Team Contractors, L.L.C. et al v. Waypoint NOLA, L.L.C. et al
Filing
690
ORDER & REASONS 685 ADOPTING REPORT AND RECOMMENDATIONS: IT IS ORDERED that Defendant's 675 motion to fix attorneys' fees and costs in GRANTED IN PART and DENIED IN PART. Signed by Judge Susie Morgan on 3/30/2023.(pp)
Case 2:16-cv-01131-SM-DPC Document 690 Filed 03/30/23 Page 1 of 17
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEAM CONTRACTORS, LLC,
Plaintiff
CIVIL ACTION
VERSUS
NO. 16-1131
WAYPOINT NOLA, LLC, ET AL.,
Defendants
SECTION: “E”(2)
ORDER & REASONS
Before the Court is a Report and Recommendation1 issued by Magistrate Judge
Donna Phillips Currault, recommending Defendant Waypoint NOLA, LLC’s motion to fix
attorneys’ fees and costs2 be granted in part and denied in part. Plaintiff Team
Contractors,
LLC
timely
objected
to
the
Magistrate
Judge’s
Report
and
Recommendation.3 Waypoint filed a response to Team’s objection.4 For the reasons that
follow, the Court ADOPTS the Report and Recommendation5 in part. The Court hereby
GRANTS IN PART and DENIES IN PART Waypoint’s motion to fix attorneys’ fees
and costs.
BACKGROUND
This dispute arises from contracts made in connection with the construction and
renovation of Waypoint’s property at 1250 Poydras St. in New Orleans (“the Project”). On
September 19, 2014, Waypoint entered into a contract with Development Construction
Management LLC, represented by Steve Laski (“Laski”), under which Waypoint agreed to
provide project management services for the Project.6 On September 24, 2014, Team and
R. Doc. 685.
R. Doc. 675.
3 R. Doc. 686.
4 R. Doc. 689.
5 R. Doc. 12.
6 R. Doc. 477-1.
1
2
1
Case 2:16-cv-01131-SM-DPC Document 690 Filed 03/30/23 Page 2 of 17
Waypoint entered into a construction contract (“the Prime Contract”), under which Team
became the general contractor for the Project.7 Waypoint also entered into a contract with
HC Architecture, Inc. (“HCA”), under which HCA agreed to serve as the project’s
architect.8 HCA, in turn, subcontracted the mechanical, electrical, and plumbing design
work to KLG, L.L.C. (“KLG”).9
On February 5, 2016, Team filed a complaint against HCA, KLG, and Waypoint.10
Team alleged there were errors in the plans and specifications provided by Waypoint for
the mechanical, electrical, and plumbing systems relating to the construction project,
which were prepared by KLG.11 Team also alleged Waypoint directed it to modify the MEP
systems, but did not compensate Team for the additional costs Team incurred as a result
of the modifications.12 Team brought a breach of contract claim against Waypoint,
alleging Waypoint failed to compensate Team, in breach of the construction contract.13
Team also brought negligence claims against Waypoint, HCA, and KLG, alleging they
breached their duties of care and caused damage to Team.14
On July 10, 2017, after this case was filed but before trial, Waypoint paid Team
$1,023,514.09.15 Team’s breach of contract claim at the time of trial was divided into (1)
remaining sums Team alleged were outstanding and (2) contractual interest on the
$1,023,514,09 resulting from the alleged late payment.
R. Doc. 446-8 at p. 1, ¶ 1; R. Doc. 469 at p. 1, ¶ 1. The contract is on the record as R. Doc. 446-2.
R. Doc. 446-3.
9 R. Doc. 157-18. Defendant KLG informed the Court in its answer that it is now known as Salas O’Brien
South, L.L.C. R. Doc. 34. The parties continued to refer to it as KLG. The Court will continue to do so in this
order.
