Team Contractors, L.L.C. et al v. Waypoint NOLA, L.L.C. et al

Filing 632

ORDER ADOPTING REPORT AND RECOMMENDATIONS 623 - For the reasons herein, the Court APPROVES the magistrate judge's report and recommendation and ADOPTS it as its own. IT IS ORDERED that Plaintiff's motion for attorneys' fees and cos ts is DISMISSED WITHOUT PREJUDICE to refiling, subject to the Court's accompanying order preserving Plaintiff's claims and extending the time in which Plaintiff must file its renewed motion for attorneys' fees and costs to twenty-eight days after entry of the mandate by the United States Court of Appeals for the Fifth Circuit resolving the pending appeal. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEAM CONTRACTORS, L.L.C.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-1131

WAYPOINT NOLA, L.L.C., ET AL.,
Defendants

SECTION: “E”(2)

ORDER AND REASONS
Before the Court is a Report and Recommendation1 issued by Magistrate Judge
Joseph C. Wilkinson, Jr. recommending the Rule 54 Motion to Tax Attorneys’ Fees and
Costs2 filed by Plaintiff Team Contractors, L.L.C. (“Team”) be dismissed without
prejudice. Team objects to the Magistrate Judge’s Report and Recommendation.3
Defendant Waypoint filed a response to Team’s objections.4 For the following reasons,
the Court ADOPTS the Magistrate Judge’s Report and Recommendation and
DISMISSES WITHOUT PREJUDICE Plaintiff’s Rule 54 Motion to Tax Attorneys’
Fees and Costs.5
BACKGROUND
This case involves a complex construction contract dispute that has been pending
for three and one-half years.6 Plaintiff Team brought a breach of contract claim against
Waypoint NOLA, L.L.C. (“Waypoint”) and negligence claims against defendants KLG,
L.L.C. and HC Architecture, Inc.7 Plaintiff Team ultimately prevailed against Waypoint at

R. Doc. 623.
R. Doc. 594.
3 R. Doc. 626.
4 R. Doc. 629.
5 R. Doc. 594.
6 See R. Doc. 1.
7 R. Doc. 364.
1

2

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a second trial and now seeks an award of attorneys’ fees and costs while the appeal is
pending.8 Defendants argue the Court should wait to award attorneys’ fees until the
matter is fully resolved by the Fifth Circuit because this is a complex case that may be
overturned on appeal.9
The procedural history of this case is complicated. The district court record
contains more than 600 docket entries arising from multiple jury trials. The first jury trial
in this matter required more than two weeks of courtroom time from February 26, 2018
to March 9, 2018.10 The jury denied Team’s breach of contract claim against Waypoint11
but granted Team’s negligence claims against the other defendants.12 The jury awarded
Team $565,979.99 in damages and assigned 10% of the liability to Waypoint and its
representative, Steve Laski.13
After entry of judgment,14 Team filed a motion to amend, in which it argued the
jury’s finding that Waypoint did not breach its contract with Team was irreconcilably
inconsistent with assigning Waypoint and its agent responsibility for damages.15 The
Court granted Team’s motion and ordered a new trial on Team’s breach of contract claim
against Waypoint.16 The second jury returned a verdict in favor of Team.17 After receiving
post-trial memoranda concerning the disputed question of entitlement to attorneys’ fees,
the Court found Team is entitled to attorneys’ fees as the substantially prevailing party on
the breach of contract claim.18 Waypoint then filed a Motion for Judgment as a Matter of

See R. Doc. 594.
R. Doc. 626.
10 R. Docs. 347, 348, 350, 351, 353, 358, 360, 361, 362, 363.
11 Id. ¶ 6.
12 Id. ¶¶ 1–4.
13 Id. ¶ 8.
14 R. Doc. 370.
15 R. Doc. 372.
16 R. Doc. 420, at 8–10.
17 R. Doc. 559, at 1–5.
18 R. Docs. 589, 590.
8
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Law and Alternative Motion for New Trial,19 which was denied.20 Waypoint filed a notice
of appeal.21 The appeal is currently pending in the United States Court of Appeals for the
Fifth Circuit.22
On June 11, 2019, Team filed its Rule 54 Motion to Tax Attorneys’ Fees and Costs. 23
Team’s attorneys’ fees, costs, and expenses submissions, including exhibits, contain 353
pages.24 In its motion, Team seeks $715,538.11 in attorneys’ fees, costs, and expenses. 25
Waypoint filed a 31-page opposition memorandum in which it argues Team’s motion
should be “totally denied because Team fails to prove that the attorneys’ fees, expert fees,
and costs that Team requests from Waypoint are (1) reasonable and (2) directly related to
Team’s successful breach of contract claim against Waypoint.”26
In his Report and Recommendation, Magistrate Judge Wilkinson recommended
the resolution of the complex matter of an award of attorneys’ fees, costs, and expenses
in this case should be deferred until this case is concluded in its entirety. 27 Judge
Wilkinson opined that resolving this will require the expenditure of substantial judicial
resources that could be wasted depending on the Fifth Circuit’s resolution of the appeal.
Accordingly, Judge Wilkinson recommended the Court dismiss the motion to tax
attorneys’ fees without prejudice.
Team objects to Judge Wilkinson’s recommendation on the following grounds.
First, Team argues the cases Judge Wilkinson relied on in his Report and
Recommendation are distinguishable from the case at hand because the courts in those
R. Doc. 601
R. Doc. 618.
21 R. Doc. 620.
22 C.A. No. 19-30704.
23 R. Doc. 594.
24 R. Doc. 594.
25 Id. at 3.
26 R. Doc. 607, at 5.
27 R. Doc. 623.
19

