). The requested expenses are practically
devoid of any such explanation, and thus, Natures Way did not meet its
burden here. Accordingly, Natures Way’s expenses are DENIED.
The Eleventh Circuit has stated that a court granting an award of
attorneys’ fees should provide a summary table detailing its calculation of the
attorneys’ fees and expenses awarded. See, e.g., Coastal Fuels, 207 F.3d at
1252; Barnes, 168 F.3d at 439. Accordingly, applying the foregoing
reductions, this Court provides the following summary table for this case:
(Attorney Dantone $98,046)
(Attorney Lamar $24,024)
6% per year
• Fees for unidentified
• Fees for time worked
on other cases not
• Hours for attorney
Lamar reduced by 50%
because he actively
participated in this
case and appeared
before the court
• Hours reduced 10% for
block billing, Lodestar
= $195 x 507.96 hours
• Hours further reduced
30% for limited success
at trial, final sum =
$195 x 355.57 hours
3.25% per year
$69,336.15 plus prejudgment
interest at 3.25% per year
*Approximate lump sum; not itemized as expenses or costs
For the reasons stated above, Natures Way’s Motion is GRANTED IN
PART and DENIED IN PART. (Doc. 212). Natures Way is awarded
$69,336.15 in attorneys’ fees, and prejudgment interest at an annual interest
rate of 3.25%. Natures Way is not awarded expert witness fees or expenses.
DONE and ORDERED this 17th day of April, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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