10 R. Doc. 1.
11 Id. at p. 3, ¶ 16.
12 Id. at p. 4–5.
13 Id. at p. 5.
14 Id. at p. 5–7.
15 R. Doc. 466-8 at p. 1, ¶ 3; R. Doc. 469 at p. 1, ¶ 3.
7
8
2
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This Court conducted a jury trial in this matter from February 26, 2018 to March
9, 2018. There were three remaining claims at trial: Team’s breach of contract claim
against Waypoint and Team’s negligence claims against HCA and KLG.16 Team did not
pursue a negligence claim against Waypoint at trial.17
At trial, Team used a demonstrative exhibit labeled “Design-Related Acceleration,”
breaking down its claim into the following categories: “Unpaid Subcontractor Labor,”
“Team Hourly Labor,” “Supervision,” “Recurring Expenses,” and “Extended General
Conditions.”18 Team listed a total damages amount of $1,342,087.05 for its design-related
acceleration claims.19 Team used a separate demonstrative exhibit labeled “Unpaid
Contract Amounts Unrelated to Design Errors,” breaking down its contract claim against
Waypoint and listing a total damages amount of $103,423.27 for its claim for “unpaid
contract amounts unrelated to design errors.”20
In the section of the jury verdict form dealing with liability, the jury found HCA
and KLG’s conduct violated their professional duties of care and caused damage to
Team.21 The jury also found Waypoint had not breached the contract.22
In the section of the jury verdict form dealing with damages, the jury was asked
separately about the amount of damages on the design-related acceleration claims, each
party’s percentage of responsibility, and the amount of damages on Team’s contract claim
against Waypoint. In the question dealing with the amount of damages on the design-
R. Doc. 364.
Id.
18 The demonstrative exhibit, labeled “Exhibit A,” may be found on the record at R. Doc. 506-1.
19 R. Doc. 506-1.
20 The demonstrative exhibit, labeled “Exhibit B,” may be found on the record at R. Doc. 506-2.
21 Id. at p. 1, ¶ 1–4.
22 Id. at p. 2, ¶ 6.
16
17
3
Case 2:16-cv-01131-SM-DPC Document 690 Filed 03/30/23 Page 4 of 17
related acceleration claims, the jury awarded Team $565,979.99 in damages, broken
down as follows:
Subcontractor Labor
$219,353.74
Team Hourly Labor
$90,015.89
Supervision
$136,560.90
Recurring Expenses
$120,049.46
Extended Home Office Overhead
TOTAL:
$0.00
$565,979.9923
In its responses to the next question, dealing with comparative fault, the jury assigned
Waypoint and its agent responsibility for damages.24 The jury assigned 30% of the
responsibility to HCA, 60% to KLG, 5% to Waypoint, and 5% to Waypoint’s project
manager Steve Laski, who was not a party to the suit.25 On the question with respect to
damages on the breach of contract claim separate from design-related acceleration, the
jury assigned $0 in damages as follows:
Unapproved Change Orders
$0
Contractual Interest
$0
TOTAL:
$026
On March 19, 2018, the Court entered judgment on the verdict against Defendants
HCA and KLG for $509,381.99, representing 90% of the total damages the jury awarded
on the design-related acceleration claims.27 The Court entered judgment in favor of
Defendant Waypoint on the breach of contract claim.28 On April 2, 2018, Team filed a
Id. at p. 3, ¶ 8.
Id. at p. 4, ¶ 9.
25 Id.
26 Id. at p. 4, ¶ 10.
27 R. Doc. 370.
28 Id.
23
24
4
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motion to amend, arguing the jury’s finding that Waypoint did not breach its contract
with Team was irreconcilably inconsistent with its assigning Waypoint and its agent
responsibility for damages.29
On September 6, 2018, the Court granted Team’s motion.30 The Court found the
jury verdict irreconcilably inconsistent, ordered “that the Court’s judgment for Defendant
Waypoint on Plaintiff Team’s breach of contract claim” be vacated, and ordered a new
trial on this claim.31
On March 20, 2019, the Court denied Team’s motion for summary judgment on
Team’s liability on the breach of contract claim.32 The Court found Team had not shown
it was entitled to judgment as a matter of law that Waypoint breached the contract.
