Compania Sud Americana De Vapores S.A. et al v. Global Terminal & Container Services, LLC
OPINION AND ORDER re: 35 MOTION to Enforce Judgment filed by CSAV Agency North America, Compania Sud Americana De Vapores S.A. Accordingly, this Court GRANTS Plaintiff's motion and orders Global to pay CSAV $75,191.68 in attorney's fees and costs. (Signed by Judge Paul A. Crotty on 10/23/2013) (rsh)
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II ,- -~ j':)CALLY FILED
DG,_ !'. _ _ _ _ __ __
UNITED STATES DISTRICT COURT
SOUTHERN DISTRlCT OF NEW YORK
DATE LLED: 10 - 23-t3
COMPANIA SUD AMERICANA DE
VAPORES S.A. and CSA V AGENCY
09 Civ. 7890 (PAC)
OPINION AND ORDER
GLOBAL TERMINAL & CONTAINER
SER VICES, LLC,
HONORABLE PAUL A. CROTTY, United States District Judge:
On July 21, 2010, Compania Sud Americana de Vapores S.A. and CSAV Agency North
America (collectively, "CSAV") filed its First Amended Complaint against Defendant Global
Terminal & Container Services, LLC ("Global") asserting claims for negligence, breach of
contract, and breach of the warranty of workmanlike service, relating to deficient performance of
a stevedoring contract. On March 14, 20 12, this Court denied Global ' s motion for summary
judgment and granted CSA V'S cross motion for summary judgment in the amount of
$424,543.71. Pursuant to the parties' contract, this Court also granted CSA V'S request for costs
and reasonable attorney' s fees. On Aplil 15,2013 , CSAV filed a motion to enforce the judgment
seeking $75,191.68 in attorney's fees.
The Court presumes familiality with the facts , as set forth in Campania Sud Americana
de Vapares S.A. v. Glabal Terminal & Cantainer Services. LLC, No. 09 Civ . 7890,2012 WL
4948128 (S.D .N.Y. Mar. 14, 2012). The grant of summary judgment for CSAV included "costs
and reasonable attorney's fees" pursuant to Section X(2) of the parties' stevedoring agreement.
Jd. at *4. The Clerk's Judgment was entered on March 15,20 12. Declaration of Garth S.
Wolfson ("Wolfson Dec!."), Ex. I.
On March 23, 2012, Global appealed and th e parties entered a Letter of Undertaking
("LOU") , where Global agreed "[i)n the event a final judgment or decree is entered after
defendant's appeal in favor of plamti ff . .. to pay and satisfy $564, 189.51 ... together with the
reasonable costs and attorney's fees of plaintiffs, together with interest thereon." Wolfson Dec!.,
Ex. 2. On May 3,2012, the parties stipulated to stay all proceedings to execute or enforce the
judgment pending the outcome of Global's appeal and to accept the LOU as security for the stay.
Wolfson Dec!. ' 13, Ex. 2. On February 28, 2013, the Second Circuit affirmed this Court's
decision. See Compai;ia Sud Americana de Vapores S.A. v. Global Terminal & Container
Services, LLC, 509 Fed. Appx. 97 (2d Cir. 20(3); Wolfson Decl ., Ex . 3. Global subsequently
agreed to pay CSA V $603,904.11 to cover the judgment and post-judgment interest, but refused
to pay attorney's fees. Wolfson Decl. '16.
On March 28, 2013, the parties appeared for a pre-motion cou rt conference. CSA V's
counsel stated that it would accept less than the full amount of attorney's fees and this Court
encouraged the parties to resolve the di spute. Failing settlement , however, the Court instructed
CSAV to file a motion by April 15. On April 15 ,20 13, CSA V filed a motion to enforce the
judgment as to attorney's fees in the amount of $75, 191 .68 and an invoi ce itemi zing all fees and
disbursements incurred in connection with this litigation . Wolfson D ecl ., Ex. 6. Global's sole
contention in opposition is that CSA V's motion is untimely.
Global's argument must be rejected. Federal Rule of Civil Procedure 54 "governs a case
where attorneys' fees are ancillary relieffor which a party must make a [post-judgment] motion
to the court in order to recover." Hanley v. Herrill Bowling Corp., No. 94 Civ. 4611,1996 WL
79324, at *2 (S.D.N.Y. Feb. 23 , 1996). Rule 54(d)'s time bar does not apply to fees recoverable
as an element of damages pursuant to the terms of a contract. See, e.g., Cumberland Farms, Inc.
Lexica Enters , Inc. , No. 10-cv-4658, 2012 WL 526716, at *10 (E.D.N.Y. Feb. 16,2012);
Hanley, 1996 WL 79324, at *2 ; see also Notes of Advisory Committee on Rules, 1993
Amendment, Fed. R. Civ. P 54(d)(2)(A).
