Procaccino v. Jeansonne, et al

Filing 55

ORDER AND REASONS granting 49 Motion for Attorney Fees. Signed by Judge Martin L.C. Feldman on 12/23/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KYMBERLY M. PROCACCINO

CIVIL ACTION

v.

NO. 17-4748

DAVID J. JEANSONNE, II, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion for attorney’s
fees.

For the reasons that follow, the motion is GRANTED.
Background

This

lawsuit,

which

arose

from

the

alleged

breach

of

a

severance agreement confected after the end of an office romance
led to the plaintiff’s termination of employment, was settled by
the parties.

The only issue remaining is whether the plaintiff

may recover attorney’s fees incurred during the time in which the
defendants refused to abide by the settlement agreement.
This factual summary assumes familiarity with the Court’s
Order and Reasons dated July 12, 2017, which is hereby incorporated
by reference.

The Court restates the more salient facts bearing

on Ms. Procaccino’s request for attorney’s fees.

David Jeansonne

II owns or co-owns various limited liability companies, including
1

Traffic

Jam

Procaccino

Events,
was

LLC

employed

(TJE).
by

TJE.

Before
Ms.

romantically involved with Mr. Jeansonne.
relationship

ended,

Mr.

Jeansonne

May

2012,

Procaccino

Kymberly
was

also

When their romantic

terminated

Ms.

Procaccino’s

employment.
On May 16, 2012, Ms. Procaccino agreed to release any claims
respecting her termination of employment and, in exchange, Mr.
Jeansonne and his affiliated companies agreed to pay Ms. Procaccino
a total of $120,000, payable in monthly installments of $10,000. 1
The first $10,000 installment payment was timely made, but no other
installment payments followed.

According to Ms. Procaccino, Mr.

Jeansonne refused additional payment due to his personal ill
feelings.
On May 5, 2017, Ms. Procaccino sued Mr. Jeansonne along with
Traffic Jam Events, LLC (TJE), Platinum Plus Printing, LLC (PPP),
and DTJ Properties, LLC (DTJ) in this Court, invoking the Court’s
diversity

jurisdiction.

Ms.

Procaccino

alleged

that

the

defendants’ refusal to pay the remaining 11 installment payments

The severance agreement calls for application of Louisiana
law. Among its other terms is a confidentiality provision in which
Ms. Procaccino agrees not to disclose certain confidential
information as well as a provision calling for the breaching
party’s reimbursement of reasonable attorney’s fees and costs to
the non-breaching party.
2
1

pursuant

to

contract.

the

severance

agreement

constitutes

breach

of

She sought to recover the $110,000 owed under the

severance agreement; all reasonable attorney’s fees and costs she
incurs in enforcing the severance agreement; damages for losses
due

to

the

obligation;

defendants’
and

damages

bad
for

faith

refusal

nonpecuniary

to
loss

perform

their

pursuant

to

Louisiana Civil Code article 1998.
Shortly after this lawsuit was filed and defendants were
served, on May 15, 2017, defense counsel, Stephen Kepper called
plaintiff’s counsel, Jacob Weixler, to attempt to settle the case
and to obtain the plaintiff’s consent to seal her complaint. 2

Mr.

Weixler told Mr. Kepper that she agreed to seal the complaint
without waiving any challenge to the merits of Mr. Jeansonne’s
confidentiality arguments.

Mr. Kepper stated that he was given an

order from his client to file an answer and counterclaims to Ms.
Procaccino’s complaint, or settle the case, by the end of the day
(May 15).

Mr. Kepper stated that his client authorized him to

settle all claims between the parties for $130,000. Ms. Procaccino
rejected the offer.

The facts concerning settlement negotiations are summarized
from the sworn declarations of Mr. Jeansonne, as well as counsel
for plaintiff, Jacob Weixler, counsel for defendants, Stephen
Kepper, and Thomas McEachin, who is a named partner at the firm
where Mr. Weixler is an associate attorney.
3
2

To counter, Mr. Weixler proposed a settlement that would only
resolve Ms. Procaccino’s claim under the severance agreement for
$130,000, but Mr. Kepper insisted that the defendants were only
interested in a global settlement that would settle all claims
that may exist between the parties; he stated that he would not
engage in discussions limited to settling only the claim underlying
this lawsuit.

