Pure Air Daigle L L C et al v. Stagg, II et al
MEMORANDUM RULING re 71 MOTION To Tax Costs and Award Attorneys' Fees filed by Pure Air U S L L C, Pure Air Daigle L L C. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained herein, the motion is denied. Signed by Magistrate Judge Patrick J Hanna on 9/7/2017. (crt,Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
PURE AIR DAIGLE, LLC, ET AL.
CIVIL ACTION NO. 6:16-cv-01322
MAGISTRATE JUDGE HANNA
CHARLES STAGG, II, ET AL.
BY CONSENT OF THE PARTIES
Currently pending is the motion to tax costs and award attorneys’ fees (Rec.
Doc. 71), which was filed by the plaintiffs, Pure Air Daigle, L.L.C. and Pure Air
[US], LLC. The motion is opposed. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained below, the motion is
Defendants Stagg, Lanclos, Courville, and Guidry (“the Employee
Defendants”) were all formerly employed by Daigle Welding Supply. The plaintiffs,
Pure Air Daigle, L.L.C., and Pure Air [US], LLC, are the successors of that company.
Defendant Capitol Welders Supply Co. Inc. was a long-time supplier of the plaintiffs.
In 2016, Capitol Welders formed defendant St. Landry Gas & Supply, L.L.C., which
is a competitor of the plaintiffs. The Employee Defendants left their employment
with the plaintiffs and all of them went to work for St. Landry Gas.
In their complaint, the plaintiffs asserted claims against the defendants for
breach of contract, violation of the Louisiana Unfair Trade Practices and Consumer
Protection Law, breach of fiduciary duties, conversion, conspiracy, tortious
interference with contractual relationships, and tortious interference with business
The plaintiffs’ complaint indicates that, in addition to seeking
damages, the plaintiffs were also seeking a temporary restraining order, and
preliminary and permanent injunctions.
On the same day that they filed the
complaint, the plaintiffs also filed a motion for temporary restraining order and a
motion for preliminary injunction. An evidentiary hearing was held on December 6,
2016 through December 9, 2016. On January 11, 2017, this Court issued its findings
of fact and conclusions of law with regard to that motion. (Rec. Doc. 49). The
plaintiffs now seek to recover costs under Fed. R. Civ. P. 54 and to recover attorneys’
fees under the Louisiana Unfair Trade Practices and Consumer Protection Law
(“LUTPA”), La. R.S. 51:1405 et seq., arguing that this Court’s having granted the
motion for preliminary injunction in part entitles them to the recovery of costs and
LAW AND ANALYSIS
THE APPLICABLE STANDARD FOR AWARDING COSTS
The plaintiffs seek to recover costs under Rule 54 of the Federal Rules of Civil
Procedure, and they seek to recover attorneys’ fees under LUTPA. Rule 54(d) states
that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs
– other than attorney's fees – should be allowed to the prevailing party.” The costs
that may be awarded are listed in 28 U.S.C. § 1920.1 “[A] district court may decline
to award the costs listed in the statute but may not award costs omitted from the list.2
There is a strong presumption that costs should be awarded to prevailing parties.3
Nevertheless, Rule 54(d) permits a district court to exercise its discretion and refuse
to award costs to a prevailing party.4 In fact, “[i]t is well established that the district
court enjoys discretion in determining who shall bear the costs of litigation and how
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987); Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1994); Tyler v.
Union Oil Co. of California, 304 F.3d 379, 404-05 n. 16 (5th Cir. 2002).
Coats v. Penrod Drilling Corp., 5 F.3d at 891.
Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992); Sheets
v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 539 (5th Cir. 1990).
Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d at 539; Schwarz v. Folloder, 767
F.2d 125, 131-32 (5th Cir. 1985).
much of the costs shall be apportioned to a taxed party.”5
circumstances, the district court may even tax costs against the prevailing party as a
sanction.6 When costs are not awarded to the prevailing party, the district court is
required to provide justification for its actions.7
ARE THE PLAINTIFFS PREVAILING PARTIES?
In order to recover costs under Rule 54(d), the plaintiffs must be prevailing
parties. Identifying the prevailing party is central to determining whether costs
should be awarded to one party or another. Noted commentators have stated that “[a]
determination of who is the prevailing party for purposes of awarding costs should
not depend on the position of the parties at each stage of the litigation but should be
made when the controversy is finally decided.”8 In the context of a claim for
attorneys’ fees in a Section 1988 claim, the Fifth Circuit has held that a prevailing
party is one who prevails at the time of final judgment, not the party who has
Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716, 722-23 (5th Cir. 1978). See, also,
Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 216-17 (5th Cir. 1991).
Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d at 539.
Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d at 539; Breeland v. Hide-A-Way
Lake, Inc., 585 F.2d at 722-23.
Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 270 F.R.D. 262, 266
(W.D. La. 2010) (quoting 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure, § 2667 (3d. Ed. 2007)).
prevailed in a “single round.”9 Therefore, there is authority for the proposition that
a party is not entitled to fees under Rule 54(d)(1) by merely prevailing at one stage
of litigation without ultimately prevailing in the case. As one court in the Western
District of Louisiana said, “[u]ntil a final judgment, there can be no prevailing
However, there also is countervailing authority. The United States Supreme
Court has laid out the requirements for establishing prevailing party status in the
context of the fee-shifting federal statutes employing the legal term of art “prevailing
party.”11 Under the Supreme Court’s test, a plaintiff need not receive a final judgment
in its favor, but if the plaintiff's success on a claim is purely technical or de minimis,
it is not a prevailing party.12 Thus, some courts have noted that “[a] party who has
obtained some relief usually will be regarded as the prevailing party, even if the party
does not prevail on all claims.”13
Rodriguez v. Handy, 873 F.2d 814, 817 (5th Cir.1989).
Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 270 F.R.D. at 266.
Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human
Resources, 532 U.S. 598 (2001).
Petteway v. Henry, 738 F.3d 132, 137 (5th Cir. 2013) (citing Jenevein v. Willing, 605
F.3d 268, 271 (5th Cir. 2010)).
Island Operating Co., Inc. v. Jewell, No. 6:16-cv-00145, 2017 WL 924205, at *2
(W.D. La. Mar. 6, 2017) (citing United States v. Mitchell, 580 F.2d 789, 793 (5th Cir. 1978),
superseded by statute on other grounds, 42 U.S.C. § 3614).
The plaintiffs argue that they are prevailing parties entitled to costs because
their motion for injunctive relief was granted in part. The defendants argue to the
contrary that the plaintiffs are not prevailing parties because the relief they received
in this Court’s ruling on the motion for injunctive relief was de minimis since the
plaintiffs “requested a preliminary injunction on eight legal theories. . . [but] [f]or
seven of the eight claims, this Court found a preliminary injunction was not warranted
or supported by the evidence presented.” (Rec. Doc. 82 at 9-10).
This Court agrees with the defendants’ reasoning. The ruling on the plaintiffs’
motion for injunctive relief was issued at an early stage of the litigation, was not a
ruling on the merits of any of the plaintiffs’ claims, and afforded only de minimis
relief to the plaintiffs. For these reasons, this Court finds that the plaintiffs do not
qualify as prevailing parties. Accordingly, this Court finds that the plaintiffs are not
entitled to recover costs under Rule 54(d).
Furthermore, even if the plaintiffs did qualify as prevailing parties, this Court
would exercise its discretion and deny the plaintiffs’ motion for costs under Rule
54(d) for two reasons. First, this Court believes that the better course of action is to
wait until a judgment on the merits of the case has been reached before costs are
awarded. Second, this Court has found that the relief afforded by this Court’s ruling
on the motion for injunctive relief was de minimis in nature and therefore does not
justify deviation from the preferred course of action.
WAS THE PLAINTIFFS’ MOTION TIMELY?
The defendants argue that the plaintiffs’ motion should be denied as untimely.
Having already found that the plaintiffs are not prevailing parties and consequently
are not entitled to recover costs at this time, this Court will not address this argument
except to note that “Rule 54(d) sets out no specific time limit for filing a bill of costs,
effectively allowing a party to wait until after appeal.”14 Thus, once a judgment has
been issued in this case, the plaintiffs may file an application to have costs taxed in
accordance with the procedure set forth in Local Rule 54.3 if they are prevailing
parties at that time.
THE DEFENDANTS OBJECTIONS TO THE PLAINTIFFS’ CLAIMED COSTS
The defendants objected to certain of the costs claimed by the plaintiffs.
Having found that the plaintiffs are not entitled to recover costs at this time, this
Court will not address the defendants’ objections.
Morris v. V4V1 Vehicles for Veterans, No. 4:15-CV-724, 2017 WL 3034664, at *2
(E.D. Tex. July 18, 2017) (quoting Power–One, Inc. v. Artesyn Techs., Inc., No. 2:05cv463, 2008
WL 4065871, at *2 (E.D. Tex. Aug. 27, 2008) (citing White v. N.H. Dep't of Emp't Sec., 455 U.S.
445, 454 n.17 (1982) (noting that Rule 54(d) specifies no time barrier for motions for costs))).
THE PLAINTIFFS’ CLAIM FOR ATTORNEYS’ FEES
The plaintiffs claim that they are entitled to recover under LUTPA the
attorneys’ fees they incurred in bringing their motion for injunctive relief. LUTPA
prohibits unfair methods of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce.15 The statute expressly states that “[i]n the
event that damages are awarded under this Section, the court shall award to the
person bringing such action reasonable attorney fees and costs.”16 The Louisiana
Supreme Court has made it clear that “[t]he starting point in the interpretation of any
statute is the language of the statute itself. When a law is clear and unambiguous and
its application does not lead to absurd consequences, the law shall be applied as
written and no further interpretation may be made in search of the intent of the
legislature.”17 LUTPA is clearly written. Attorneys’ fees may be recovered only if
damages have been awarded.18 In this case, no damages have been awarded in
La. R.S. 51:1405.
La. R.S. 51:1409(A).
M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 07/01/08), 998 So.2d 16, 2627, amended on reh'g (09/19/08) (internal citations and quotation marks omitted) (quoting Louisiana
Civil Code Article 9).
Faris v. Model's Guild, 297 So.2d 536, 540 (La. App. 4 Cir. 1974) (“Since plaintiff
is not entitled to damages she also has no claim to attorney's fees.”).
connection with the plaintiffs’ LUTPA claim. Therefore, there is no basis on which
the plaintiffs may be awarded attorneys’ fees under that statute at this time.
For the reasons set forth above, this Court finds: (1) the plaintiffs are not
prevailing parties and consequently are not entitled to recover costs under Fed. R.
Civ. P. 54(d); (2) even if the plaintiffs were prevailing parties, this Court would
exercise its discretion and deny the plaintiffs’ motion for costs under Fed. R. Civ. P.
54(d); and (3) the plaintiffs have not been awarded damages under LUTPA and
consequently are not entitled to recover attorneys’ fees under that statute.
IT IS ORDERED that the plaintiffs’ motion to tax costs and award attorneys’
fees (Rec. Doc. 71) is DENIED.
Signed at Lafayette, Louisiana on this 7th day of September 2017.
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
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