Norris et al v. Causey et al

Filing 65

ORDER & REASONS: ORDERED that Plaintiffs' Motion for Attorneys' Fees (Rec. Doc. 58) is GRANTED. Plaintiffs are awarded $56,991.00 in attorneys' fees and $1,745.53 in costs, bearing interest at the rate provided for in Title 28, Section 1961(a). Defendants Karry Causey and Garry Causey are liable in solido for all costs, fees, and interest. FURTHER ORDERED that Plaintiffs' Motion for a Partial New Trial (Rec. Doc. 59) is GRANTED in part and DENIED in part. The judgment against Karry Causey is increased to $16,780.00, in solido with Garry Causey to the extent of the $16,780. The Court's Final Judgment (Rec. Doc. 56) will remain the same in all other respects. Signed by Judge Carl Barbier on 3/16/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSH NORRIS, ET AL.

CIVIL ACTION

VERSUS

NO: 14-1598

GARRY CAUSEY, ET AL.

SECTION: “J” (4)

ORDER AND REASONS
Before the Court are a Motion for Attorneys’ Fees (Rec. Doc.
58) and a Motion for a Partial New Trial (Rec. Doc. 59) filed by
Plaintiffs, John and Jill Norris, an Opposition thereto (Rec. Doc.
60) filed by Defendant, Karry Causey, and a Reply (Rec. Doc. 64)
filed by Plaintiffs. Having considered the motion, the parties’
submissions, the record, and the applicable law, the Court finds,
for the reasons expressed below, that the Motion for Attorneys’
Fees should be GRANTED and the Motion for a Partial New Trial
should be GRANTED in part and DENIED in part.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiffs Josh and Jill Norris are residents of the state of
Michigan. After Hurricane Katrina in 2005, Mr. Norris, a licensed
plumber, traveled to New Orleans to seek work. In April 2007,
Plaintiffs met Defendant, Karry Causey, and his brother, Garry
Causey. The Causeys proposed an investment to Plaintiffs, in which
1

Plaintiffs

would

supply

funds

to

purchase

hurricane-damaged

properties in New Orleans. The Causeys would then renovate the
properties and sell them for a profit. The parties agreed to share
the profits of their venture equally. In furtherance of this
agreement,

Garry

Causey

drafted

a

Joint

Venture

Agreement.

Plaintiffs signed the agreement and returned it to Garry Causey.
Defendant did not sign the agreement.
The Causeys recommended a property at 5103 Music Street (“the
Music Street property”) for their first renovation. Garry Causey
was the owner of this property. On June 14, 2007, Plaintiffs
delivered a check for $48,000 payable to Garry Causey for the
renovations of the Music Street property. Garry Causey deposited
the check on June 19. Karry Causey then instructed Plaintiffs to
pay for architectural plans for the property from a specific
company. Plaintiffs allege that they spent $1,000 on the plans.
Next, the Causeys approached Plaintiffs about another property
located at 4767 Marigny Street (“the Marigny Street property”).
Plaintiffs wrote Garry Causey a check for $45,000 for construction
on the Marigny Street property. Garry Causey deposited the check
on August 7, 2007. Plaintiffs made the initial $93,000 in payments
using their equity line of credit.
Despite Plaintiffs providing funds for the projects, the
Causeys failed to move forward on the renovations. According to
2

Plaintiffs, the Causeys told them that Garry Causey was unable to
acquire additional funding for construction and materials. In the
meantime, Plaintiffs had to pay monthly finance charges on their
line of credit. The Causeys agreed to make monthly payments to
Plaintiffs, but they stopped making payments after a few months.
In 2009, Garry Causey transferred his 50% interest in the
Marigny

Street

property

to

Mark

Anthony

Holdings.

Plaintiffs

contend that Garry Causey is “involved” with this entity. Further,
Mark Anthony Holdings owned the other 50% interest in the property,
which it sold to Turn Our Lights on X, an entity in which Karry
Causey was involved. In 2014, the two entities constructed a
residence on the property and sold it for a profit. The entities
did not share the profit with Plaintiffs.
On July 10, 2014, Plaintiffs filed suit against Karry and
Garry Causey for rescission of the joint venture agreement and
asking for a judgment holding Defendants liable for the principal
amount of $93,000, interest, attorney’s fees, costs, and any other
damages

allowed

by

law

or

equity.

Plaintiffs

alleged

unjust

enrichment, fraud, breach of contract, and other claims. After
Garry Causey failed to answer the complaint, Plaintiffs received
a default judgment against him on March 5, 2015.
The Court held a bench trial in this matter on February 1,
2016. After hearing the evidence, the Court found that Garry Causey
3