In particular, Mr. Kepper represented that his

clients also wished to discuss resolution of a real estate dispute
between

Ms.

Procaccino

and

Mr.

Jeansonne

as

settlement of the severance agreement lawsuit. 3

a

part

of

any

Nevertheless, Mr.

Kepper agreed to discuss the counteroffer with his client.

Mr.

Kepper did so and then left Mr. Weixler a voicemail message; when
Mr.

Weixler

returned

his

call,

Mr.

Kepper

stated

that

the

defendants were only interested in settling all claims that may
exist among the parties.

Mr. Kepper then said “I have my clients’

authority to settle for $180,000.” He said that he was “surprised”
that Mr. Jeansonne gave him this authority given “who he is” and
the aggressive approach he has taken toward Ms. Procaccino and

According to the parties’ submissions, Ms. Procaccino and Mr.
Jeansonne were co-owners of property in Jefferson Parish,
Louisiana. That property was sold and the $340,000 in proceeds
was placed into an escrow account until the parties could resolve
Ms. Procaccino’s claim to an equal share of the proceeds, which
Mr. Jeansonne disputes. Mr. Kepper indicated to Mr. Weixler that
Mr. Jeansonne disputed the value of her property claim more than
he disputed the value of her severance agreement claim.
4
3

this litigation.

Mr. Kepper stated that Mr. Jeansonne had offered

the $180,000 in the hopes that he could put the litigation behind
him before filing an answer and counterclaims later in the day.
Mr. Weixler advised Mr. Kepper that his client was unlikely to
accept this offer given that Ms. Procaccino estimates that her
severance and real estate claims are worth approximately $300,000.
But Ms. Procaccino did indeed accept the offer.

With Ms.

Procaccino’s blessing, Mr. Weixler called Mr. Kepper to advise him
that Ms. Procaccino, who wished to put her entanglement with
defendants behind her, had accepted the defendants’ offer to
settle.

Expressing relief that that matter was concluded, Mr.

Kepper asked that Mr. Weixler send him an email confirming Ms.
Procaccino’s acceptance and specifying the terms to which the
parties had agreed, for the express purpose of binding the parties
in writing, and so that Mr. Kepper was no longer obliged to file
his client’s answer and counterclaims by the end of the day. 4

Mr.

Kepper said that he would reply to Mr. Weixler’s email to document
his clients’ acceptance of the settlement terms.
On that same day that Mr. Kepper first initiated settlement
discussions, Mr. Weixler emailed him at 3:23 p.m., confirming in

According to Mr. Weixler, “[a]t no time did Mr. Kepper state
that he needed Mr. Jeansonne’s further approval to settle the
matter for $180,000.”
5
4

writing Ms. Procaccino’s acceptance of the settlement offer and
detailing the terms discussed by telephone with Mr. Kepper.

About

20 minutes later, Mr. Kepper called Mr. Weixler to ask if Ms.
Procaccino would consent to two additional terms: to seal the
complaint

in

confidential.

this

matter

and

to

keep

certain

information

Mr. Weixler told Mr. Kepper that his client agreed

with the additional terms.

Mr. Kepper said that he would confirm

the settlement agreement by replying to Mr. Weixler’s prior email
and memorialize the additional terms to which the parties had just
agreed. Mr. Kepper asked that Mr. Weixler reply to his forthcoming
email to say that Ms. Procaccino had no objections to including
the two terms just agreed upon; Mr. Weixler agreed that he would
confirm in writing that his client did not object.
Shortly after the phone conversation, Mr. Kepper emailed Mr.
Weixler,

stating

that

the

defendants

accepted

the

settlement

agreement and referencing the additional terms agreed upon by
telephone.