There is a distinction between a decision on liability for attorney's fees and a decision on
the scope of those fees. The jury determines whether a party is owed attorney ' s fees, pursuant to
a contract, and then the judge determines how much is owed. See McGuire v. Russell Miller,
Inc., I F.3d 1306, 1313 (2d Cir. 1993) ("Following common practice, today we make law out of
what was previously common sense: when a contract provides for an award of attorneys ' fees,
the j ury is to decide at trial whether a party may recover such fees; if the jury decides that a party
may recover attorneys' fees, then the judge is to determine a reasonable amount of fees"); see
also Schaefer v. Smigel, No. 1:08 Civ. 6439, 2009 WL 174795, at *3 (Jan. 22, 2009) (,,[T]he law
in this Circuit is clear that, where a contract provides for an award of attorney's fees, the court
rather than the jury determines the amount of that award ."). Accordingly, "the amount of
attorneys' fees, even when awarded under a contract, is a post-judgment matter collateral to a
decision on the merits." McGuire, I F.3d at 1315 1
I Although the Second Circuit dec ided thi s case pri or to th e 1993 Amendments to Rule S4(d), nothing in the text of
(he rule or advi sory notes alters the court's holding. See Notes of Advisory Committee on Rules, 1993 Amendme nt,
Fed. R. Civ. P. S4(d)(2)(A) (explaining Ihat Rule S4(d)(2)(A) does not apply 10 fees "soughl under the terms of a
Here, CSAV sought attorney's fees pursuant to Section X(2) of the stevedoring
agreement, which indemnified CSAV from any expenses that arose from Global's breach of the
Had this case proceeded to trial, the jury would have determined whether CSA V was
entitled to attorney's fees. See Town o(Poughkeepsie, 221 Fed. Appx. at 62. Neither of the
parties disputes thi s conclusion.
Instead, Global argues that CSAV was required to "prov[e) the amount of fees and costs
it seeks as damages during the summary judgment phase of thi s matter" and that its failure to do
so acts as a time bar. Defendant's Memorandum of Law in Opposition to Plaintiffs Motion for
an Amended And/Or Supplemental Judgment for Attorney's Fees and Costs ("Def.'s Opp'n
Br.") at I (emphasis added). In granting summary judgment, this Court determined that there
existed no genuine dispute of material fact that CSAV was entitled to damages, including
reasonable attorney's fees. Comp(lllia Sud Americana de Vapores SA., 2012 WL 4948128 , at
*4. "It would be unfair to deny that award merely because [CSAV] had decided, based on
common practice and with no reason to do otherwise, to wait until after [summary judgment] to
submit proof of the amount of attorney's fees." See McGuire, 1 F.3d at 1315-1316; see also
Malin Inl'l Ship Repair & Drydock, Inc. v. MIV Seim Swordfish, 611 F. Supp. 2d 627, 638 (E.D.
La. 2009) ("It is disingenuous for [Defendant) to attempt to avoid its liability for [Plaintiffs) fees
contrac(. . [because] such damages typIcall y are to be claimed in a pleading and may involve is sues to be resolved
by a jury").
2 Section X(2) pro vides that:
Contractor [Global] shall indenUJify and hold harmless each Carrier [CSAY) .. . from any and all
losses, expenses, damages, demands and ciaims by any pe rso n in connection with or arising o ut of
any . . damage to an y property, vessel, cargo. equipment, or the natural envirorunent , sustained,
as the result of Contractor's breach of this Agreement , negligen ce, fault and/or willful misconduct
.. .. No limitation of liabili ty or limitation of damages that may appear in Contrac tor 's Tennina l
Tariff shall apply TO this provision.
CompmUa Sud Americana de Vap ores S.A., 201 2 WL 4948128, at *3 (quoting February 25,2011 Stipulation, Ex.
A, Section X(2)).
based on a technicality, especially when it was well aware that the fee issu e would be determined
in part at trial and in part by post-trial motion.").
The cases cited by Global in opposition are wholly distinguishable from the present case.
In each case, the moving party did not prove that it was entitled to fees prior to the judgment.
See, e.g. , Lifespan Corp. v. New England Med. Or.. In c., No. 06-cv-421, 20 II WL 3841085, at
*6 (D.R.!. Aug. 26, 2011) ("NEMC had its opportunity under Rule 54 to prove its attorney' s fees
at trial . .. . As a result, NEMC has lost its opportunity to prove its emitlement to attorney's fees,
and none will be awarded" (emphasis added) (internal quotations omitted»; Kraft Foods N. Am ..
