Petition for Writ of Certiorari — L. K. Comstock & Co. v. Louisiana Power & Light Co.
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our, Vee
FILAD
95 24 wus 195
NO. OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
LOUISIANA POWER & LIGHT COMPANY
VERSUS
L.K. COMSTOCK & COMPANY, INC., ET AL.
Petitioners
PETITION FOR WRIT OF CERTIORARI FROM THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
MURTAGH, COHEN & BYRNE
Joel B. Cutler
1100 Franklin Street, Suite 303
Garden City, New York 11530
Telephone: (516) 747-1000
BRONFIN & HELLER
Robert A. Kutcher
Counsel of Record
Ashley L. Belleau
Nicole S. Tygier
Suite 2500, Poydras Center
650 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504) 568-1888
Co-Counsel for Petitioners, L.K.Comstock
& Company, Inc. and LKC, Inc.
QUESTIONS PRESENTED
I. WHETHER the Court of Appeals for the Fifth Circuit erred in
affirming the district court’s denial of Petitioners’ Motion to Amend
Judgment to enforce a Federal Rules of Civil Procedure, Rule 68 Offer of
Judgment in a multi-party antitrust litigation where the Plaintiff was
successful, recovering treble damages, attorneys’ fees and costs, but did
not prevail against the offering defendants.
II. WHETHER attorneys’ fees are recoverable as an element of costs
under a Rule 68 Offer of Judgment in an antitrust action.
Ill. | WHETHER Petitioner’s Rule 68 Offer of Judgment, served
fourteen (14) calendar days prior to the commencement of trial, was timely.
LIST OF PARTIES
In accordance with Supreme Court Rule 29.1, Petitioners submit
the following list of all parties to the proceeding in the United States
Court of Appeals for the Fifth Circuit, whose judgment is sought to be
reviewed. The parties are:
List of Petiti
l. L.K. Comstock & Company, Inc.
y LKC, Inc.
List of All Other Parti
3 Louisiana Power & Light Company
4. Fischbach and sii Inc.
5 Fischbach Corporation
6 Francis S. Kellstrom
7; The Howard P. Foley Company
8. Commonwealth Electric Company
I a hat HT Os a Sohne’: Melt SNe 2
TABLE OF CONTENTS
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NE OE * 0 55cC eas siveovedatuesehis tenstdssdbesteimeyeaauieeincldinneed |
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STATUTORY PROVISIONS INVOLVED ..................ccccceeeeeeeeees 2
ee EB UEEE BOPRTIES cpnccusdgvaverccovavavcsnsecsensysovsoncsconnesi 3
REASONS FOR GRANTING THE PETITION ....0......escssssssessseeeeeeeees 6
I. RULE 68 COSTS RECOVERABLE BY PREVAILING
DEFENDANTS FROM THE PLAINTIFF WHO
OBTAINS A JUDGMENT AGAINST CO-
nce Ac ccicacossthcerscaccessereaes 10
II. RULE 68 REQUIRES THE PLAINTIFF TO PAY THE
COSTS OF LITIGATION, INCLUDING
ATTORNEYS’ FEES, OF PREVAILING
a sacceenadimmnns 15
Ill. COMSTOCK’S OFFER OF JUDGMENT, DATED JULY 22,
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APPENDIX A
Judgment of the Fifth Circuit
Court of Appeals
Sn sbediicisquanepieasasinedbinnne A-1
APPENDIX B
Offer of Judgment
RESETS ES IC NEE RT B-1
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APPENDIX C
Jury Verdict,
dated September 24, 1992 ........:scscsssssessssssseessesesenensnsnenenseensneneeess C-1
APPENDIX D
Judgment of the Eastern District of Louisiana,
Judge Marcel Livaudais, Jr.
dated September 25, 1992 .........sccscssssesssssenssnneessesssreseneesenesesesens D-1
APPENDIX E
Rulings on Motions of the
Eastern District of Louisiana
Judge Marcel Livaudais, Jr.