breached

the

contract

and

breached

his

fiduciary

duties

to

Plaintiffs. The Court held him liable for $94,000, plus interest.
Because Garry Causey failed to answer or appear, the Court entered
a judgment of default against him. Further, the Court found that
Karry Causey tacitly accepted the contract and committed a breach
of contract. The Court held him liable to $15,780 to Plaintiffs,
plus interest, in solido with Garry. The Court subsequently entered
a Final Judgment, which stated:
IT IS ORDERED, ADJUDGED, AND DECREED that there be
judgment in favor of Plaintiffs Josh and Jill Norris
against Defendant Garry Causey in the amount of $94,000
and against Defendant Karry Causey in the amount of
$15,780, jointly and severally to the extent of the
$15,780. . . .
IT IS FURTHER ORDERED that Plaintiffs are entitled to
reasonable
attorneys'
fees
and
court
costs.
In
accordance with Federal Rule of Civil Procedure
54(d)(2), Plaintiffs shall file a properly supported
motion for attorneys' fees and costs within 14 days of
the entry of this judgment.
(Rec. Doc. 56.) In compliance with the final judgment, Plaintiffs
filed their Motion for Attorneys’ Fees on February 12, 2016.
Plaintiffs filed an additional Motion for a New Trial on February
23.

Defendant

Karry

filed

an

opposition

on

March

1,

2016.

Plaintiffs filed a Motion for Leave to File Reply, which this Court
granted on March 8, 2016.

4

PARTIES’ ARGUMENTS
A. Motion for a Partial New Trial
Plaintiffs filed a Motion for a Partial New Trial pursuant to
Rule 59 of the Federal Rules of Civil Procedure. Plaintiffs argue
that the Court erred in holding that Karry and Garry Causey were
not solidarily liable for the entirety of the $94,000 judgment.
Plaintiffs raise several bases for holding Defendants solidarily
liable.

First,

Plaintiffs

argue

that

joint

venturers

are

fiduciaries, and that Garry and Karry breached their fiduciary
duties by converting Plaintiffs’ funds to their own uses. Further,
Plaintiffs argue that the Joint Venture Agreement created a joint
obligation for Defendants, meaning that Defendants owed just one
performance to Plaintiffs but that neither was bound to render the
entire performance. Plaintiffs also note that Defendants owned an
undivided fifty-percent interest in the joint venture, arguing
that this fact also renders them solidarily liable.
In addition, Plaintiffs argue that Karry and Garry’s duties
under

the

agreement

were

indivisible

because

the

parties

contemplated that their obligations would be indivisible. Thus,
Plaintiffs claim another basis for holding Defendants solidarily
liable. As an additional basis for imposing solidary liability,
Plaintiffs point to Louisiana Civil Code article 2324(A), which
states that those who conspire to commit an intentional act are
5

solidarily liable for damages caused by such act. Plaintiffs claim
that Karry and Garry conspired to defraud them, and are thus
solidarily liable.
Alternatively, Plaintiffs ask this Court to increase the
total damages owed by Karry Causey to $16,780. Plaintiffs argues
that they paid $1,000 directly to Karry for architectural plans.
The Court’s judgment awarded $94,000 total, representing the sum
the

Plaintiffs

sent

to

Garry

to

invest

in

the

properties.

Plaintiffs contend that they are entitled to recover the additional
$1,000 from Karry.
Defendant’s opposition did not address the arguments raised
in Plaintiffs’ Motion for New Trial. Accordingly, this Court
assumes that the motion is unopposed.
B. Motion for Attorneys’ Fees
Plaintiffs ask this Court to award reasonable attorneys’ fees
to Plaintiffs and against both Defendants as solidary obligors.
First, Plaintiffs contend that an award of $56,991 is reasonable
here,

based

on

the

ten

factors

recognized

by

Louisiana

law.

Plaintiffs’ attorney George Fagan set a rate of $250 per hour,
while their other attorney, Ross Molina, set a rate of $150 per
hour. Three paralegals also worked on the case. The rate for each
is $80 per hour. One additional attorney, Margaret Swetman, worked

6

on the case for a single day. Her rate is $200 per hour. Plaintiffs
contend that these rates are reasonable.
Further, Plaintiffs request an award of costs and expenses.
The Joint Venture Agreement provides that the prevailing party in
an arbitration, suit, or proceeding shall be entitled to “all costs
provided by law, all out of pocket costs of each and every type,
including expert witness fees and investigation costs and expense.
. . .” (Rec. Doc. 29-3, at 4-5). While the Court is typically
limited to taxing costs in the categories set by United States
Code, Title 28, Section 1920, Plaintiffs argue that the parties
may

contractually

agree

to

incur

costs

not

mentioned

in

the

statute. Thus, Plaintiffs assert that they are entitled to all
costs listed in Exhibit 3 to their motion.
Plaintiffs

also

argue

that

Defendants

should

be

held

solidarily liable for attorneys’ fees and costs. Plaintiffs note
that the Court rendered judgment against both Defendants for fees
and costs. Plaintiffs blame both Karry and Garry for the amount of
attorneys’ fees incurred because Garry was an absent defendant and
because Karry refused to engage in settlement discussions and
failed to make a settlement offer. Plaintiffs also contend that
Karry and Garry conspired to convince Plaintiffs to participate in
the joint venture, making them solidarily liable under Louisiana
Civil Code article 2324(A). In addition, Plaintiffs argue that
7

