Tractor and Equipment Co. v. Dual Trucking and Transport, LLC et al
ORDER granting 48 Motion to Reopen Case; granting Motion to Enforce Judgment; granting Motion for Attorney Fees. IT IS ORDERED that there be a judgment in favor of plaintiff against Defendant Anthony Alford in the amount of $292,846.30 in pri ncipal, plus interest at the rate of 18 percent per annum from October 31, 2013, attorneys' fees in the amount of $30,508.50 and costs in the amount of $1,111.55. IT IS FURTHER ORDERED that there be a judgment in favor of plaintiff against Alford in the additional amount of $49,535.10 for attorneys' fees incurred by plaintiff in enforcing Alford's guarantee and the Montana judgment in Louisiana. Signed by Judge Sarah S. Vance on 8/22/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRACTOR AND EQUIPMENT CO.
DUAL TRUCKING AND TRANSPORT,
LLC, AND ANTHONY ALFORD
ORDER AND REASONS
Before the Court is plaintiff’s motion to reopen this matter and for
further relief.1 For the following reasons, the Court grants the motion.
This case arises out of an open account agreement between Plaintiff
Tractor and Equipment Co. and Defendant Dual Trucking and Transport,
LLC (DTT). 2
In March 2012, DTT applied for credit from plaintiff. 3
Defendant Anthony Alford, a 50 percent owner of DTT, signed a personal
guarantee promising to repay Tractor and Equipment any monies due
R. Doc. 48.
R. Doc. 1 at 3 ¶ 7.
R. Doc. 46 at 1-2.
because of the credit extended to DTT, including late payment charges, costs
of collection, and a reasonable attorney’s fee for recovery of the debt. 4
Tractor and Equipment sued DTT and Anthony Alford in Montana
state court, alleging that DTT had an unpaid account balance of
$292,846.30. 5 The Montana court dismissed the claims against Alford for
lack of personal jurisdiction in May 2015.6 On March 8, 2016, the Montana
court entered judgment against DTT in the amount of $292,846.30, plus
interest at the rate of 18 percent per annum from October 31, 2013, attorneys’
fees in the amount of $30,508.50, and costs in the amount of $1,111.55. 7
On October 23, 2015, Tractor and Equipment filed suit in this Court
seeking a declaratory judgment against Alford and DTT. 8 On April 3, 2017,
the Court granted Tractor and Equipment’s motion for summary judgment
and declared that Alford’s personal guarantee is a valid and enforceable
surety agreement.9 On April 12, 2017, Alford and DTT filed a notice of appeal
of the Court’s declaratory judgment.10
Id. at 2, 5.
R. Doc. 1 at 3 ¶ 7.
R. Doc. 5-4 at 10.
R. Doc. 16-8.
R. Doc. 1.
R. Doc. 46; R. Doc. 47.
R. Doc. 49.
Tractor and Equipment now moves to reopen this matter and requests
that the Court grant it further relief in the form of monetary damages,
interest, attorneys’ fees, and costs.11
A. Availability of Further Relief
After entering a declaratory judgment, the Court may grant “[f]urther
necessary or proper relief . . . after reasonable notice and hearing, against
any adverse party whose rights have been determined by such judgment.” 28
U.S.C. § 2202. The decision to grant further relief, including monetary
damages, is within the Court’s discretion. See Noatex Corp. v. King Const. of
Houston, LLC, 732 F.3d 479, 487 (5th Cir. 2013) (“Monetary damages are
allowed under this provision and we review a district court’s decision to grant
or deny such monetary damages for abuse of discretion.”); see also United
Teacher Assocs. Ins. Co. v. Union Labor Life Ins. Co., 414 F.3d 558, 569-71
(5th Cir. 2005).
The Court’s declaratory judgment determined the legal rights of the
parties in this matter. The Montana court found that DTT owes plaintiff
R. Doc. 48.
damages, interest, attorneys’ fees, and costs. 12 After the Montana judgment
was entered, the Court declared that Alford’s personal guarantee
accompanying DTT’s credit application is a valid and enforceable surety
Alford is therefore liable for DTT’s debts to Tractor and
The Court retains jurisdiction to grant further relief even though an
appeal is pending in this matter. See United Teacher, 414 F.3d at 572-73. As
the Fifth Circuit has explained, courts “have consistently held that neither
the filing of an appeal nor a lengthy delay after the trial court’s initial ruling
terminates the court’s authority to grant further relief pursuant to § 2202.”
Id. at 572; see also Horn & Hardart Co. v. Nat’l Rail Passenger Corp., 843
F.2d 546, 548 n.3 (D.C. Cir. 1988) (finding that the Declaratory Judgment
Act’s provision for further relief is a statutory reservation to the general rule
that an appeal divests district court of jurisdiction).