dated November 5, 1992 ...........csccccccccsssssscssccccscccerecesssssssressessoess E-1
iv
CASES
Cf Cover v. Chicago Eye Shield Co.,
136 F.2d 374 (7th Cir.), cert. denied,
320 U.S.749, 64 S.Ct. 53, 88 L.Ed. 445 (1943) one 21
Crossman v. Marcoccio,
806 F.2d 329, 332 (1st Cir. 1986),
FF es ET Biite. BUNCITNIIED ceiicccccnsccssosecincecsiviccsnsssavencaties 10
Delta Airlines v. August,
450 U.S. 346, 352, 101 S.Ct. 1146,
ey OF Re AT CEPOL) wtiiecdkiilariidictaresvenis 6-9, 11, 12-15
Dual v. Cleland,
Fe es ME CRIP, RTOS iisheeshetasennseipininsontnnnssoitindeiinncs 10
Gay v. Waiters’ and Dairy Lunchmen’s Union, Local 30,
ee ee Ue CII, BPMN vaicinincceszddenniasincearsadaivebuces 10
Greenwood v. Stevenson,
ee, he BPD s<ctatthipensavesanasccaveevssdsnnns 9, 20, 21
Johnston v. Penrod Drilling Co.,
Be Fe Og WP CIE Gite A FUOD cscaccocscsssessssnscacassscsessacccpssapanees 9
| Marekv. Chesney,
473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1(1985) ................ 16-18
Nabors v. Texas Co.,
FR AE REIN FITTED pcs cents rencecncssnessenersscivenipensereainanel 9
Polk v. Montgomery County, Maryland,
De ies ek Mee CES I ies cakes cindancsinssinssogeicdingsctoprensatnh 19
Rickards v. Canine Eye Registration Foundation, Inc.,
783 F.2d 1329, 1334-35 (9th Cir. 1986), cert. denied,
A tn EE icra Sikh eis hase adinttaaeiabaxedntgncssmriebioneninns 18
Staffend D. v. Lake Central Airlines, Inc.,
47 F.R.D. 218, 219-20 (N.D.Ohio 1969) ..............cssescccssssreeesees 11
ibe anes ene ctor Sig Be A on
Vv
STATUTES AND RULES
Attorney’s Fees Awards Act of 1976,
B2 UBC. BIGCB .nerisccccecvecrccrcssoyorcororcerencencecsoveseesesseovessssasenenens 16
Clayton Antitrust Act,
15 U.S.C. $1 68 806. ....00c0cesccccrccccscccrecccnceccsesvesseessessensones 3, 17, 18
Federal Rules of Civili Procedure,
BRO CIGD ocncrerccrececcnsesstupoocnscseqesesocnseceneteanesetecsbonets 2, 7, 18-20, 23
Federal Rules of Civil Procedure,
Rude SACR) ...cecrscevecesserrecovasoscesesecsneonsecscpeniensuaconessingeseaseeens 3, 7, 12
Federal Rules of Civil Procedure,
MS 27. canasaaadenmeaesaiinaaaia 2, 4-23
Webster's New International Dictionary, 2nd Ed., unabridged, 1947 ..22
vi
Fe PCB a Whit tae Mert Ci ity 0
NO.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
PETITION FOR WRIT OF CERTIORARI FROM
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
The Petitioners, L.K. Comstock & Company, Inc. and LKC,
Inc., respectfully pray that a writ for certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the Fifth Circuit
entered April 10, 1995.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fifth
Circuit is reported at 50 F.3d 319. (Appendix A). The opinion of the
Eastern District of Louisiana is not reported. (Appendix B).
JURISDICTION
The judgment of the United States Court of Appeals for the
Fifth Circuit was entered on April 10, 1995. No Petition for Rehearing
was filed. The jurisdiction of the Honorable Court is invoked under 28
U.S.C. §1254 (1).
STATUTORY PROVISIONS INVOLVED
l. Rule 68 of the Federal Rules of Civil Procedure
provides:
At any time more than ten days before the trial begins,
a party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against him for
the money or property or to the effect specified in his offer,
with costs then accrued. If within 10 days after the service of
the offer of judgment the adverse party serves written notice
that the offer is accepted, either party may then file the offer
and the notice of acceptance together with proof of service
thereof and thereupon the clerk shall enter judgment. An offer
not accepted shall be deemed withdrawn and evidence thereof
is not admissible except in a proceeding to determine costs. If
the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree must pay the costs incurred
after the making of the offer. . . .