Defendants should be solidarily liable because Karry, the less
culpable party, will be entitled to seek contribution from Garry,
thus lessening any potential inequities.
Finally, Plaintiffs seek post-judgment interest on the award
of fees and costs. Because the Joint Venture Agreement did not
provide an interest rate for attorneys’ fees, Plaintiffs argue
that they are entitled to post-judgment interest pursuant to United
States Code Title 28, Section 1961.
Defendant Karry Causey filed an opposition, arguing that he
should not be liable for attorneys’ fees and costs incurred in
locating and serving Garry Causey. Karry Causey claims that he
cooperated in Plaintiffs’ attempts to find and serve Garry and
that he shouldn’t be responsible for the fees and expenses spent
in doing so. Further, Karry Causey argues that he should not be
held solidarily liable with Garry. He notes that the Court found
him to be liable for $15,780 out of the total damages, in solido
with Garry to the extent of the $15,780.Thus, Karry argues that he
should

only

be

held

liable

for

a

similar

percentage

of

the

attorneys’ fees and costs. By his calculations, this percentage is
fourteen percent.
In their reply, Plaintiffs first argue that their right to
attorneys’ fees and costs arises from contract, not from statute.
Because the parties agreed that the prevailing party would receive
8

attorneys’ fees, Plaintiffs contend that Defendant’s appeals to
equity

are

misplaced.

Further,

Plaintiffs

argue

that

the

Defendants should handle any division of the attorneys’ fees and
costs between themselves in an action for contribution, without
involving Plaintiffs. Finally, Plaintiffs assert that Louisiana
law does not support Karry Causey’s request to divide fees and
costs proportionally according to the Court’s judgment.
LEGAL STANDARD
A. Motion for New Trial
A

motion

judgment

and

for
that

new
is

trial
filed

that

substantively

within

twenty-eight

challenges
days 1

of

a

the

judgment of dismissal is treated as a motion to alter or amend the
judgment under FEDERAL RULE

OF

CIVIL PROCEDURE 59(e). Forsythe v. Saudi

Arabian Airlines Corp., 885 F.2d 285, 288 (5th Cir. 1989); see
also Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,
669-70 (5th Cir. 1986) (“[A]ny motion that draws into question the

1

In Forsythe, the court stated that the motion must be filed

within ten days.
been

changed

However, the time to file the motion has since

from

ten

days

to

twenty-eight

Amendments FED. R. CIV. PRO. 59(e) (West 2012).
9

days.

See

2009

correctness of a judgment is functionally a motion under Civil
Rule 59(e), whatever its label."(internal citation omitted)).
Altering

or

amending

a

judgment

under

Rule

59(e)

is

an

“extraordinary remedy” used “sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to
alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003). Manifest error is defined as
“‘[e]vident to the senses, especially to the sight, obvious to the
understanding, evident to the mind, not obscure or hidden, and is
synonymous with open, clear, visible, unmistakable, indubitable,
indisputable,

evidence,

and

self-evidence.’”

In

Re

Energy

Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15,
2009) (citations omitted); see also Pechon v. La. Dep't of Health
& Hosp., No. 08-0664, 2009 WL 2046766, at *4 (E.D. La. July 14,
2009) (manifest error is one that “‘is plain and indisputable, and
that amounts to a complete disregard of the controlling law’”)
(citations omitted).
The Fifth Circuit has noted that “such a motion is not the
proper

vehicle

for

rehashing

evidence,

legal

theories,

or

arguments that could have been offered or raised before entry of
10

judgment.”

Templet, 367 F.3d at 478-79. Nor should it be used to

“re-litigate prior matters that ... simply have been resolved to
the movant’s dissatisfaction.” Voisin v. Tetra Tech., Inc., 2010
WL 3943522, at *2 (E.D. La. Oct. 6, 2010). Thus, to prevail on a
motion under Rule 59(e), the movant must clearly establish at least
one of three factors: (1) an intervening change in the controlling
law, (2) the availability of new evidence not previously available,
or (3) a manifest error in law or fact. Schiller, 342 F.3d at 567;
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (to win a Rule
59(e) motion, the movant “must clearly establish either a manifest
error of law or fact or must present newly discovered evidence”).
B. Motion for Attorneys’ Fees
The United States Court of Appeals for the Fifth Circuit uses
a two-step analysis to calculate fee awards. Hernandez v. U.S.
Customs & Border Prot. Agency, No. 10-4602, 2012 WL 398328, at *13
(E.D. La. Feb. 7, 2012) (Barbier, J.) (citing Jimenez v. Wood
Cnty., Tex., 621 F.3d 372, 379 (5th Cir. 2010)). In the first step,
the Court must calculate the "lodestar," which is accomplished "by
multiplying the number of hours reasonably expended in the case by
the prevailing hourly rate for legal services in the district."
Id. (internal citations omitted).
In determining the number of hours billed for purposes of
calculating the lodestar, the Court must "determine whether the
11

requested hours expended by . . . counsel were reasonable in light
of the facts of the case and the work performed. The burden of
proving the reasonableness of the hours expended is on the fee
applicant." Hernandez, 2012 WL 398328, at *13 (internal citations
omitted). The Court must also determine whether the records show
that the movant's "counsel exercised billing judgment" and "should
exclude all time billed for work that is excessive, duplicative,
or

inadequately

documented."