The Court conducted the second jury trial in this matter from April 15, 2019 to
April 17, 2019.33 The trial was limited to Team’s breach of contract claim against
Waypoint.34 Specifically, the Court limited the trial to (1) Team’s breach of contract claim
against Waypoint for five of the Change Order Requests finalized in Change Order No. 10,
that had not been previously paid, and (2) Team’s breach of contract claim for contractual
interest based on Waypoint’s failure to pay Change Order No. 9 until July 10, 2017.35 On
the final day of trial, Waypoint moved for judgment as a matter of law under Rule 50(a)
of the Federal Rules of Civil Procedure.36 The Court denied Waypoint’s motion.37
R. Doc. 372.
R. Doc. 420.
31 Id. at pp. 8–10.
32 R. Doc. 487.
33 R. Docs. 550, 554, 555.
34 R. Doc. 519.
35 Id. at pp. 7–8.
36 R. Doc. 555.
37 Id.
29
30
5
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Team sought the following unpaid amounts under Change Order No. 10:38
Change Order Request 33 (Proposed Change Order 75)
Change Order Request 56 (Proposed Change Order 108)
Change Order Request 58 (Proposed Change Order 110)
Change Order Request 59 (Proposed Change Order 111)
Change Order Request 65 (Proposed Change Order 117)
$4,812.58
$8,697.59
$10,098.02
$13,000.00
$28,217.30
These amounts total $64,825.49.
The jury found Team established by a preponderance of the evidence that
Waypoint breached the contract by not paying Team in full for the amounts in Change
Order Requests 33, 58, and 65 and in part for Change Order Requests 56 and 65, and
awarded damages in the following amounts:39
Change Order Request 33 (Proposed Change Order 75)
Change Order Request 56 (Proposed Change Order 108)
Change Order Request 58 (Proposed Change Order 110)
Change Order Request 59 (Proposed Change Order 111)
Change Order Request 65 (Proposed Change Order 117)
$4,812.58
$6,000.00
$10,098.02
$13,000.00
$25,835.83
These amounts total $59,746.43. The jury also found that Team established by a
preponderance of the evidence that “Waypoint breached the contract by unreasonably
deciding not to pay Team for Change Order No. 9, plus retainage, within thirty days of
Waypoint’s signing Change Order No. 9.”40
On May 22, 2019, the Court entered an Order and Reasons finding Team was
entitled to contractual interest and attorneys’ fees.41 The Court entered judgment for
Team and against Waypoint in the amount of $113,766.36 plus interest, representing the
total of the contractual interest due on Change Order No. 9, the amounts awarded by the
jury under Change Order No. 10, and contractual interest due on Change Order No. 10.42
R. Doc. 548 at p. 8; Trial Ex. 113.
R. Doc. 559 at pp. 1–5.
40 Id. at p. 6.
41 R. Doc. 589.
42 R. Doc. 590.
38
39
6
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On August 27, 2019, Waypoint appealed various decisions by the Court, including
this Court’s September 6, 2018 Order and Reasons vacating the judgment from the first
trial.43 On February 5, 2021, the United States Court of Appeals for the Fifth Circuit
vacated the Court’s September 6, 2018 Order and Reasons and remanded the case for this
Court to reinstate the original verdict and to consider attorneys’ fees.44 The Fifth Circuit
directed the Court to determine which party was the “substantially prevailing party” for
purpose of the fee-shifting provision in the contract.45 On September 29, 2021, the Court
found Defendant Waypoint was the prevailing party under the contract, entitling it to
recover attorneys’ fees and costs.46 Team appealed the Court’s September 29, 2021 Order
and Reasons on October 19, 2021.47 On June 28, 2022, the Fifth Circuit dismissed Team’s
appeal for lack of jurisdiction.48
Waypoint then filed the instant motion to fix attorneys’ fees and costs, seeking to
recover $1,186,647.54 in attorneys’ fees and $44,755.11 in costs.49 The Court then referred
Waypoint’s motion to the assigned Magistrate Judge.50 On September 13, 2022,
Magistrate Judge Currault issued a Report and Recommendations, recommending that
Waypoint’s motion be granted in part and denied in part.51 Magistrate Judge Currault
