Cargill, Inc. v. Clark et al

Filing 48

RULING granting 40 Motion for Attorney Fees and Costs by Cargill, Incorporated. Signed by Judge James J. Brady on 03/20/2013. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CARGILL, INC.
CIVIL ACTION
VERSUS
NO. 10-487-JJB
BRETT MICHAEL CLARK, ET AL.
RULING ON PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
This matter is before the Court on a motion for attorney fees and costs filed by Plaintiff
Cargill, Incorporated (“Cargill”). (Doc. 40). Defendants Brett Michael Clark (“Clark”), Clark
Farms #2, L.L.C. (“Clark Farms”), and Bayou Current Farms, L.L.C. (“Bayou Farms”)
(collectively “defendants”) have filed an opposition (Doc. 44), to which Cargill has filed a reply.
(Doc. 47). Oral argument is unnecessary. Jurisdiction exists pursuant to 28 U.S.C. § 1332. For
the reasons herein, the Court GRANTS Cargill’s Motion for Attorney Fees and Costs. (Doc. 40).
I.
On December 7, 2012, this Court granted Cargill’s motion for summary judgment and
advised Cargill to file a separate motion for costs and attorney fees. (Doc. 39). The history of this
litigation was documented in this Court’s ruling granting summary judgment and will not be
repeated here except to the extent necessary to address the present motion. Between March 2006
and September 2007, Cargill and Clark Farms entered into eleven separate contracts for the
purchase of grain, and on July 23, 2008, Cargill filed suit alleging that Clark Farms breached six
of the contracts. Pursuant to the arbitration agreements in the contracts, Cargill obtained three
separate default judgments against Clark and Clark Farms, which were rendered by the National
Grain and Feed Association (“NGFA”) and confirmed by this Court. In this Court’s ruling

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granting summary judgment, this Court pierced the corporate veil and found that Clark should be
held personally liable for the actions of Clark Farm and Bayou Farms.
In the present motion, Cargill has submitted its records, seeking an order fixing attorney
fees and costs in the amount of $47,716.38. (Doc. 40). Cargill asserts that it is entitled to recover
this amount because the Purchase Terms of Purchase Contract PORA-G0-29473 provided for the
recovery of these fees in connection with disagreements or disputes between the parties arising
out of any contract between the buyer and the seller.1 Cargill contends that it is entitled not only
to the fees associated with the current litigation, but also to the fees associated with the previous
civil action filed in this Court before the late Judge Polozola, as well as the NGFA arbitration
cases, because they are “inextricably intertwined and necessary precursors to the instant action.”
(Doc. 40-1 at 5).
Under Louisiana law, attorney fees are only permissible “where authorized by statute or
contract.” State, Department of Transportation and Development v. Williamson, 597 So.2d 439,
441 (La. 1992). Here, because the Purchase Terms of Purchase contract PORA-G0-29473 does
authorize attorney fees, attorney fees are permissible. When considering attorney fees, courts
must assess whether the fees are reasonable. Louisiana courts, in applying the reasonableness
requirement from the Louisiana Rules of Professional Conduct, Rule 1.5(a), consider the
following factors in determining whether the fees are reasonable:
(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.

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The Purchase Terms on the reverse side of Purchase Contract PORA-G0-29473, which was one of the
eleven contracts, provides in Paragraph 1 that “[i]n addition to any damages otherwise provided by law,
Buyer shall be entitled to recovery of its attorney’s fees and costs.” (Doc. 40, Ex. C).
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Id. at 442. The Fifth Circuit utilizes a “lodestar” method to assess and award attorney fees.
Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999).
A lodestar is calculated by multiplying the number of hours
reasonably expended by an appropriate hourly rate in the
community for such work. After making this calculation, the
district court may decrease or enhance the lodestar based on the
relative weights of the twelve factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th
Cir.1974). The lodestar may not be adjusted due to a Johnson
factor, however, if the creation of the lodestar award already took
that factor into account. Such reconsideration is impermissible
double-counting.
Id. (internal citations omitted). The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of
the issues; (3) the skill required to perform the legal services
properly; (4) the preclusion of other employment by the attorney;
(5) the customary fee; (6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or circumstances; (8)
the amount involved and 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; and (12) the award in similar cases
Id. at n.9.
Throughout this litigation, Cargill has been represented by the law firm of Nalley & Dew,
APLC. The Court has reviewed the hourly rates and the time expended by each member of the
firm and finds the requested fee to be reasonable in light of the circumstances surrounding this
litigation. The Court does not find the arguments raised by defense counsel to be persuasive or
have merit.2

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Counsel raises a number of arguments, including a rehashing of previous arguments that this Court has
already rejected. Essentially, counsel asserts that because Cargill obtained default arbitration awards and
was not awarded attorney fees at those times, Cargill should not be permitted to seek attorney fees now.
However, as Cargill points out, the arbitration awards unambiguously stated, “This award is not intended
to preclude the plaintiff from pursuing an additional award for interest, legal fees or costs in a court of
law.” (Doc. 7, Ex. 8 at 4) (Doc. 7, Ex. 9 at 3) and (Doc. 24, Ex. 3 at 3). Thus, this argument has no merit.
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II.
Cargill is entitled to an award of attorney fees in the amount of $42,856.50 and costs in
the amount of $4,859.88.

Signed in Baton Rouge, Louisiana on March 20th, 2013.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

Although counsel strenuously objects to the award of attorney fees, counsel agrees that the hourly rates
were reasonable, but argues that the time expended by Cargill’s counsel is excessive. Counsel arrives at
this conclusion by comparing the amount of hours that he expended in this litigation to the amount of
hours that Cargill’s counsel expended. Counsel suggests to the Court that if the Court chooses to award
attorney fees, it should only award fees in the amount that he would be entitled to receive. This argument
also has no merit.
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