Id.

at

*14

(internal

citations

omitted).
In determining the hourly rates for purposes of calculating
the lodestar, the Court must determine a reasonable rate for each
attorney "at the prevailing market rates in the relevant community
for similar services by attorneys of reasonably comparable skills,
experience, and reputation." Id. (internal citations omitted). The
burden is on the fee applicant to submit "satisfactory evidence
that the requested rate is aligned with prevailing market rates."
Id. (internal citations omitted).
Next, "the second step allows the Court to make downward
adjustments, or in rare cases, upward adjustments, to the lodestar
amount based upon consideration of the twelve Johnson factors."
Id. The twelve Johnson factors are the following:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
12

(3) the skill requisite to perform the legal service
properly;
(4) the preclusion of other employment by the attorney
due to acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the
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;
(12) awards in similar cases.
Johnson v. Ga. Highway Exp. Inc., 488 F.2d 714, 717-19 (5th Cir.
1974), abrogated on other grounds, Blanchard v. Bergeron, 489 U.S.
87 (1989).
Courts apply "a strong presumption that [the lodestar] figure
is reasonable." Hernandez, 2012 WL 398328, at *16. Nevertheless,
[T]he Court must still consider the twelve Johnson
factors ... . Though the Court need not be "meticulously
detailed"
in
its
analysis,
it
must
nonetheless
articulate and clearly apply the twelve factors to
determine how each affects the lodestar amount. The
Court should give special consideration to the time and
labor involved, the customary fee, the amount involved
and
the
results
obtained,
and
the
experience,
reputation, and ability of counsel. ... However, to the
extent that a factor has been previously considered in
the calculation of the benchmark lodestar amount, a
court should not make further adjustments on that basis.
Id. (internal citations omitted).
The Court also has discretion to award reasonable costs to a
prevailing party. See 28 U.S.C. § 1920. However, the Court "may
only

award

those

costs

articulated
13

in

[S]ection

1920

absent

explicit statutory or contractual authorization to the contrary."
Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir.
2010) (internal citations omitted). The court has the discretion
to determine what constitutes reasonable costs. See Guity v. Lawson
Envtl. Serv., LLC, 50 F. Supp. 3d 760, 772 (E.D. La. 2014)
(Barbier, J.). In addition, a district court has discretion to
deny all costs and expenses when the party seeking the costs has
not provided an itemized breakdown of the costs incurred and
reasons for their necessity. See Fogleman v. ARAMCO, 920 F.2d 278,
286 (5th Cir. 1991).
In diversity cases, post-judgment interest is calculated at
the federal rate, according to United States Code, Title 28,
Section 1961(a). Boston Old Colony Ins. Co. v. Tiner Associates
Inc., 288 F.3d 222, 234 (5th Cir. 2002). “Interest shall be allowed
on any money judgment in a civil case recovered in a district
court. … Such interest shall be calculated from the date of the
entry of the judgment, at a rate equal to the weekly average 1year constant maturity Treasury yield, as published by the Board
of Governors of the Federal Reserve System, for the calendar week
preceding the date of the judgment.” 28 U.S.C. § 1961(a).

14

DISCUSSION
A. Motion for New Trial
Plaintiffs

posit

several

theories

for

holding

Defendants

solidarily liable. To prevail on their motion, Plaintiffs must
show that the Court manifestly erred in failing to hold Defendants
solidarily liable. Obligations may be several, joint, or solidary.
“When each of different obligors owes a separate performance to
one obligee, the obligation is several for the obligors.” La. Civ.
Code art. 1787. “When different obligors owe together just one
performance to one obligee, but neither is bound for the whole,
the obligation is joint for the obligors.” La. Civ. Code art. 1788.
“An obligation is solidary for the obligors when each obligor is
liable for the whole performance. A performance rendered by one of
the solidary obligors relieves the others of liability toward the
obligee.” La. Civ. Code art. 1794.
Several obligations are treated as separate obligations owed
by each obligor. La. Civ. Code art. 1787. A joint obligation is
treated as solidary if its object is indivisible. La. Civ. Code
art. 1789. If its object is divisible, a joint obligation is
treated as separate. Id. Thus, the Court has two potential bases
for holding Defendants solidarily liable: (1) their obligations
were joint and indivisible, or (2) their obligations were solidary.
Each possibility will be discussed in turn.
15

1. Joint, indivisible obligation
“When different obligors owe together just one performance to
one obligee, but neither is bound for the whole, the obligation is
joint for the obligors.” La. Civ. Code art. 1788. Here, Defendants
did not owe just one performance to Plaintiffs. The Joint Venture
Agreement

describes

maintaining

Garry

accounting

facilitating

the

Causey’s

records;

purchase

obligations

identifying,

of

properties;

as

such:

negotiating,
negotiating

and
with

contractors and supply houses to obtain the best possible prices;
and

purchasing

builders’

risk

insurance.

Karry

Causey’s

only

duties under the agreement were serving as project manager on
restoration

projects

and

negotiating

with

contractors

and

subcontractors to ensure best pricing. The Defendants shared only
one

overlapping

Defendants

did

duty:
not

negotiating

owe

together

with

just

contractors.

one

performance.