recommends Waypoint be awarded $889,985.65 in attorneys’ fees and $38,151.51 in
R. Doc. 620.
R. Doc. 634.
45 Id.
46 R. Doc. 650.
47 R. Doc. 654.
48 R. Doc. 674.
49 R. Doc. 675.
50 R. Doc. 678.
51 R. Doc. 685.
43
44
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costs.52 Team filed timely filed an objection to Magistrate Judge Currault’s Report and
Recommendation.53 Waypoint filed a response.54
LEGAL STANDARD
Magistrate judges are empowered by statute to preside over certain pretrial
matters upon appointment by a district judge.55 A district court evaluating a magistrate
judge’s recommendation may adopt those portions of the recommendation to which no
specific objection is made, as long as those sections are not clearly erroneous.56 However,
when a party makes “specific, written objections” within fourteen days after being served
with a copy of the magistrate judge’s recommendations, the district court must undertake
a de novo review of those contested aspects of the report.57 The Court may then “accept,
reject, or modify the recommended decision; receive further evidence; or return the
matter to the magistrate judge with instructions.”58
“Federal Rule of Civil Procedure 54(d)(2)(D) authorizes referral of ‘a motion for
attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial
matter.”59 “A Magistrate Judge addressing [such a motion] under Rule 72(b) must
prepare a ‘recommended disposition,’ to which the parties can object.”60 “Then, the
Id. at p. 1.
R. Doc. 686.
54 R. Doc. 689.
55 28 U.S.C. § 636(b)(1)(A) (2018).
56 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
57 Id.
58 Fed. R. Civ. P. 72(b)(3).
59 Offshore Marine Contractors, Inc. v. Palm Energy Offshore, LLC, No. 10-4151, 2014 WL 5039670, at *3
(E.D. La. Sept. 25, 2014); see also Blair v. Sealift, Inc., 848 F. Supp. 670, 679 (E.D. La. 1994) (collecting
cases and holding “a post-trial motion for attorneys’ fees which is not a discovery sanction is a dispositive
matter; therefore, under 28 U.S.C. § 636(b)(1)(B), the magistrate judge’s decision in [addressing] a posttrial award of attorneys’ fees is subject to de novo review”)
60 Id.
52
53
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district judge ‘must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.’”61
LAW AND ANALYSIS
I. Summary of Waypoint’s Motion to Fix Attorneys’ Fees and Costs
In Waypoint’s motion for attorneys’ fees and costs before Magistrate Judge
Currault, it argued it is entitled to $1,186,647.54 in attorneys’ fees, which represents its
proposed lodestar amount.62 In doing so, Waypoint contended the rates charged by its
attorneys were reasonable and it reasonably adjusted its fees to ensure they were actually,
necessarily, and reasonably expended in litigating the case.63 In support, Waypoint
attached 491 pages of invoices with detailed transaction lists.64
In opposition, Team argued Waypoint’s calculation of its attorneys’ fees incorrectly
included fees incurred in pursuit of Waypoint’s own separate, independent claims against
HCA and KLG, for which Waypoint was not entitled to recover.65 Second, Team argued
Waypoint failed to exercise billing judgment where it did not attempt to segregate fees
related to “interwoven” claims.66 Relatedly, Team argued Waypoint inflated the fees
associated with defending Team’s breach of contract claim against Waypoint and included
fees related to other claims.67 Third, Team argued Waypoint’s fee calculation following
the first trial is unreasonable, because no discovery was conducted and the parties
engaged in limited motion practice.68 Finally, Team argued Waypoint’s fees and costs on
Id. (quoting FED. R. CIV. P. 72(b)).