2. Rule 6(a) of the Federal Rules of Civil Procedure
provides in part:
Computation. In computing any period of time
prescribed or allowed by these rules, by the local rules of any
district court, by order of the court, or by any applicable statute,
the day of the act, event or default from which the designated
period of time begins to run shall not be included. The last
day of the period shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, or, when the act to be done is the
filing of a paper in court, a day upon which the weather
conditions has made the office of the clerk of court inaccessible,
in which event the period runs until the end of the next day
which is not one of the aforementioned days. When the period
of time prescribed or allowed is less than eleven (11) days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.
3. Attorney’s Fees Awards Act of 1976, 42 U.S.C.
§1988(b) provides:
— Se eee eee ee ee OE PE BG ERIE LEE,
provides:
In any action or proceeding to enforce any provision
of sections 1981, 1981la, 1982, 1983, 1985, and 1986 of this
title, title IX of the Public Law 92-318 [20 U.S.C.A. § 1681 et
seq.], the Religious Freedom Restoration Act of 1993 [42
U.S.C.A. § 2000bb et seq.], Title VI of the Civil Rights Act of
1964 {42 U.S.C.A. § 2000d et seq.], or section 13981 of this
title,, the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as
part of the costs.
4. Clayton Antitrust Act, 15 U.S.C.A. § 15 provides:
Any person who shall be injured in his business or
property by reason of anything forbidden in the antitrust laws
may sue therefor in the district court of the United States in
the district in which the defendant resides or is found or has
an agent, without respect to the amount in controversy, and
shall recover threefold the damages by him sustained, and the
cost of the suit, including a reasonable attorney’s fee.
5. Federal Rules of Civil Procedure, Rule 54(a)
(a) Definition; Form. “Judgment” as used in these
rules includes a decree and any order from which an appeal
lies. A judgment shall not contain a recital of pleadings, the
report of a master, or the record of prior proceedings.
STATEMENT OF THE CASE
On February 7, 1986, the plaintiff, Louisiana Power & Light
Company (“LP&L”), filed txts antitrust and RICO action against multiple
defendants, including the Petitioners, L.K. Comstock & Company, Inc.
and LKC, Inc. (“Comstock” or “Petitioners”), alleging that the electrical
contractors who bid on the Waterford 3 Nuclear Power Plant eiectrical
contract colluded and rigged the bids submitted in 1976 and 1977.
Jurisdidiction in the United States District Court for the Eastern District
ee
of Louisiana was pursuant to 28 U.S.C. § 1331, Federal Question.
On July 22, 1992, Comstock served a timely Offer of Judgment
on LP&L pursuant to Rule 68 of the Federal Rules of Civil Procedure.
(See Offer of Judgment, entry of 7/22/92, Appendix “B”). LP&L failed
to respond to the Offer of Judgment.
Jury selection of this complex anti-trust litigation commenced
on Monday, August 3, 1992. The actual trial of this matter began with
Opening Statements on Wednesday, August 5, 1992. After seven weeks
of trial, the jury returned its verdict and found the co-defendants, Fischbach
& Moore, Inc., Fischbach Corporation, Commonwealth Electric Co., The
Howard P. Foley Co., and Francis S. Kellstrom liable in the amount of
$500,000.00, which was trebled by the district court pursuant to the Clayton
Antitrust Act, 15 U.S.C. §1 et seg. However, Comstock was found by
the jury not to have committed any anti-trust or RICO violations.
(See Jury Verdict, dated September 24, 1992, Appendix “C”’). Accordingly,
on September 25, 1992, the district court entered Judgment in favor of
LP&L and against co-defendants, Fischbach & Moore, Inc., Fischbach
Corporation, Commonwealth Electric Co., The Howard P. Foley Co., and
Francis S. Kellstrom, and in favor of Petitioners, dismissing LP&L’s
complaint against Comstock at LP&L’s cost.' (See Judgment, dated
' The Judgment also dismissed Plaintiff's claims against co-defendants
Commonwealth Companies, Inc., John D. Keys, Lewis Z. Eastham, J.R. Sturgill and
Paul D. Murphy.
9/25/92, Appendix “D”). As that Judgment awarded $1.5 million in
damages plus attorneys’ fees and costs, it can hardly be described as a
“take nothing” judgment.’
