Atel Maritime Investors, LP et al v. Sea Mar Management, LLC et al

Filing 641

ORDER denying 634 Motion for Attorney Fees. Signed by Judge Nannette Jolivette Brown on 2/2/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ATEL MARITIME INVESTORS, LP, et al.

CIVIL ACTION

VERSUS

CASE NO. 08-1700

SEA MAR MANAGEMENT, L.L.C., NABORS
WELL SERVICES CO. AND NABORS
INDUSTRIES LTD

SECTION: “G”(4)

ORDER
Before the Court is Defendant Sea Mar Management LLC’s (“SMM”) “Motion for an Award
of Attorney’s Fees for Attorney’s Fees Incurred in the United States Fifth Circuit Court of
Appeals,”1 wherein SMM seeks $72,922.00 in appellate attorneys’ fees. After considering the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
will deny the motion.
I. Background
This matter came before the Court for trial on the merits without a jury on July 30, 2012
through August 3, 2012. On June 24, 2013, the Court entered its Judgment and Reasons, wherein
it found that ATEL had failed to carry its burden of proof on each of its causes of action against each
defendant.2 Also on June 24, 2013, the Court entered a Judgement dismissing all of ATEL’s claims
with prejudice.3 The Judgment did not award attorneys’ fees to SMM.4
On July 24, 2013, SMM filed a “Motion for Award of Attorney’s Fees,” wherein it sought

1

Rec. Doc. 634.

2

Rec. Doc. 604.

3

Rec. Doc. 605.

4

Id.

1

$702,316.96 in attorneys’ fees, expenses, and court costs incurred during litigation before the district
court.5 SMM additionally filed a “Motion for Leave to File Supplement to Defendants’ Motion for
Award of Attorney’s Fees,” wherein it alleged that the Court’s failure to award attorneys’ fees to
SMM in the June 24, 2013 Judgment was a clerical error or omission such that the Judgment was
subject to amendment pursuant to Fed. R. Civ. P. 60(a).6 On October 11, 2013, SMM filed a
“Motion to Deem Previously Filed motion for Award of Attorney’s Fees Timely Filed.”7 On January
22, 2014, the Court denied all of these motions because SMM’s “Motion for Award of Attorney’s
Fees”8 was not timely filed pursuant to Fed. R. Civ. P. 54(d).9
On July 23, 2013, ATEL filed a Notice of Appeal from this Court’s June 24, 2013
Judgment.10 On June 6, 2014, the Fifth Circuit issued an Order affirming this Court’s judgment on
the merits and stating that “IT IS FURTHER ORDERED that plaintiffs-appellants pay to
defendants-appellees the costs on appeal to be taxed by the Clerk of this Court.”11 The Fifth Circuit
did not remand any aspect of the case to this Court.
SMM filed the pending “Motion for an Award of Attorney’s Fees for Attorney’s Fees
Incurred in the United States Fifth Circuit Court of Appeals”12 on June 19, 2014. ATEL filed a

5

Rec. Doc. 608.

6

Rec. Doc. 615.

7

Rec. Doc. 620.

8

Rec. Doc. 608.

9

Rec. Doc. 632.

10

Rec. Doc. 606.

11

Rec. Doc. 638 at p. 1.

12

Rec. Doc. 634.

2

memorandum in opposition on July 1, 2014.13
II. Parties’ Arguments
A.

SMM’s Arguments in Support
SMM contends that it “prevailed in the appeal filed by ATEL for ATEL’s claims against

[SMM] arising from the MBCA. Therefore, Defendant, Sea Mar Management, LLC is entitled to
its reasonable attorney’s fees, expenses and court costs for defending the appeal.”14 Specifically,
SMM contends that it is entitled to $72,922.00 pursuant to Article 19 of the MBCA.15 To determine
reasonable attorney’s fees, according to SMM, the Court must first calculate the “lodestar,” and will
then consider the applicability and weight of the twelve factors enumerated under Johnson v.
Georgia Highway Express, Inc.16 As evidence of the lodestar, SMM submits a chart identifying
attorneys Thomas J. Smith, Amanda Kurz Smith, and Brandon Wentworth, as well as unnamed
paralegals and legal clerks, along with the hours billed by each and reasonable hourly rates, for the
work performed after the Notice of Appeal was filed in this case.17 This evidence, according to
SMM, represents approximately one year of work.18
SMM additionally submits the sworn affidavit of Thomas J. Smith, a director in the law firm

13

Rec. Doc. 637.

14

Rec. Doc. 634-3 at p. 3.

15

Rec. Doc. 634-3 at p. 3. Article 19 states:
If either party hereto engages an attorney to enforce its rights against the other party . . .
under this Charter and/or institutes litigation to enforce such rights, the prevailing party shall
be reimbursed by the other party for all attorneys’ fees and expenses, court costs, expert fees,
costs of Vessels arrest and seizure incurred thereby.

16

Id. (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).

17

Id. at p. 4.

18

Id. at p. 6.