Thus,
Their

obligations under the agreement were several, not joint.
Even

if

Defendants’

obligations

were

joint,

they

were

divisible. “An obligation is divisible when the object of the
performance

is

susceptible

of

division.

An

obligation

is

indivisible when the object of the performance, because of its
nature or because of the intent of the parties, is not susceptible
of

division.”

La.

Civ.

Code

art.

1815.

Here,

the

object

of

Defendants’ performances can easily be divided into parts. In fact,
16

the Joint Venture Agreement assigned Defendants separate, largely
unrelated duties. Defendants’ one shared duty, negotiating with
contractors, could easily be divided between them. Furthermore,
the evidence does not suggest that Defendants intended their
obligations indivisible, either in the Joint Venture Agreement or
elsewhere.

The

Court

finds

that

Defendants’

obligations

were

separate, not joint and indivisible. Therefore, Defendants are not
subject to solidary liability on this basis.
2. Solidary obligation
The second basis for holding Defendants solidarily liable is
a finding that their obligations were solidary. “Solidarity of
obligation shall not be presumed. A solidary obligation arises
from a clear expression of the parties' intent or from the law.”
La.

Civ.

Code

obligation

art.

through

1796.

the

“A

fault

failure
of

one

to

perform

obligor

a

renders

solidary
all

the

obligors solidarily liable for the resulting damages.” La. Civ.
Code art. 1800.
The

Joint

Defendants

shall

Venture
be

Agreement

solidarily

does

liable

not
for

provide
their

that

the

obligations.

Therefore, they can only be liable in solido if solidarity arises
from the law. Plaintiffs suggest that Defendants’ status as joint
venturers and fiduciaries renders them solidarily liable. However,
Plaintiffs have not cited any cases to support this proposition,
17

and the Court could not find any. In fact, the Court found cases
that suggest the opposite proposition is true. See Thibaut v.
Thibaut, 607 So. 2d 587, 602 (La. Ct. App. 1992) (Defendants who
breached

fiduciary

duties

“cannot

be

held

solidarily

liable

without a factual finding upon which solidarity liability can be
based.”). Therefore, a breach of fiduciary duty or a joint venture
relationship

does

not

automatically

give

rise

to

solidary

obligations.
Plaintiffs argue that solidary liability arose as a matter of
law according to Louisiana Civil Code article 2324(A). The article
provides: “He who conspires with another person to commit an
intentional or willful act is answerable, in solido, with that
person, for the damage caused by such act.” La. Civ. Code art.
2324(A). Plaintiffs did not introduce evidence of a conspiracy to
defraud perpetrated by Defendants, and the Court made no such
finding at the trial of this matter. Thus, the Court cannot hold
Defendants solidarily liable under article 2324(A).
However, one potential basis for solidary liability exists.
Louisiana

courts

hold

that

several

obligors

who

individually

breach their duties may become solidarily liable for the resulting
damages. See Theriot v. Bourg, 691 So. 2d 213, 225 (La. Ct. App.
1997); Sanders v. Zeagler, 670 So. 2d 748, 760 (La. Ct. App. 1996),
rev'd in part on other grounds, 686 So. 2d 819; Stonecipher v.
18

Mitchell, 655 So. 2d 1381, 1386 (La. Ct. App. 1995); Standard
Roofing Co. of New Orleans v. Elliot Const. Co., 535 So. 2d 870,
882-83 (La. Ct. App. 1988); Town of Winnsboro v. Barnard & Burk,
Inc., 294 So. 2d 867, 885 (La. Ct. App. 1974). A standard example
involves:
[A] contract, or contracts, made by an owner of an
immovable with different parties related to the
construction industry, such as architects, engineers,
contractors, and experts in the testing of materials,
for a certain building project. Upon breach, the owner
may bring suit against all his co-contractants and, if
they are found liable for damages, the question is
whether their liability is solidary.
To that question the French and Louisiana jurisprudence
have given an affirmative answer based on a finding that
each defendant contributed to causing the damage
sustained by the plaintiff. Implied in those decisions
is the reflection that, if sued for the specific
performance
of
their
original
obligations,
the
defendant-obligors would no doubt be found severally
bound, but that in a suit for damages the plaintiff is
actually seeking to enforce a new and different
obligation arising from breach of the contracts, a new
obligation that is solidary for the defendants in
breach.
5 La. Civ. L. Treatise, Law Of Obligations § 7.67 (2d ed.)
(internal citations omitted). An early decision applying this
principle relied in part on Louisiana Civil Code article 2762,
which has been interpreted to provide that architects and other
workmen will be solidarily bound for damages arising from breach
of a construction contract. See Town of Winnsboro, 294 So. 2d at
885. However, courts have applied the same principle in other
19