As promised, Mr. Weixler replied to the email stating

“No objection” to inclusion of the additional terms.
On the morning of May 16, 2017, Mr. Jeansonne reneged; he
informed his attorney that the defendants no longer wanted to
settle

on

the

agreed-upon

terms.

Mr.

Kepper

says

that

he

immediately called Mr. Weixler to inform him that the defendants
6

had declined to settle on the terms negotiated, but Ms. Weixler
says that he did not receive a call from Mr. Kepper on May 16,
2017.
Greg

Rather, according to Mr. Weixler, on the evening of May 16,
Latham,

who

is

Mr.

Kepper’s

co-counsel,

called

Thomas

McEachin, who is a named partner at the firm where Mr. Weixler is
an associate attorney, and who is also a longtime friend of Mr.
Latham. Mr. Latham told Mr. McEachin that Mr. Kepper had authority
from his client to settle the matter on the agreed-upon terms, but
that Mr. Jeansonne had changed his mind.

Mr. Latham said that Mr.

Kepper had spent most of the day attempting to convince Mr.
Jeansonne

to

honor

the

agreement

unsuccessfully tried to do the same.

and

that

Mr.

Latham

had

Mr. McEachin then called Mr.

Weixler and told him about the call with Mr. Latham.
At 9:58 a.m. on May 17, 2017, Mr. Weixler called Mr. Kepper
to inquire as to why Mr. Jeansonne could back out of a confirmed,
written agreement.

Mr. Kepper remarked that Mr. Jeansonne “went

to bed on Monday night” with a settlement agreement, and “woke up
on Tuesday morning and decided” there was no deal.

According to

Mr. Weixler, Mr. Kepper “never said that he did not have Mr.
Jeansonne’s authority to settle the claims.”
That evening at 5:28 p.m., Mr. Weixler emailed Mr. Kepper,
stating

that

Ms.

Procaccino

planned
7

to

move

to

enforce

the

settlement agreement.

Mr. Kepper replied by arguing that Mr.

Jeansonne was not bound because the parties had not signed a final
settlement contract.

Mr. Kepper attached a courtesy copy of the

defendants’ answer and counterclaims; the defendants’ motion for
leave

to

file

their

answer

and

counterclaims

under

seal

was

contested and therefore set for hearing.
In his sworn declaration, Mr. Kepper stated:
Because Mr. Jeansonne had given me only general
authority to negotiate a settlement but not to enter
into any final settlement agreement on behalf of all
[d]efendants, I was careful to point out in my email to
Mr. Weixler that “Obviously, all of these terms are
subject to approval of a final settlement agreement.” I
never had express authority from Mr. Jeansonne to enter
into any settlement agreement on behalf of the
[d]efendants.”

Mr. Jeansonne submits a declaration in which he states that he
“gave Mr. Kepper general authority to negotiate a settlement on
behalf of the [d]efendants, [but that he] never gave Mr. Kepper
authority to enter into a binding settlement agreement on behalf
of the [d]efendants.”

(emphasis in original).

Mr. Jeansonne says

that he “made it clear to Mr. Kepper that any settlement agreement
would first have to be reduced to writing and submitted to [him]
for [his] final review, approval, and signature.” After Mr. Kepper
informed him of the terms that had been negotiated and that counsel
for

plaintiff

was

preparing

a
8

final

written

agreement,

Mr.

Jeansonne says he “consider[ed] the negotiated terms overnight”
but

“before

receiving

any

written

settlement

agreement,”

Mr.

Jeansonne says he called his attorney to inform him that the
defendants did not wish to settle on the terms that had been
negotiated.
The plaintiff moved to enforce the settlement agreement and
the defendants moved to dismiss the plaintiff’s breach of contract
lawsuit as time-barred. On July 12, 2017, the Court denied the
defendants’

motion

plaintiff’s

motion

to
to

dismiss
enforce

and

deferred

settlement

ruling

agreement

on

the

pending

a

limited evidentiary hearing. Two weeks later, the defendants moved
to

withdraw

their

opposition

to

the

motion

to

enforce

the

settlement agreement and requested that the Court cancel the
evidentiary hearing.