3

of Galloway, Johnson, Tompkins, Burr & Smith, wherein he attests that the hourly rates used in the
lodestar calculation are comparable to and within the range of the prevailing market rates in the New
Orleans legal market for similar maritime litigation services.19 Smith additionally attests that he
reviewed the time entries of the attorneys, paralegals, and law clerks, and submits that the work
performed was reasonable and necessary to defend the appeal filed by ATEL.20
Finally, SMM proffers the sworn affidavit of Norman C. Sullivan, Jr., Senior Partner at the
law firm Fowler, Rodriguez, Valdes-Fauli, wherein he attests that his current hourly billable rate is
$350.00, and that this rate is well within the range of prevailing market rates in the New Orleans
legal market for similar maritime litigation services provided by attorneys of reasonably comparable
skills, experience, and reputation.21 Sullivan states that the hourly rates charged by SMM’s counsel
is comparable to the hourly rates charged by ATEL’s counsel.22
B.

ATEL’s Arguments in Opposition
In opposition, ATEL first contends that SMM’s motion is precluded by res judicata because

the Court has already determined that SMM is not entitled to attorney’s fees as a result of its failure
to timely file its Rule 54(d) motion for attorney’s fees.23 ATEL contends that the pending motion
meets all four requirements of res judicata because, according to ATEL, (1) the same parties are
involved; (2) there was a prior judgment entered on the merits of the claim; (3) there was a prior

19

Rec. Doc. 634-4.

20

Id.

21

Rec. Doc. 634-4. Sullivan’s affidavit was previously submitted to the Court in connection with SMM’s earlier
motion for attorney’s fees (Rec. Doc. 434-5).
22

Id. at p. 3.

23

Rec. Doc. 637 (citing Rec. Doc. 632).

4

final judgment entered on the merits of the claim; and (4) the same claim or cause of action was
involved in both actions.24 ATEL argues that SMM’s claims for appellate attorney’s fees could
have been addressed in its original motion for attorney’s fees. ATEL submits that:
Had the Court ruled that SMM was entitled to attorney’s fees, the Court could have
estimated an amount that would have reasonably compensated SMM for its appellate
attorney’s fees or SMM could have moved the court for an additur with respect to
additional attorney’s fees incurred in the Fifth Circuit following the conclusion of the
appeal.25
ATEL cites several cases in support of the argument that district courts may award conditional
attorneys’ fees in anticipation of appellate litigation.26 Further, ATEL states that it cannot locate any
authority wherein a party was awarded appellate attorney’s fees after being denied attorney’s fees
incurred in the district court litigation of the lawsuit.27
ATEL next contends that a party cannot recover damages without a judgment awarding them,
and that here, there is no judgment awarding SMM attorney’s fees from either this Court or the Fifth
Circuit.28 The Fifth Circuit judgment, according to ATEL, simply affirms the judgment of this Court
and orders ATEL to pay to SMM and NWS the costs on appeal to be taxed by the Clerk of the
Court.29 These costs, ATEL argues, include fees related to docketing, preparation, and filing of briefs
and records, but do not include attorney’s fees.30 Moreover, according to ATEL, the Fifth Circuit’s

24

Id. at p. 6 (citing United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007)).

25

Id. at p. 7.

26

Id. (citing, e.g., Sciambra v. Graham News, 892 F.2d 411 (5th Cir. 1990)).

27

Id.

28

Id. at p. 8.

29

Id.

30

Id. at pp. 8–9.

5

judgment was not a “judgment” within the meaning of Fed. R. Civ. P. 54(d) such that the fourteen
day period for filing a motion for attorney’s fees is reset, because Rule 54 contemplates only
judgments of the district court.31
In the alternative, ATEL argues that SMM has failed to produce sufficient evidence to
establish its entitlement to the requested attorney’s fees of $72,922.00.32 ATEL contends that the
lodestar analysis is inapplicable here because the MBCA expressly states that the prevailing party
is only entitled to its actual attorney’s fees incurred.33 According to ATEL, SMM has failed to
introduce any evidence of payment or any statements from its attorneys showing the amounts
allegedly incurred.34 Additionally, ATEL contends that some of the arguments raised on appeal by
ATEL were related solely to tort claims such as fraud and conversion that were brought against
NWS, but not against SMM.35 Accordingly, ATEL argues that any attorney’s fees that are related
to issues involving both ATEL’s claims against SMM for breach of contract and ATEL’s tort claims
against NWS should be reduced through apportionment.36 Finally, ATEL contends that the hourly
rates reflected in Sullivan’s affidavit are inflated.37 Accordingly, ATEL argues, even if a lodestar
calculation is appropriate, the rates sought by SMM are “grossly out of proportion” to the reasonable

31

Id. at p. 9 (citing Fed. R. Civ. P. 54(d), (a)).

32

Id.

33

Id.

34

Id.

35

Id.

36

Id. at p. 10.

37

Id. at p. 12.