20

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cases found deferring the attorneys’ fees’ issue would not significantly prejudice either
party.28 In contrast, Team argues it will be significantly prejudiced by deferment because
it will extend the litigation by several months.29 Second, Team contends deferring the
ruling on the fees and costs will not be judicially efficient because, if the Court rules on
the fees and costs before the Fifth Circuit’s ruling and the Fifth Circuit then rules in
Team’s favor, the Fifth Circuit can simultaneously consider the fees and costs.30 Third
Team argues that without a recommendation resolving the dispute before the appeal,
there is no chance of settling the case on the merits and alleviating the need for an
appeal.31 Fourth, Team argues deferring a ruling on the fees and costs will defy the final
judgment rule and create piecemeal litigation.32 Finally, Team argues the Court can
resolve the fees and costs under Federal Rule of Civil procedure 58(e).33 Defendant filed
a response in opposition to each of Team’s objections.34
LEGAL STANDARD
In reviewing the Magistrate Judge’s Report and Recommendations, the Court
must review de novo any of the Magistrate Judge’s conclusions to which a party has
specifically objected.35 The Court needs only to review the portions of the report to which
there are no objections to determine whether they are clearly erroneous or contrary to
law.36

R. Doc. 626, at 3.
Id.
30 Id. at 6.
31 Id. at 7.
32 Id.
33 Id. at 8.
34 R. Doc. 629.
35 See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which an objection is made.”).
36 Id.
28
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LAW AND ANALYSIS
Federal Rule of Civil Procedure 54(d)(2)(B) requires that a motion for attorneys’
fees must be filed no later than fourteen (14) days after the entry of judgment, “[u]nless .
. . a court order provides otherwise.” Deferring resolution of an attorneys’ fees and costs
motion by the prevailing party pending resolution of an appeal is not appropriate in every
case,37 but when faced with complex cases that may be overturned on appeal, Courts have
frequently deferred a motion for attorneys’ fees until the matter is fully resolved.38 For
example, in National Farmers’ Org., Inc. v. Associated Milk Producers, Inc., the Eighth
Circuit approved a district court’s decision to defer “undertaking the time-consuming task
of determining a reasonable attorney’s fee” in a complex case because that result could
yet be overturned on appeal.39 Specifically, the Eighth Circuit agreed with the district
court that “[a]ny award of attorney fees that would be based on judgments that are subject
to immediate appellate review would be nothing more than an exercise in futility.”40
In this case, the Court finds it is most efficient to defer the motion for attorneys’
fees and costs until the case is ruled upon by the Fifth Circuit. The proceedings underlying
this case are quite complex, consisting of over 600 record documents and encompassing
two trials. These complex proceedings will make determinations of attorneys’ fees and