Defendants concede that the Court retains the power to grant some
further relief during the pendency of an appeal.14 But defendants argue that
plaintiff’s request for interest and attorneys’ fees is outside the scope of the
Court’s declaratory judgment and would impermissibly expand the
R. Doc. 16-8.
R. Doc. 47.
R. Doc. 58 at 2.
judgment currently on appeal. 15 See Public Citizen v. Carlin, 2 F. Supp. 2d
18, 20 (D.D.C. 1998) (“The filing of a notice of appeal divests this Court of
jurisdiction to alter, amend, or expand a declaratory judgment. The Court
retains authority, however, to order ‘further necessary or proper relief’ to
enforce its declaratory judgment.”) (internal citation omitted).
The relief requested here does not require an expansion of the
declaratory judgment. The Court’s order16 granting declaratory judgment
included the text of the personal guarantee, which reads as follows:
The undersigned, ___________________, in consideration
of your giving credit to the aforesaid applicant, jointly and
severally guarantee(s) and agree(s) to pay to TRACTOR &
EQUIPMENT CO., N C MACHINERY CO., MACHINERY
POWER & EQUIPMENT CO., N C POWER SYSTEMS CO. OR
ANY OF THEIR RELATED OR AFFILIATED COMPANIES all
monies which shall become due you from Dual Trucking and
Transport LLC by reason of any credit you extended as credit
you extend as [sic] herein requested, including late payment
charges and all costs of collection and reasonable attorney’s fee
for recovery of the debt if it is due whether it is incurred by the
debtor or guarantor or both.
Id. at 2-3. Defendants also contend that the Court has already
rejected plaintiff’s request to amend its complaint to seek monetary relief.
Id. at 1-2. The Magistrate Judge denied plaintiff’s motion for leave to
amend for lack of jurisdiction and as moot in light of this motion for further
relief. R. Doc. 56. This was not a rejection of plaintiff’s request on the
R. Doc. 46 at 5.
This guarantee unambiguously obliges Alford to pay Tractor and
Equipment the money owed by DTT as a result of the credit extended,
including any “late payment charges and all costs of collection and
reasonable attorney’s fee[s] for recovery of the debt.”17 Attorneys’ fees based
on a contractual agreement to pay fees are a proper subject for collateral
relief under § 2202. See Bilmar Drilling, Inc. v. IFG Leasing Co., 795 F.2d
1194, 1200, 1202 (5th Cir. 1986); see also Mercantile Nat’l Bank v. Bradford
Trust Co., 850 F.2d 215, 216, 218 (5th Cir. 1988) (finding that attorneys’ fees
are recoverable under § 2202 where permitted by contract).
The Montana court has already determined that DTT owes Tractor and
Equipment damages, interest, costs, and attorneys’ fees. 18
declaratory judgment in this matter “conclusively established the validity” of
Alford’s personal guarantee of DTT’s debts, including interest and fees, and
“the denial of the motion for further relief would effectively render this
declaratory judgment meaningless.” United Teacher, 414 F.3d at 574.
Defendants’ attempts to distinguish United Teacher are unavailing.
Defendants argue that further relief in United Teacher was appropriate only
because the declaratory judgment at issue in that case required specific
R. Doc. 16-8.
performance of contractual obligations. 19 Id. at 569. Defendants further
contend that, because plaintiff’s suit for declaratory relief did not specifically
seek interest, attorneys’ fees, or a declaration as to how much debt Alford
guaranteed, the Court cannot award such relief now. 20 But the request for
monetary damages in United Teacher was similarly raised for the first time
in a motion for further relief, and came in addition to a request for specific
performance. Id. at 569, 572. As is the case here, monetary damages “flowed
from, and [were] consistent with, the declaratory judgment,” but were not
part of the earlier judgment. Id. at 573.
The purpose of 28 U.S.C. § 2202 is to enable courts to grant further
relief, not merely relief already required by the terms of the declaratory
judgment. See, e.g., Edward B. Marks Music Corp. v. Charles K. Harris
Music Publ’g Co., 255 F.2d 518, 522 (2d Cir. 1958) (holding that further relief
“need not have been demanded, or even proved, in the original action for
declaratory relief”). Defendants cannot “nullify [their] adversary’s right to
§ 2202 relief merely by lodging an appeal.” Horn & Hardart Co., 853 F.2d at
R. Doc. 58 at 3.
The Court therefore finds that plaintiff is entitled to recover from
Alford the full amount of damages, interest, costs, and attorneys’ fees that
the Montana court determined DTT owes plaintiff.
B. Attorneys’ Fees
Under the terms of Alford’s personal guarantee, plaintiff is also entitled
to recover from Alford additional reasonable attorneys’ fees and costs
incurred in enforcing the surety agreement and the Montana judgment.21
See Mercantile Nat’l Bank, 850 F.2d at 216, 218.