R. Doc. 675-1 at p. 16.
63 Id. at p. 11. Waypoint makes additional arguments related to costs. However, as Team does not object to
the award of costs, the Court need not address those arguments here.
64 R. Doc. 685 at p. 16.
65 R. Doc. 683 at p. 6.
66 Id. at p. 11.
67 Id. at p. 14.
68 Id. at pp. 16-18.
61
62
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appeal plainly are not recoverable.69 On September 13, 2022, Magistrate Judge Currault
issued her Report and Recommendation.70
II. Summary of the Report and Recommendations
Magistrate Judge Currault found Waypoint’s rates were reasonable but its
suggested award of attorneys’ fees of $1,186,647.54, its lodestar, should be reduced by
25% to compensate for a lack of billing judgment.71 Magistrate Judge Currault noted
“[w]hile Waypoint exercised billing judgment by reducing entries for claims unrelated to
defense against Teams and miscellaneous entries . . . the Court found numerous entries
that did not reflect the proper exercise of billing judgment.”72 The Magistrate Judge
concluded “a reduction of the requested attorneys’ fees by 25% addresses the incomplete
exercise of billing judgment evidenced by the numerous entries of [clerical and
duplicative work], and unsuccessful motions amongst 491 pages of detailed invoices
spanning 7 years.”73
Further, Magistrate Judge Currault found no additional increase or reduction in
the lodestar was warranted under the factors identified in Johnson v. Georgia Highway
Express, Inc.74 Magistrate Judge Currault noted that neither party sought an increase or
deduction under Johnson, and “neither exceptional nor rare circumstances justify a
further reduction of the lodestar in addition to the deductions applied in arriving at the
lodestar.”75 Finally, Magistrate Judge Currault found Waypoint is entitled to costs in the
amount of $38,151.51.76
Id. at p. 19.
R. Doc. 685.
71 Id. at p. 16.
72 Id.
73 Id. at p. 17.
74 488 F.2d 714, 717-19 (5th Cir. 1974).
75 R. Doc. 685 at p. 19.
76 Id. at p. 22. Neither party objects to Magistrate Judge Currault’s quantification of costs.
69
70
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III.
Team’s Objections to Magistrate Judge Currault’s Report and
Recommendations
Team does not object to Magistrate Judge Currault’s award of costs.77 Instead,
Team only objects to the amount of the attorneys’ fees award.78
Team objects to Magistrate Judge Currault’s lodestar determination for six
reasons.79 First, Team argues “Waypoint, as the first-filing Plaintiff, is not entitled to
recover attorney’s fees and costs incurred in pursuit of its own separate, independent
claims.”80 Second, Team argues “case law supports a substantial reduction of Waypoint’s
fee and cost quantum through February 18, 2018 based on amounts in controversy.”81
Third, Team argues Waypoint is not entitled to attorneys’ fees incurred during its appeal
taken on August 27, 2019.82 Fourth, Team argues that a “close analysis of Waypoint’s fees
incurred through February 18, 2018 mandates that Waypoint’s fee claim for that period
be substantially reduced,” because not all the fees are demonstrably related to Team’s
claim against Waypoint.83 Fifth, Team argues “fees incurred by Waypoint from October
of 2019 through present are not compensable” because the fees are duplicative.84 Sixth
and finally, Team argues Waypoint’s fees incurred between February 19, 2018 to October
of 2019—i.e., between the end of the first trial and end of the second trial—should be
reduced by 50%.85
R. Doc. 686 at p. 1.
Id.
79 Team raised the objections in an order that is different from that discussed by the Court. However, the
Court finds it most clear to address the objections in the manner in which it has herein.
80 R. Doc. 686-1 at p. 7.
81 Id. at p. 14.
82 Id. at pp. 20-22.
83 Id. at p. 12.
84 Id. at p. 22.
85 Id. at p. 18.
77
78
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IV.