6

rates that have already been approved by the Court in this litigation.38
III. Law and Analysis
Federal Rule of Civil Procedure 54(d)(2) lays out the procedural framework for an award
of attorneys’ fees.39 The advisory committee notes to the 1993 amendments explain that Rule 54(d)
requires “the filing of a motion sufficient to alert the adversary and the court that there is a claim for
fees, and the amount of such fees (or a fair estimate).”40 The commentary additionally provides that
“[a] new period for filing will automatically begin if a new judgment is entered following a reversal
or remand by the appellate court or the granting of a motion under Rule 59.”41 If a court of appeals
grants a motion for attorneys’ fees, it may either determine the fees itself or remand the matter to
the district court to calculate the appropriate fee amount.42 In cases where a party first requested and
received attorneys’ fees from the district court, the Fifth Circuit has remanded the issue of appellate

38

Id.

39

Fed. R. Civ. P. 54(d)(2)(B) (emphasis added). Pursuant to Rule 54(d)(2)(B), a motion for attorneys’ fees

must:
(i)
(ii)
(iii)
(iv)

be filed no later than 14 days after the entry of judgment;
specify the judgment and the statute, rule, or other grounds entitling the movant to the award;
state the amount sought or provide a fair estimate of it; and
disclose, if the court so orders, the terms of any agreement about fees for the services for which the
claim is made.

40

Fed. R. Civ. P. 54, advisory committee’s note on the 1993 amendments.

41

Id.

42

See Williams v. Trustmark Ins. Co., 173 Fed. App’x. 330, 335 (5th Cir. 2006) (unpublished) (remanding the
district court’s award of attorneys’ fees and instructing the court to include a prevailing plaintiff's appellate fees); Instone
Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003) (“Now that we have
ruled in favor of Instone, the matter is ripe for adjudication. We remand in order to allow the district court to make the
initial determination and award of appellate attorney's fees.”); Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253,
257 (5th Cir. 1990) (“[W]e award Norris attorneys’ fees for appeal and we remand to allow the district court to determine
the amount of attorneys’ fees to be granted to Norris for appellate work.”); Stelly v. C.I.R., 804 F.2d 868, 871 (5th
Cir.1986) (“In some cases where we have imposed sanctions, we have determined the amount of the sanction ourselves.
In other cases, ... we have remanded the case to the district court in order to determine the amount of attorney’s fees.”
(internal citations omitted)).

7

attorneys’ fees following the resolution of the appeal.43 However, the Fifth Circuit has found that
a district court abused its discretion in awarding appellate attorneys’ fees to a party that failed to
request such fees in its initial fee motions in the district court or on appeal.44
SMM’s motion for appellate attorneys’ fees must be denied for several reasons. First, for the
reasons set forth in its January 22, 2014 Order, this Court has already determined that SMM is not
entitled to attorneys’ fees pursuant to Rule 54(d).45 Additionally, SMM’s initial fee motion did not
request appellate attorneys’ fees, indicate that appellate attorneys’ fees would be sought in the
future, or provide a fair estimate of any future fees.46 Accordingly, even if the initial fee motion had
been granted, it was insufficient to “alert the adversary and the court that there is a claim for fees,
and the amount of such fees (or a fair estimate).”47
Furthermore, SMM identifies no judgment of the Fifth Circuit awarding the relief that it now
seeks. The Fifth Circuit did not award SMM attorneys’ fees or remand any issue to this Court for
further examination. In affirming this Court’s judgment on the merits, the Fifth Circuit held that “IT
IS FURTHER ORDERED that plaintiffs-appellants pay to defendants-appellees the costs on appeal

43

Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003);
see also Silver Dream, L.L.C. v. 3MC, Inc., 519 Fed. App’x. 844, 850 (5th Cir. 2013) (unpublished) (“The Chens were
granted attorney’s fees by the district court for proceedings below and request the opportunity to seek a similar award
for this proceeding. We agree that this is a matter for the district court and remand for this purpose”); Penton v. Am.
Bankers Ins. Co., 115 F. App’x 685, 687 (5th Cir. 2004) (unpublished) (“Now that this court has ruled in favor of the
Pentons in the underlying appeal, the matter of their appellate attorney's fees will be ripe for adjudication by the district
court.”).
44

Tex. Soil Recycling, Inc. v. Intercargo Ins. Co., 73 F. App’x 78 (5th Cir. 2003) (unpublished).

45

Rec. Doc. 632.

46

See Rec. Doc. 608.

47

Id.

8

to be taxed by the Clerk of this Court.”48 It has long been held that “costs on appeal” do not include
attorneys’ fees,49 and this Court is not free to alter the Fifth Circuit’s mandate.50 Additionally, since
no “reversal or remand by the appellate court” occurred in this case, this Court has not entered a new
judgment and started a new period for filing Rule 54(d) motions.51 SMM has not identified any basis
for this Court to award appellate attorneys’ fees, much less to alter the Fifth Circuit’s judgment to
consider such action.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that SMM’s “Motion for an Award of Attorney’s Fees for
Attorney’s Fees Incurred in the United States Fifth Circuit Court of Appeals” is DENIED.
NEW ORLEANS, LOUISIANA this 2nd

day of February, 2015.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

48

Id. at p. 1.

49

See Seyler v. Seyler, 678 F.2d 29, 31 (5th Cir. 1982).

50

United Indus., Inc. v. Simon Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996) (citations omitted).

51

Fed. R. Civ. P. 54, advisory committee’s note on the 1993 amendments.

9