Inc. v. Bann er Eng'g & Sales, In c., 446 F. Supp. 2d 551 , 578 (E.D . Va . 2006) ("Kraft had its
opportunity under Rule 54 to prove its attorney's fees at trial, and chose not to do so ....
Consequently, Kraft has lost its opportunity to prove its entitlement to attorney' s fees, and none
will be awarded." (emphasis added»; Pride Hyundai. Illc. v. Chrysler Fin . Co., 355 F. Supp. 2d
600,605-06 (D.R.!. 2005) ("Because the attorneys' fees in this case were in the nature of
damages, [Chrysler] had the burden of proving at trial that it waS contractually entitled to those
fees it sought in its counterclaim." (emphasis added». In contrast, this Court held on summary
judgment that CSAV was entitled to attorney's fees and left the question as to the amount of fees
to post-judgment briefing.
Even if Rule 54(d) applied to post-judgment motions on the scope of attorney's fees, this
Court has the discretion to extend th e time for the moving party. See Fed. R. Civ. P. 54(d)(2)(B)
(requiring that a motion be brought no later than fourteen days after entry of judgment "[u]nless
a statute or court order provides otherwise"). To determine whether a party 's neglect is
excusable, courts consider: (I) the danger of prejudice to the other party, (2) the length of the
delay and its potential impact on the proceedings, (3) the reason for the delay, and (4) whether
the movant acted in good faith. See Tancredi v. Metro . Life Ins. Co. , 378 F.3d 220, 228 (2d CiL
Each of these factors favors a finding of excusable neglect. First, there is simply no
danger of prejudice to Global. Global knew about CSA V'S claim for attorney's fees since
September 14,2009 and-if there was uncertainty- this Court's March 14,2012 judgment
erased any doubt. Second, although the judgment was entered over a year and a half ago, this
delay has little impact on any fee detemlination. CSAV has su bmitted detailed billing records,
see Wolfson Decl., Ex. 6, and Global does not contest the reasonability of those fees. Third, thi s
COUli find s the reasons for CSAV's delay particularly compelling. Global appealed the entry of
judgment within eight days, and the parties subsequently agreed to stay the issue of damages
until after that appea l. See Wolfson Dec/. ~ 3, Ex. 2. CSA V should not be faulted for relying on
this agreement. Furthermore, the Advisory Committee identified an appeal as one reason why a
court may pennit an extension of the time to submit a motion. See Notes ofAdvisory Committee
on Rules, 1993 Amendment, Fed. R. Civ. P. 54(d)(2)(B) ("[T]he court ... may effecti vely extend
the period by permitting claims to be filed after resolution of[an) appeal."). Following the
appeal, this COUli urged CSAV and Global to resolve the dispute and therefore CSAV's
subsequent delay was merely at this Court 's request. Fourth, the circumstances indicate that
CSA V acted in good faith throughout the post-judgment proceedings. In fact, at the March 28,
2013 cOUli conference, CSAV descri bed its offer to co mpromise on the amount so that the issue
could be resolved without motion practice but Global refu sed. Therefore, this Court finds that
CSA V has demonstrated excusable neglect.
Global does not contest the reasonab ility of the amount of fees requested by CSAV.
Upon its own review, this Court finds no reason to doubt the reason abl eness of the fees
requested. Any attorney who applies for attorney's fees "must document the application with
contemporaneous time records ... specify[ing], for each attorney, the date, the hours expended,
and the nature of the work done." N. ys. Ass 'n(or Relarded Children, In c. v. Carey, 711 F.2d
1136, 1148 (2d Cif. 1983). The critical inquiry is "whether, at the time the work was performed,
a reasonable attorney would have engaged in similar time expenditures." Granl v. Marlinez, 973
F.2d 96, 99 (2d Cir. 1992). Here, CSA Y submitted an invoice listing the date, lawyer, hours,
cost, and descliption for all wo rk performed . The highest rate charged was a modest $297.77 an
hour, which is a reasonable hourly rate for a maritime attorney practicing in New York. See
GMD Shipyard Corp. v. Nacirema Env 'I Servo Co. , No. II Civ. 1631, 2012 WL 1890389, at *2
(S.D.N.Y. Mar. 13,2012) (holding that a $300 rate per hour for a maritime attorney practicing in
New York, Boston, and Providence was reasonable). Furthermore, CSAY only billed a total of
241 hours, which included the drafting of two complaints and briefings on a motion to dismiss,
summary judgment, Second Circuit appeal, and the instant motion. As a result, this Court finds
that the hourly rate and number of hours billed are entirely reasonable under the circumstances.
Accordingly, this Court GRANTS Plaintiff's motion and orders Global to pay CSAY
$75,191.68 in attorney's fees and costs.
Dated : New York, New York
PAUL A CROTTY
United States District Judge
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