Lodestar Calculation Legal Standard
When attorneys’ fees are authorized, “[t]he trial court is vested with much
discretion in determining the amount of attorneys’ fees.”86 “Reasonable attorneys’ fees
are determined through a two-step process. The district court must first calculate the
lodestar—‘the number of hours reasonable expended multiplied by the prevailing hourly
rate in the community for similar work.’”87 “The lodestar is presumed reasonable, but the
court may then enhance or decrease it after considering the twelve Johnson factors.”88
Neither party objects to Magistrate Judge Currault’s finding that neither an enhancement
nor a decrease under the Johnson factors was warranted.89 Accordingly, the Court will
only address the lodestar calculation.
In calculating the lodestar, a court must determine the number of hours reasonably
expended on the litigation, multiplied by a reasonable hourly rate.90 As the party
requesting fees, Waypoint bears the burden of establishing the reasonableness of the fees
it requests by submitting adequate documentation – namely, time records, affidavits, and
the like.91 The party seeking fees must demonstrate the exercise of billing judgment, which
refers to the usual practice of writing off unproductive, excessive or redundant hours.92
“Ideally, billing judgment is reflected in the fee application, showing not only hours
claimed, but also hours written off.”93 “The proper remedy when there is no evidence of
Peyton Place, No. 08-365 at p. 20, 18 So. 3d at 146.
Fessler v. Porcelana Corona De Mexico, S.A. DE C.V., 23 F.4th 408, 415 (5th Cir. 2022).
88 Id.
89 R. Doc. 685 at pp. 17-19.
90 La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
91 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (observing that “the fee applicant bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly rates”);
Who Dat Yat Chat, LLC v. Who Dat, Inc., 838 F. Supp. 2d 516, 518 (E.D. La. 2012).
92 Walker v. Dept. of Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996).
93 Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990), vacated in part on other grounds, 903 F.2d
352 (5th Cir. 1990).
86
87
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billing judgment is to reduce the hours awarded by a percentage intended to substitute
for the exercise of billing judgment.”94 As an alternative to reducing the hours awarded as
a percentage, the Court may exclude hours that were not reasonably expended and/or
conduct a line-by-line analysis of the time report.95 “The district court is not required ‘to
achieve auditing perfection,’ as ‘[t]he essential goal in shifting fees (to either party) is to
do rough justice.”96 Indeed, the Court need not explicitly calculate the lodestar to make a
reasonable award.97
V.
Analysis.
The Court will address each of Team’s objections in turn.
a. Team’s First and Second Objections.
Team’s first and second objections—that Waypoint cannot recover attorneys’ fees
incurred in pursuit of its own claims, and that a substantial reduction based on amounts
in controversy is warranted—are mere restatements of the arguments made in Team’s
opposition. Merely re-urging arguments previously raised is insufficient to receive de
novo review.98 Instead, “[t]hose portions of the report not objected to are reviewed only
for plain error.”99 Because these two objections raised by Team are nearly verbatim to its
arguments in its opposition, the Court finds the objections insufficient and will review
them only under a clearly erroneous or contrary to law standard. Doing so, the Court finds
the Magistrate Judge’s findings on these points were not clearly erroneous or contrary to
Id.; see also United States ex rel McNeil v. Jolly, 451 F. Supp. 3d 657, 670 (E.D. La. 2020) (“If a party
fails to provide sufficient evidence of billing judgment, the proper remedy is ‘a reduction of the award by a
percentage intended to substitute for the exercise of billing judgment.’”).
95 See Fleming v. Elliott Sec. Solns, LLC, No. 19-2348, 2021 WL 4908875, at *5 (E.D. La. Oct. 21, 2021).
96 DeLeon v. Abbott, 687 F. App’x 340, 343 (5th Cir. 2017) (internal citations omitted).
97 No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 500-01 (5th Cir. 2001).
98 See Allen v. Outlaw, No. 5:14-cv-60-DCB-MTP, 2015 WL 4759268, at *2 (S.D. Miss. Aug. 12, 2015).
99 Id.
94
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law. Team’s first and second objections are overruled. The remaining four objections will
be reviewed de novo.
b. Team’s Third Objection.