The Court granted the defendants’ motion to

withdraw their opposition, cancelled the evidentiary hearing, and
granted the motion to enforce the settlement agreement, but stayed
its order until the Court issues its ruling on the plaintiff’s
motion for attorney’s fees. The plaintiff now moves for attorney’s
fees.
I.
Ms. Procaccino seeks to recover the attorney’s fees she
incurred as a result of the defendants’ initial refusal to abide
9

by the parties’ May 15, 2017 settlement agreement.

She says that

the defendants’ refusal constitutes bad faith insofar as the
defendants (i) lacked evidence that that settlement agreement was
unenforceable, (ii) misled the Court, and (iii) falsely claimed
that their counsel was not authorized to settle, despite all
evidence to the contrary.

Only after the Court invited Mr.

Jeansonne and his counsel to testify in support of their claim
that defense counsel did not have Mr. Jeansonne’s express authority
to settle pursuant to the terms memorialized in the reciprocal
emails did the defendants move to withdraw their opposition to the
plaintiff’s motion to enforce the settlement agreement.

The

defendants counter that they had a good faith foundation for their
legal

argument

concerning

express

authority,

and

that

the

plaintiff offers little support justifying a grant of attorney’s
fees under the circumstances.
they

realized

that

the

Court

The defendants submit that, once
disagreed

with

the

defendants’

analysis, they “almost immediately took steps to minimize the need
for any further litigation.”

The defendants urge the Court not to

penalize them for advocating their position in good faith.

10

A.
Ms.

Procaccino

invokes

this

Court’s

inherent

sanction a party for advancing claims in bad faith.

power

to

As the United

States Supreme Court has observed:
Federal courts possess certain “inherent powers,” not
conferred by rule or statute, “to manage their own
affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R. Co., 370 U.S.
626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). That
authority
includes
“the
ability
to
fashion
an
appropriate sanction for conduct which abuses the
judicial process.”
Chambers v. NASCO, Inc., 501 U.S.
32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). And
one permissible sanction is an “assessment of attorney’s
fees”—an
order,
like
the
one
[requested]
here,
instructing a party that has acted in bad faith to
reimburse legal fees and costs incurred by the other
side. Id., at 45, 111 S.Ct. 2123.

Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186 (2017).
A court’s inherent power to impose attorney’s fees as a sanction
is limited “to cases in which a litigant has engaged in bad-faith
conduct or willful disobedience of a court’s orders.”

Chambers v.

NASCO, Inc., 501 U.S. 32, 47 (1991)(explaining that a court has
inherent power to award attorney’s fees to sanction the willful
disobedience of a court order and to sanction a party who has acted
in bad faith, vexatiously, wantonly, or for oppressive reasons).
Compensatory, rather than punitive, in nature, such a sanction
sensibly must be “’calibrate[d] to [the] damages caused by’ the
11

bad-faith acts on which it is based.”
(citation omitted).

Haeger, 137 S.Ct. at 1186

Thus, “[t]he complaining party...may recover

“’only the portion of his fees that he would not have paid but
for’ the misconduct.”

Id. at 1187 (citations omitted).

The only issue is whether the defendants’ conduct amounts to
bad faith.

The Court finds that the defendants inexplicably

reneged on a binding settlement agreement and then unnecessarily
multiplied proceedings by opposing enforcement of the settlement
agreement

with

opposition. 5

no

factual

predicate

in

support

of

their

Only after the Court indicated that it could only

resolve the defendants’ defense to settlement enforcement after
evaluating Mr. Jeansonne’s credibility during a hearing did the
defendants withdraw their opposition to the plaintiff’s motion to
enforce settlement agreement. 6 The appropriate sanction is to
compensate the plaintiff for the attorney’s fees she was forced to
incur as a result of the defendants’ misconduct in obstructing the
settlement and multiplying proceedings.