$49,535.10 in attorneys’ fees, expenses, and costs related to the prosecution
of its claim. 22 Defendants object to an award of attorneys’ fees and ask for
an additional hearing and discovery on the amount of fees. 23
The Court finds that no further hearing with regard to attorneys’ fees
is necessary. As part of its motion for further relief, plaintiff’s counsel
submitted a detailed description of the work performed and hours incurred
in the representation of this matter. 24
Defendants had notice and an
opportunity to contest the reasonableness of the fees claimed, and failed to
R. Doc. 46 at 5; R. Doc. 1-5.
R. Doc. 48-1 at 8, R. Doc. 48-2 at 2.
R. Doc. 58 at 3-4.
R. Doc. 48-2.
do so. Defendants are not entitled to another opportunity to challenge
plaintiff’s fee request. 25
Because the Court is sitting in diversity and plaintiff’s right to
attorneys’ fees arises out of a surety agreement declared valid under
Louisiana law, “[s]tate law controls both the award of and the reasonableness
of” attorneys’ fees. See Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.
2002). Under Louisiana law, courts may inquire into the reasonableness of
attorneys’ fees and should consider: “(1) the ultimate result obtained; (2) the
responsibility incurred; (3) the importance of the litigation, (4) amount of
money involved; (5) extent and character of the work performed; (6) legal
knowledge, attainment, and skill of the attorneys; (7) number of appearances
made; (8) intricacies of the facts involved; (9) diligence and skill of counsel;
and (10) the court’s own knowledge.” State v. Williamson, 597 So. 2d 439,
441-42 (La. 1992).
These factors are derived from Rule 1.5(a) of the Louisiana Rules of
Professional Conduct. Id. at 442 n.9. Among the factors listed in Rule 1.5(a)
Defendants appear to suggest that an additional hearing is required
because the statute provides that further relief may be granted “after
reasonable notice and hearing.” 28 U.S.C. § 2202. This motion was
properly submitted on the briefs, without an oral hearing, under Fed. R.
Civ. P. 78 and Local Rule 7.2. Defendants did not request oral argument
under Local Rule 78.1. The Court is therefore not required to provide
defendants with an additional hearing.
is “[t]he fee customarily charged in the locality for similar legal services.” Id.
The Court need not expressly consider all the factors, however, and may
multiply the number of hours worked by an hourly rate the Court deems
reasonable. See Fourchon Docks, Inc. v. Milchem Inc., 849 F.2d 1561, 1568
(5th Cir. 1988).
Plaintiff submits the affidavit of its lead counsel, Christopher Riviere,
as well as an itemized billing statement, as evidence of the attorneys’ fees and
costs it has incurred. 26 Plaintiff requests an hourly rate of $225 per hour for
attorneys and $95 per hour for paralegals. 27 Riviere attests that he has over
35 years of relevant legal experience, and his associates William Abel and
Todd Magee have 5 years and 3.5 years of experience, respectively.28 The
Court finds that the requested hourly rates are reasonable, and well within
the range that this Court has approved in similar cases. See, e.g., DirectTV,
LLC v. Ertem, No. 13-487, 2015 WL 459398, at *3 (E.D. La. Feb. 3, 2015)
(approving hourly rates of $350/hour for partners, $250/hour for associates,
and $95/hour for legal assistants); Offshore Marine Contractors, Inc. v.
Palm Energy Offshore, LLC, No. 10-4151, 2014 WL 5039670, at *8-9 (E.D.
R. Doc. 48-2.
Id. at 2.
Id. at 2-3.
La. Sep. 25, 2014) (finding reasonable hourly rates ranging from $225/hour
to $325/hour for attorneys and $100/hour for paralegals).
The Court has reviewed line by line the billing statement submitted on
behalf of plaintiff’s counsel and finds the hours expended to be reasonable. 29
The billing statement and the record reflect that plaintiff’s counsel prepared
documentation in both federal and state courts, successfully defended
against a motion to dismiss, and prevailed in this Court on cross motions for
summary judgment. 30 The Court therefore finds that plaintiff is entitled to
attorneys’ fees and costs in the amount of $49,535.10 as a result of its legal
efforts in Louisiana to collect on the debt owed by defendants.
For the foregoing reasons, plaintiff’s motion to reopen this case and for
further relief is GRANTED.
Several entries in the itemized bill are blacked out and it is not
possible to ascertain what work was performed. The Court has subtracted
the amounts associated with the blacked-out entries from the total fees.
After removing these entries, the Court finds that the itemized bill still
includes at least $49,535.10 in valid fees and costs. See R. Doc. 48-2.
See R. Doc. 14; R. Doc. 46; R. Doc. 48-2.
IT IS ORDERED that there be a judgment in favor of plaintiff against
Defendant Anthony Alford in the amount of $292,846.30 in principal, plus
interest at the rate of 18 percent per annum from October 31, 2013, attorneys’
fees in the amount of $30,508.50 and costs in the amount of $1,111.55. IT IS
FURTHER ORDERED that there be a judgment in favor of plaintiff against
Alford in the additional amount of $49,535.10 for attorneys’ fees incurred by
plaintiff in enforcing Alford’s guarantee and the Montana judgment in
New Orleans, Louisiana, this _____ day of August, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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