In Team’s third objection, it argues that the Magistrate Judge erred in awarding
Waypoint attorneys’ fees incurred during the pendency of its appeal, commenced on
August 27, 2019. The Court reviews the Magistrate Judge’s finding de novo.100 “An
increase in attorney fees generally should be granted when a party who was awarded
attorney fees in the trial court is forced to and successfully defends against an appeal.”101
However, a party who brought the appeal, rather than being forced to defend an appeal,
is not entitled to those fees incurred during the appeal.102 In the instant matter, Waypoint
appealed various decisions by the Court on August 27, 2019, meaning Waypoint was not
defending against an appeal.103 Waypoint is not entitled to attorney’s fees incurred
during the pendency of its appeal. Team’s third objection is sustained. Accordingly, the
Court will reduce Waypoint’s appellate fees from its suggested lodestar amount of
$1,186,647.54.
Team contends Waypoint’s fees incurred on appeal total $138,615.09.104 Team
cited no record support for this total. The Court has calculated what it believes to be a
reasonable deduction for appellate fees based on Waypoint’s provided invoice
summary.105 The Court will deduct $120,000 from Waypoint’s suggested lodestar
R. Doc. 686-1 at p. 20.
Racca v. Acme Truck Lines, Inc., 115 So. 3d 1222, 1231 (La. App. 3 Cir. 6/12/13) (quoting Nitcher v.
Northshore Regional Med. Center, 92 So. 3d 1001, 1014 (La. App. 1 Cir. 5/2/12)).
102 Id.
103 R. Doc. 620. In contrast, Waypoint is entitled to attorneys’ fees incurred during Team’s appeal taken on
October 19, 2021, because Waypoint was defending this appeal. Team does not contest this point.
104 R. Doc. 683 at p. 20.
105 R. Doc. 675-11 at p. 2.
100
101
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amount, to reach a new total of $1,066,647.54 in attorney’s fees before the reduction for
lack of billing judgment.
c. Team’s Fourth and Fifth Objections.
Team objects to Magistrate Judge Currault’s finding that the lodestar amount
should only be reduced by 25% for a lack of billing judgment. The Court finds Team’s
objections on this point unpersuasive.
In Team’s fourth objection, it argues a “close analysis of Waypoint’s fees incurred
through February 18, 2018 mandates that Waypoint’s fee claim for that period be
substantially reduced.”106 Team argues “an exhaustive line-by-line analysis” of the 491
pages of billing records indicate that only 17.9% of the fees invoiced by counsel for
Waypoint were “demonstrably related” to Team’s claims.107 Similarly, in Team’s fifth
objection, it argues “[a]ll fees incurred by Waypoint after October 1, 2019 should be
deducted from Waypoint’s attorney fee quantum except for fees incurred in responding
to Team’s memoranda in support of its arguments to be designated as the prevailing
party.”108 Team argues other briefing done by Waypoint was “essentially a carbon copy of
the Memo bearing the same title that Waypoint submitted following the first trial.”109
The Court disagrees. In conducting a de novo review of Waypoint’s exercise of
billing judgment, the Court finds a 25% reduction in Waypoint’s proposed lodestar
amount is appropriate. While Waypoint exercised adequate billing judgment to a certain
degree,110 it lacked billing judgment in other areas.111 The Court finds a 25% reduction to
R. Doc. 686-1 at p. 12.
Id. at p. 13.