contexts, including breach of ficuciary duty cases. Theriot, 691
So. 2d at 225.
An important caveat to the principle is that the defendants’
combined fault must result in “a loss for which defendants would
be liable for the whole.” Stonecipher, 655 So. 2d at 1386. “It is
the coextensiveness of the obligations for the same debt, and not
the source of liability, which determines the solidarity of the
obligation.” Id. Therefore, the defendants’ individual breaches of
contract must combine and contribute “to cause the same item of
damages” sustained by the plaintiff. Id. For example, in Standard
Roofing, one defendant’s shoddy construction work resulted in a
leaking roof, while another’s resulted in a wrinkled roof. 535 So.
2d at 882-83. The plaintiff requested damages to cover the costs
of removing the roofing, repairing the deck, replacing the roof,
paying a roofing consultant, painting the deck, as well as time
related costs. Id. at 882. The court found that the cost of
painting the deck could be attributed solely to the leaking roof.
Id. Thus, the defendant that caused the roof to leak was solely
responsible for those damages. Id. at 883. Because the other
damages could be attributed to both the leaking roof and the
wrinkled roof, the court held both defendants solidarily liable
for the remaining damages. Id. at 882-83.

20

In the case at bar, Plaintiffs did not show that Defendants’
breaches caused one item of damages. Plaintiffs showed that they
paid $94,000 to Garry Causey and that Karry received $15,780 from
Garry following this payment. Because of the parties’ sketchy
record-keeping,

it

is

impossible

to

say

whether

Defendant’s

individual breaches caused the collective loss. Clearly, Garry’s
failure

to

perform

caused

the

loss

of

the

$94,000.

Karry’s

contribution to the loss is less certain. As far as the Court is
aware, Karry never received more than $15,980 from his brother in
connection with the joint venture. The evidence introduced does
not suggest that Karry was complicit in his brother’s failure to
return Plaintiffs’ money. This Court finds that Defendant Karry
Causey’s breach of contract caused a loss of $15,780, while Garry
Causey’s breach of contract and breach of fiduciary duty caused a
loss of $94,000. The Court finds that it does not manifestly err
in holding Karry and Garry Causey solidarily liable for only
$15,780 of the total damages and holding Garry individually liable
for the remaining damages.
3. Alternative Arguments
Alternatively, Plaintiffs argue that their damages should be
increased by $1,000, to account for the funds paid directly to
Karry Causey for architectural plans. The Court awarded $94,000
total to Plaintiffs, which included the $48,000 and $45,000 paid
21

to Garry Causey, as well as the $1,000 paid to Karry. However, the
Court only held Karry liable for the $15,780 that Garry transferred
to him. The Court finds that it manifestly erred in failing to
hold Karry Causey liable for the $1,000 paid directly to him.
Therefore, the Court will amend its Final Judgment to hold Karry
Causey liable for $16,780, in solido with Garry to the extent of
the $16,780.
B. Motion for Attorney’s Fees
The Court will address Plaintiffs’ arguments for attorneys’ fees,
costs, and interest in turn. Finally, the Court will discuss
whether Defendants should be held solidarily liable for fees and
costs.
1. Attorney’s Fees
As discussed above, the Court follows two steps in calculating
an award of attorneys’ fees. Each step will be discussed in turn.
a. Lodestar Method
In 2012 and in 2014, this Court found that in the Eastern
District of Louisiana, a reasonable hourly rate for an attorney
who

had

been

practicing

law

for

over

eight

(8)

years

and

specialized in the field of law at issue was $300.00 per hour.
Gros v. New Orleans City, No. 12-2322, 2014 WL 2506464, at *8 (E.D.
La. June 3, 2014); Hernandez, 2012 WL 398328, at *14-16. The
parties have not introduced evidence showing a change in market
22

conditions

so

as

to

justify

an

increase

or

decrease

in

the

prevailing market rate. See Kolb v. Colvin, No. 13-5085, 2016 WL
258621, at *3 (E.D. La. Jan. 21, 2016) (Brown, J.). Therefore, the
Court will use this same reasonable hourly rate in determining the
lodestar in this case.
“An

attorney's

requested

hourly

rate

is

prima

facie

reasonable when he requests that the lodestar be computed at his
customary billing rate, the rate is within the range of prevailing
market rates, and the rate is not contested.” In re Pool Products
Distribution Mkt. Antitrust Litig., No. MDL 2328, 2015 WL 1183495,
at *4 (E.D. La. Mar. 13, 2015) (Vance, J.). Attorney Ross Molina
charged a billing rate of $150 per hour. Mr. Molina has been
practicing law in Louisiana for approximately eight years, since
October 2008. In light of the reasonable hourly rate described
above, Mr. Molina’s rate is reasonable. Attorney George Fagan has
over thirty-one years of legal experience. In this case, his rate
was $250 per hour. Again, this fee falls well within the reasonable
range. One other attorney, Margaret Swetman, also contributed to
the case. Ms. Swetman has been practicing law since October 2004
and charged $200 per hour. This is a reasonable hourly rate.
Determining a paralegal’s expenses is a two-step process.
First, the Court must determine whether Plaintiffs can recover
paralegal

expenses

in

this

case.
23

Paralegal

expenses

are

not

considered “costs.” Allen v. U.S. Steel Corp., 665 F.2d 689, 697
(5th Cir. 1982). Such expenses may be recovered as part of an award
for attorneys’ fees, but only to the extent that the paralegal’s
duties consist of work traditionally done by an attorney. Id.
Otherwise,

paralegal

expenses

are

“separately

unrecoverable

overhead expenses.” Id. (citing Jones v. Armstrong Cork Co., 630
F.2d 324, 325 & n.1 (5th Cir. 1980)). Work traditionally performed
by an attorney includes “digesting depositions, collating, marking
and indexing exhibits, [and] preparing and arranging for service
of subpoenas.” Selzer v. Berkowitz, 477 F. Supp. 686, 691 (E.D.N.Y.
1979).
In
performed

this

servers,
locating

by

case,

the

attorneys.