The Court was unable to

probe Mr. Jeansonne’s credibility as to his defense that he did
not give his attorney express authority to settle the case on the

The defendants insisted that the Court must hear their motion to
dismiss before or along with the plaintiff’s motion to enforce the
settlement agreement; the defendants also sought leave to file
their answer and counterclaims under seal.
6 It is clear that the defendants did not want their defense probed
in open court.
12
5

terms his attorney proposed.

Nevertheless, the Court finds that

the record demonstrates that the defendants advanced their noexpress-authority defense to the settlement agreement solely to
harass or annoy the plaintiff, without any credible basis in fact.
Indeed, notably, there is nothing in the record to indicate that
Mr. Jeansonne acted in good faith when he refused to abide by the
settlement agreement, an agreement he now admits is enforceable
and binding.

All of the evidence in the record amply supported a

finding that the parties had settled their differences and that
Mr. Jeansonne changed his mind, opting to aggressively pursue
motion practice instead of honoring the settlement agreement (and
all

the

while

attempting

to

settle

contained in the May 17 agreement).

for

less

than

the

terms

Unable to convince Mr.

Jeansonne to honor the agreement, it appears that his attorneys
were forced to attempt to explain the defendants’ refusal by
suggesting (in conclusory fashion and contrary to all other facts
in the record) that Mr. Jeansonne had ordered counsel to settle
the case on terms he proposed, but that he had not technically
provided his “express authority” to be bound by those terms.
all

facts

and

inferences

therefrom

undermine

a

When

position

or

strategy, which is nevertheless pursued, this is precisely the
sort of defense that constitutes vexatious litigation conduct.
Under the circumstances of this case and given the facts of record,
13

the Court finds that the defendants acted vexatiously and in bad
faith

in

refusing

to

honor

the

settlement

agreement

and

unnecessarily multiplied proceedings by forcing the plaintiff to
continue to litigate a dispute that had been resolved by moving to
enforce the settlement agreement as well as filing papers to oppose
motions filed by the defendants. 7

The plaintiff has demonstrated

that sanctions in the form of attorney’s fees, those which would
not have been incurred but for the defendants’ bad faith conduct,
are warranted.
“Pursuant to its inherent power, a court may assess attorney’s
fees when a party has acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.”

Seals v. Herzing Inc.-New Orleans,

482 Fed.Appx. 893, 897 (5th Cir. 2012)(citing Chambers v. NASCO,
Inc., 501 U.S. 32, 55 (1991))(internal quotations omitted).

In

Seals, the per curiam panel noted: “we have held that a party’s
refusal

to

abide

by

the

[arbitration]

award

‘without

justification’ qualifies as vexatious behavior that can support
the award of attorneys’ fees by a federal court.”

Id. (citations

omitted). 8

abide

Here,

Mr.

Jeansonne’s

refusal

to

by

the

Not to mention forcing the Court to expend considerable resources
on a case that had already settled.
8 In Seals, this Court held that a party who refuses to honor an
enforceable settlement agreement may be ordered to compensate his
opponent for the additional fees that party has been forced to
incur. Seals v. Herzing, Inc., No. 10-2848, 2012 WL 85280, at *4
14
7

settlement agreement without justification and to unnecessarily
multiply proceedings compels the same result.

In opposing the

plaintiff’s motion to enforce the settlement agreement, a motion
that was supported by ample evidence, the defendants did not
attempt to explain the evidence submitted, but simply concluded
that Mr. Jeansonne had not technically given express authority to
settle, despite the evidence in the record contradicting this
“defense.”

Unfortunately, the defendants’ unsupported litigation

strategy (pursuing a defense that was withdrawn once the Court
ordered

an

evidentiary

hearing

during

which

Mr.