See, e.g., Smith v. Board of Commissioners of the Louisiana Stadium and Exposition District, et al, C.A.
No. 17-7267, R. Docs. 97, 107, 112, 119, 137.
38 See, e.g., Celtic Marine Corp. v. James C. Justice Companies, Inc., 2014 WL 2215755, at *6 (E.D. La. May
28, 2014) (Barbier, J.), aff’d as modified, 593 Fed. App’x 300 (5th Cir. 2014); Malik & Sons, L.L.C. v. Circle
K Stores, 2017 WL 2455648, at *2–4 (E.D. La. May 22, 2017) (van Meerveld, J.) (citing Nat'l Farmers' Org.,
Inc. v. Associated Milk Producers, Inc., 850 F.2d 1286, 1312 (8th Cir. 1988) (“[R]ather than undertaking
the time-consuming task of determining a reasonable attorney’s fee, only to see the effort overturned on
appeal, the district court wisely deferred ruling on attorney’s fees and costs pending appeal.”); Dulin v. Bd.
of Comm'rs of Greenwood Leflore Hosp., 2013 WL 5464689, at *2 (N.D. Miss. Sept. 30, 2013); Kirmer v.
Goodyear Tire & Rubber Co., 2012 WL 2564955, at *1 (E.D. La. July 2, 2012) (Berrigan, J.)).
39 850 F.2d 1286, 1312 (8th Cir. 1988).
40 Id.
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costs costly in terms of judicial resources. While the Court may one day need to expend
those resources, it is not a sure bet that it will. Accordingly, in line with other courts, the
Court agrees with the Magistrate Judge that “rather than undertaking the timeconsuming task of determining a reasonable attorney’s fee, only to see the effort
overturned on appeal” it should “defer[] ruling on attorney's fees and costs pending
appeal.”41
Team’s objections to the Magistrate Judge’s report and recommendation are not
persuasive. Although the history of case is not identical to the procedural history of the
Milk case, or other cases cited in the Magistrate Judge’s Report and Recommendation, it
is certainly analogous. Both this case and the Milk case involved expansive trial court
records and the possibility that an appellate court decision could render the motion for
attorneys’ fees moot. Accordingly, the Magistrate judge was correct in relying on Milk to
recommend the Court defer ruling on attorneys’ fees and costs pending appeal.
Next, the possibility that the Fifth Circuit could simultaneously consider the
substantive appeal and an appeal of the attorneys’ fees and costs, if the Court rules on the
motion for attorneys’ fees now, does not overcome other interests in judicial economy,
such as the possibility that the Fifth Circuit could render a decision that would moot or
otherwise alter a determination of attorneys’ fees. Further, it is not clear how a
simultaneous consideration by the Fifth Circuit will conserve significant judicial
resources. The Fifth Circuit will need to engage in separate analyses of the merits and
attorneys’ fees issues in this case regardless of whether those appeals are filed
simultaneously or consecutively.

41

850 F.2d at 1312.

6

Team’s allegation that deferring a ruling on the attorneys’ fees and costs will
preclude any chance of settlement also is without merit. The parties have engaged in four
mediations and several settlement conferences. Any chance of settlement has been
adequately explored.
Team’s argument that waiting to rule on this motion will defy the final judgment
rule and create piecemeal litigation is incorrect. The final judgment rule provides that
federal courts of appeal have jurisdiction over appeals from “final decisions” of United
States district courts. 28 U.S.C. § 1291.42 In Budinich v. Becton Dickinson & Co., the
Supreme Court held a decision on the merits is a “final decision” under § 1291 even if the
award

or

amount

of

attorneys’

fees

for

the

litigation

remains

to

be

determined.43 Accordingly, it does not violate the final judgment rule to defer a decision
on attorneys’ fees. Likewise, it does not create impermissibly piecemeal litigation to do
so.
Lastly, Team incorrectly argues Waypoint’s appeal has no effect while the issue of
attorneys’ fees remains pending. Federal Rule of Appellate Procedure 4(a)(4)(B)(i)
provides, “If a party files a notice of appeal after the court announces or enters a
judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice
becomes effective to appeal a judgment or order, in whole or in part, when the order
disposing of the last such remaining motion is entered.” Federal Rule of Appellate
Procedure 4(a)(4)(A) lists the motions that may suspend the effect of a notice of appeal.
In subsection (iii) the Rule lists a motion “for attorney's fees under Rule 54 if the district
court extends the time to appeal under Rule 58.” Rule 4(a)(4)(A) does not otherwise list

Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Engineers & Participating
Employers, 571 U.S. 177, 179 (2014).
43 486 U.S. 196 (1988).
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any motions for attorneys’ fees. In this case, the Court did not take any action to extend
the appeal deadline under Rule 58 of the Federal Rules of Civil Procedure. As a result,
Waypoint’s notice of appeal was not suspended under Federal Rule of Appellate
Procedure 4(a)(4)(A) and (B).
CONCLUSION
For the foregoing reasons, the Court APPROVES the magistrate judge’s report
and recommendation and ADOPTS it as its own. IT IS ORDERED that Plaintiff's
motion for attorneys’ fees and costs is DISMISSED WITHOUT PREJUDICE to
refiling, subject to the Court’s accompanying order preserving Plaintiff’s claims and
extending the time in which Plaintiff must file its renewed motion for attorneys’ fees and
costs to twenty-eight days after entry of the mandate by the United States Court of
Appeals for the Fifth Circuit resolving the pending appeal.
New Orleans, Louisiana, this 10th day of January, 2019.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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