corresponded
Garry

paralegals
Paralegals

with

Causey,

performed

work

communicated

investigatory
drafting

with

agencies

notices

typically

of

process

tasked

with

deposition,

corresponded with opposing counsel concerning depositions, engaged
in

other

correspondence

relating

to

service

and

discovery,

prepared discovery exhibits for production, set up depositions
with

court

reporters,

prepared

subpoenas,

called

the

tax

assessor’s office and sheriff’s office, conducted online factual
research,

prepared

exhibits

to

court

filings,

reviewed

land

records, prepared summaries of exhibits for trial, and prepared
bench books. (See generally Rec. Doc. 58-5.) This work went beyond
24

merely clerical work, such as “reviewing the Court's deadlines and
calendaring for the attorneys.” Action Oilfield Servs., Inc. v.
Mantle Oil & Gas, L.L.C., No. 13-4866, 2014 WL 2465310, at *5 (E.D.
La. June 2, 2014) (Barbier, J.). Therefore, the Court concludes
that Plaintiffs may recover paralegal expenses.
Second,

the

Court

must

determine

a

reasonable

rate

for

paralegals. In recent years, courts of this District have approved
of paralegal rates ranging from $90 to $125 per hour, depending on
experience. See United States v. Russel Grillot, Grillot Constr.,
LLC, No. 14-2539, 2015 WL 9672688, at *5 (E.D. La. Dec. 14, 2015)
(Shushan, Mag.); Offshore Marine Contractors, Inc. v. Palm Enrgy
Offshore, LLC, No. 10-4151, 2015 WL 5306229, at *3 (E.D. La. Sept.
10, 2015) (Vance, J.); St. Joseph Abbey v. Castille, No. 10-2717,
2015 WL 3444897, at *12 (E.D. La. May 27, 2015) (Duval, J.); Kodrin
v. State Farm Ins. Co., No. 06-8180, 2008 WL 294552, at *4 (E.D.
La. Jan. 31, 2008) (Barbier, J.), vacated on other grounds sub
nom. Kodrin v. State Farm Fire & Cas. Co., 314 F. App'x 671 (5th
Cir. 2009). Thus, the Court finds that the $80 per hour rate
charged by paralegals in this case is reasonable.
After determining the reasonable rates, the Court reviews the
records to determine whether Plaintiffs’ counsel exercised billing
judgment. Hernandez, 2012 WL 398328, at *14. Plaintiffs’ counsel
provided detailed billing statements, which this Court reviewed.
25

The attorneys’ and paralegals’ time was adequately documented and
does

not

seem

to

be

excessive

or

duplicative.

Furthermore,

Defendant does not oppose Plaintiffs’ calculations. The Court
finds that Plaintiffs’ counsel exercised billing judgment with
respect to the fees sought herein and that the hours expended on
this matter were reasonable.
As calculated by the Court, Plaintiffs are entitled to the
following attorneys’ fees:
Time Billed

Hourly Rate

Total Fees

Mr. Fagan

69.00 hours

$250 per hour

$17,250.00

Mr. Molina

247.10 hours

$150 per hour

$37,065.00

Ms. Swetman

2.30 hours

$200 per hour

$460.00

Paralegals

27.70 hours

$80 per hour

$2216.00

The total amount of attorneys’ fees is $56,991.00.
b. Johnson Factors
As discussed above, these lodestar figures are presumptively
reasonable, but the Court must nevertheless consider the twelve
Johnson factors to determine whether they warrant a downward
adjustment or, in rare cases, an upward adjustment.
1. Time and Labor Required
The Court finds that the lodestar amounts calculated above
fairly account for the time and labor expended by each attorney in
26

this case, and so no upward or downward adjustment of the lodestar
calculation is warranted based on this factor.
2. Novelty and Difficulty of the Questions
The

Court

finds

that

the

issues

in

this

case

were

not

sufficiently novel or difficult to warrant an upward adjustment of
the lodestar calculation.
3. Skill Requisite to Perform the Service Properly
The skill of each attorney is already accounted for in the
lodestar calculations.
4. Preclusion of Other Employment
There is no contention in this case that the attorneys were
precluded from taking other employment by virtue of the time and
resources required to be expended in this case, and the Court
therefore

finds

that

this

factor

does

not

warrant

an

upward

adjustment of the lodestar amount.
5. Customary Fee
The customary fees charged by each attorney are already
accounted for in the lodestar calculations.
6. Fixed or Contingent Fee
The Court finds that this factor does not warrant an upward
or downward adjustment of the lodestar amount.