Jeansonne’s

credibility would be examined), which apparently was motivated by
a desire to multiply proceedings or harass the plaintiff, cost Ms.
Procaccino
Advancing

tens
a

of

thousands

colorless

defense

of
to

dollars

in

settlement

attorney’s

fees.

enforcement

for

oppressive reasons (to pursue unsubstantiated claims and defenses
all the while accusing your ex-girlfriend, the plaintiff, of
extortion) constitutes bad faith that is grounds for an award of
attorney’s fees as a sanction. 9

(E.D. La. Jan. 11, 2012), aff’d, 482 Fed.Appx. 893 (5th Cir. 2012).
The defendants attempt to distinguish Seals on the ground that the
plaintiff in Seals “did not dispute any of the terms of the
settlement agreement.” But the defendants (continue to) fail to
identify any terms of the settlement agreement here that they
genuinely disputed.
9 That Mr. Jeansonne’s litigation strategy was driven by emotion
or ill-feelings toward his ex-girlfriend, the plaintiff, is
15

B.
Mindful of the compensatory nature of an attorney’s fee award
as a sanction, the Court turns to consider whether the plaintiff’s
fee

submission

defendants’

bad

is

calibrated

faith

to

the

litigation

damages

strategy

in

caused

by

reneging

the
on

a

settlement agreement and advancing a frivolous defense to its
enforcement.

Notably, the defendants offer no argument bearing on

the quantum of the fee award requested by the plaintiff.
The

Court

has

carefully

submission on attorney’s fees.

scrutinized

the

plaintiff’s

Given that there is no dispute to

be resolved concerning the quantum of the attorney’s fees sanction
award, the Court accepts the attorney’s fees evidence, including
the

unrefuted

affidavit

of

reasonableness of the fees.

Judy

Barrasso,

bearing

on

the

Not only are the fees requested

apparent on the record.
According to the record made by the
plaintiff in support of the motion to enforce the settlement
agreement, from the moment Mr. Jeansonne became aware of the
lawsuit, he gave his attorney an ultimatum to settle the case or
file an answer and counterclaims that same day. Yet, even after
the case had settled that day, Mr. Jeansonne decided to force the
plaintiff to seek court enforcement of the settlement while he
filed papers advancing his defense of the settled case and
countersuing. That Mr. Jeansonne relented and finally agreed to
adhere to the settlement agreement once the Court scheduled a
hearing during which Mr. Jeansonne would be called to testify
concerning the circumstances surrounding his purported failure to
expressly authorize his attorney to settle the case does not, as
the defendants argue, suggest good faith. Nor does this belated
acquiescence imbue his prior conduct with good faith.
16

reasonable in quantum, but counsel for plaintiff has set forth the
legal fees reflecting the date, time, and nature of the services
performed; all of which concern services performed after and due
to the defendants’ refusal to abide by the settlement agreement.
The fees requested are those incurred since May 15, 2017, when the
parties agreed to settle the matter. After the defendants reneged,
counsel for plaintiff was required to draft and file a motion to
enforce

settlement

agreement,

as

well

as

draft

opposition to the defendants’ motion to dismiss.

and

file

an

Notably in the

sworn declaration submitted by plaintiff’s counsel in support of
its attorney’s fee award, counsel states:
The Fee Schedule does not reflect all attorney’s fees
incurred by Ms. Procaccino from my firm, or even all
fees incurred from May 15th to the present. Instead, the
Fee Schedule includes only the legal fees from May 15th
to the present that are directly attributable to the
Defendants’ decision to oppose the enforcement of their
own agreement. For instance, the Fee Schedule entries
relate to the preparation and filing of the Motion to
Enforce the Settlement Agreement, the opposition to the
Defendants’ Motion to Dismiss, the instant Motion for
Attorney’s Fees, as well as filings related to such
motions.

The defendants do not challenge this submission.

The Court finds

that the plaintiff’s fee submission is reasonable and includes
only those fees and costs attributable to the defendants’ refusal
to honor the settlement agreement.
17

Accordingly,

for

the

foregoing

reasons,

the

plaintiff’s

motion for attorney’s fees is hereby GRANTED, and the defendants,
jointly

and

in

solido,

are

hereby

ordered

to

compensate

the

plaintiff those attorney’s fees, totaling $34,586.00, set forth in
the Schedule of Legal Fees Incurred, which were incurred as a
result of the defendants’ bad faith refusal to honor the May 15,
2017 settlement agreement.
New Orleans, Louisiana, December ___, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

18