108 Id. at p. 22.
109 Id.
110 See, e.g., R. Doc. 635-15 at pp. 16-18; R. Doc. 675-1 at pp. 11-16.
111 See, e.g., R. Doc. 635-15 at pp. 27, 35, 39, 43, 55, 61, 69, 70, 80, 81, 114, 118, 119, 134, 143, 269, 369, 407
(clerical work); R. Doc. 675-17 at p. 10 (clerical work); R. Doc. 635-15 at pp. 27, 35, 55, 79, 98, 117, 118, 136,
158, 218, 220, 221, 235, 238, 267, 301, 320, 332, 368, 372 (duplicative work of multiple attorneys or
106
107
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the requested lodestar amount is sufficient to act as a substitute for the exercise of billing
judgment.112 Moreover, having reviewed the invoices, the Court finds the 25% reduction
properly protects against the possibility of certain unrelated or repetitious billing records.
Moreover, “[t]he district court is not required ‘to achieve auditing perfection,’ as ‘[t]he
essential goal in shifting fees (to either party) is to do rough justice.”113 The 25% reduction
to the lodestar properly achieves the essential goal of doing “rough justice,” and Team’s
fourth and fifth objections are overruled.
d. Team’s Sixth Objection.
In Team’s final objection, Team objects to the 25% reduction between February 19,
2018 to October of 2019—the period between the end of the first trial and the end of the
second trial—arguing the lodestar should instead be reduced by 50% during that time
period.114 Team argues such a reduction is proper because attorneys’ fees awards are
designed “to discourage a particular activity on the part of the other party,” and “[t]here
is no conceivable deterrent effect in penalizing Team for a) objecting to a clearly
inconsistent jury verdict; b) seeking an amendment of the judgment based on said verdict,
then going forward with the new trial ordered by the trial court in lieu of amendment; and
c) winning that second trial on every count.”115
Conducting a de novo review, the Court rejects Team’s argument. Whether there
is a conceivable deterrent effect in penalizing Team is not a question before the Court.
Unlike in civil rights cases, where a fee-shifting statute provides for attorneys’ fees to the
paralegals); id. at pp. 243, 244, 245, 252, 255, 256, 257, 277, 291, 292, 296, 317, 318, 319, 352, 354, 384,
392, 393, 399 (work involving unsuccessful motions); id. at pp. 39, 62, 68, 78, 96, 98, 100, 113, 116, 120,
121, 138, 160 (work on discovery requests and depositions and other work for which attorney entries
indicate the work related to KLG and HCA).
112 Alberti, 896 F.2d at 930.
113 DeLeon v. Abbott, 687 F. App’x 340, 343 (5th Cir. 2017) (internal citations omitted).
114 R. Doc. 686-1 at p. 18.
115 Id. at p. 19.
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prevailing party in order to further the interest of justice or a societal need, the attorneys’
fees in this case are provided for by contract. The only issue before the Court at this time
is the amount of those attorneys’ fees. The Court refrains from calling into question the
purpose of attorneys’ fees in contractual agreements, and the Court will not further reduce
the lodestar amount on that basis. Team’s sixth objection is overruled.
The Court will reduce the total of $1,066,647.54 by 25%. Accordingly, Waypoint is
entitled to attorneys’ fees in the amount of $799,985.66.116
CONCLUSION
Team has failed to specifically object to the remaining findings of the Magistrate
Judge, so the Court reviews them under a clearly erroneous or contrary to law standard.
Doing so, the findings are not clearly erroneous or contrary to law.
For the foregoing reasons, the Court ADOPTS Magistrate Judge Currault’s Report
and Recommendation117 in part. The Court adopts the Report and Recommendation,
except as to the Magistrate Judge’s award of fees incurred on appeal to Defendant.
Accordingly;
IT IS ORDERED that Defendant’s motion to fix attorneys’ fees and costs in
GRANTED IN PART and DENIED IN PART. Defendant is entitled to attorneys’ fees
in the amount of $799,985.66 and costs in the amount of $38,151.51.
New Orleans, Louisiana, this 30th day of March, 2023.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Neither party objects to Magistrate Judge Currault’s finding that an adjustment to the lodestar amount
on the basis of the Johnson factors is not warranted. Accordingly, the Court reviews this finding under a
clearly erroneous or contrary to law standard. The Court finds it is not clearly erroneous or contrary to law.
117 R. Doc. 12.
116
17
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