27

7. Time Limitations Imposed by Client or Circumstances
The Court finds that there were no particular time limitations
or constraints imposed on Counsel in this matter that would warrant
an upward or downward adjustment.
8. Amount Involved and Results Obtained
Counsel for Plaintiffs partially achieved the results they
sought, and this factor is already accounted for in the lodestar
calculations.
9. Experience, Reputation, and Ability of Attorneys
The experience, reputation, and ability of each attorney is
already accounted for in the lodestar calculations.
10. Undesirability of the Case
There

is

no

contention

in

this

case

that

the

case

was

undesirable, and the Court therefore finds that this factor does
not warrant an upward adjustment of the lodestar amount.
11. Nature and Length of Professional Relationship
There is no evidence that any attorney discounted his or her
fees because Plaintiffs were longstanding clients, and so this
factor does not warrant an upward adjustment from the lodestar
amounts.

28

12. Awards in Similar Cases
This factor is neutral because the Court already considered
recent awards of attorneys' fees in this district and took those
awards into account when calculating the lodestar amounts.
Because it appears that none of the Johnson factors warrants
an upward or downward adjustment from the lodestar amounts, the
Court finds that the lodestar amount calculated – a total of
$56,991.00 – is the correct award in this case.
2. Costs
Plaintiffs also requested an award of $1,745.53 in costs. The
Joint

Venture

Agreement

provides,

“In

any

arbitration,

suit,

action, or proceeding between the parties . . . the prevailing
party . . . shall be awarded in addition to damages, or other
relief, all costs provided by law, all out of pocket costs of each
and every type, including expert witness fees and investigation
costs and expense, as well as all reasonable attorney’s fees.”
(Rec. Doc. 29-3, at 4-5.) The language of the agreement reflects
that Plaintiffs are entitled to indemnification for costs incurred
in litigating the claims involved in this matter. As such, despite
the limitations of Section 1920, the Court finds that Plaintiffs
are contractually entitled to “reasonable costs” and expenses
within the Court's discretion. Further, the Court finds that
Plaintiffs’ claimed costs are well-documented and reasonable. In
29

light of this fact and the fact that Defendant did not object to
Plaintiffs’ request for costs, the Court awards Plaintiffs the
full amount of costs requested, $1,745.53.
3. Interest
The Joint Venture Agreement provided that any loans made to
the joint venture would accrue interest at a rate of ten percent.
(Rec. Doc. 29-3, at 3.) However, the parties did not stipulate the
interest rate on an award for attorneys’ fees and costs. Thus,
interest will be calculated in accordance with United States Code,
Title 28, Section 1961(a).
4. Solidary Liability and Division of Fees
Finally, the Court will address the issues raised by the parties
concerning solidary liability and division of fees. Karry Causey
argues that he should not be liable for fees incurred in locating
and serving Garry Causey. The Court disagrees. The attorneys' fees
and costs sought by Plaintiffs are the sole and direct result of
Defendants’ failure to honor their contractual duties. The Joint
Venture Agreement specifically provides that a prevailing party
who sued based on the agreement is entitled to “all costs provided
by law, all out of pocket costs of each and every type, including
expert witness fees and investigation costs and expense, as well
as all reasonable attorney’s fees.” (Rec. Doc. 29-3, at 4-5.) Thus,
Karry Causey has a contractual duty to reimburse Plaintiffs for
30

all

attorneys'

fees

and

other

reasonable

costs

and

expenses

Plaintiffs have incurred as a result of being forced to litigate
their claims.
Plaintiffs argue that Defendants should be held solidarily liable
for fees and costs. The Court agrees. As addressed above, a
solidary obligation may arise from separate breaches of contract
that cause a single item of damages. See, e.g., Sanders, 670 So.
2d at 760. Here, Defendants separately breached the same contract.
To enforce their rights under the contract, Plaintiffs brought
suit against Defendants, incurring attorneys’ fees and costs in
the process. Defendant Karry Causey defended the suit and refused
to settle, forcing Plaintiffs to litigate the suit in court.
Defendant Garry Causey failed to appear, and Plaintiffs were
obligated to prove their case against him in order to receive a
Judgment

of

Default.

Thus,

the

Court

finds

that

Plaintiffs’

attorneys’ fees and costs are a single item of damages attributable
to the individual breaches of Defendants. Thus, Defendants are
solidarily liable for attorneys’ fees and costs.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Attorneys’
Fees (Rec. Doc. 58) is GRANTED. Plaintiffs are awarded $56,991.00
in attorneys’ fees and $1,745.53 in costs, bearing interest at the
31

rate provided for in Title 28, Section 1961(a). Defendants Karry
Causey and Garry Causey are liable in solido for all costs, fees,
and interest.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for a Partial
New Trial (Rec. Doc. 59) is GRANTED in part and DENIED in part.
The judgment against Karry Causey is increased to $16,780.00, in
solido with Garry Causey to the extent of the $16,780. The Court’s
Final Judgment (Rec. Doc. 56) will remain the same in all other
respects.
New Orleans, Louisiana this 16th day of March, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

32