Petitioners moved to amend the district court’s Judgment to
enforce Petitioners’ Offer of Judgment made and served on LP&L under
Federal Rules of Civil Procedure, Rule 68.
On November 5, 1992, the district court entered its ruling on
five post-trial motions filed by various parties, including Petiticners’
Motion to Amend Judgment. (See Rulings on Motions, entered 1 1/5/92,
Appendix “E”). The district court, in its order, denied Comstock’s Motion
to Amend Judgment on two grounds: (1) the Offer of Judgment was not
timely, and (2) Rule 68 is not applicable to defendants who obtain judgment
in their favor. (Id.).
On November 12, 1993, and again on December 14, 1993,
Comstock filed a Notice of Appeal to the United States Court of Appeals
for the Fifth Circuit (“Fifth Circuit”) appealing the order of the district
court denying Comstock’s Motion to Amend the Judgment awarding costs,
including reasonable attorneys’ fees, pursuant to Rule 68.
The Fifth Circuit entered Judgment on April 10, 1995,
? In addition to the $1.5 million awarded to LP&L, LP&L was awarded
$4, 182,893.72, with interest thereon from September 25, 1992, in costs and attorneys’
fees from the defendants cast in judgment. This award was appealed by defendants,
Fischbach & Moore, Inc., Fischbach Corporation, and Francis S. Kellstrom, who were
cast in judgment. On April 10, 1995, the Fifth Circuit modified that award to the amount
of $4,136,478.74.
determining that Petitioners’ Rule 68 Offer of Judgment did not provide a
basis for recovery because Plaintiff had not prevailed on its claims against
Comstock, although it did prevail against the remaining defendants. (See
Judgment, dated April 10, 1995, Appendix “A”) The court also determined
that its judgment rendered moot the issue of timeliness of the Offer of
Judgment and did not address the issue of whether in an antitrust action,
attorney’s fees are recoverable under Rule 68, including the scope of costs
recoverable under a Rule 68 offer of judgment.
The Petitioners seek a Writ of Certiorari of the April 10, 1995
Judgment of the Fifth Circuit affirming the district court’s denial of
Comstock’s Motion to Amend Judgment to include Rule 68 attorneys’
fees and costs. While Plaintiff did not prevail on its claims against
Comstock, the Plaintiff was victorious against the Petitioners’ co-
defendants. As such, the Plaintiff did not “take nothing”, and should be
required to reimburse Petitioners out of the spoils of its victory for the
fees and costs incurred following their Offer of Judgment.
REASONS FOR GRANTING THE PETITION
The primary issue presented is the proper interpretation of Rule
68 and the effect of the Court’s holding in Delta Air Lines, Inc. v. August,
450 U.S. 346, 67 L.Ed.2d 287, 191 S.Ct. 1146 (1981), on Rule 68’s
application to the facts of this case, where the Plaintiff was successfu’
recovering treble damages, attorneys’ fees and costs, but did not prevail
against the Petitioners, the offering defendants. Petitioners also seek a
determination of the proper computation of the time for serving an offer
of judgment under Rules 68 and 6(a), as well as the scope of costs
recoverable under Rule 68 in an antitrust action.
There are three possible interpretations of Rule 68 and Delta
and under each it is clear that the Offer of Judgment made by the Petitioners
is enforceable. If, as Chief Justice Rehnquist stated in his dissent, the
Court in Delta erred by reading into the statute “victory” as an additional
prerequisite to enforceability, then, under the “plain reading” of Rule 68
all that is required for an enforceable offer of judgment is that a plaintiff
obtain a judgment as defined under Rule 54 and that judgment be less
favorable than the offer. Both prerequisites were met in this case when
the Plaintiff obtained a judgment against the Petitioners’ co-defendants
“from which an appeal lies”, and the Plaintiff, while awarded treble
damages, attorneys’ fees and costs against the other defendants, recovered
nothing from the Petitioners. As the Plaintiff's recovery against the
Petitioners was less favorable than Petitioners’ Offer of Judgment, the
denial of the Motion to Amend to award costs from the date of the offer
was improper.
Even assuming that the Court was correct when it read into
Rule 68 a requirement that the plaintiff be victorious, then the Fifth Circuit
erred when, in light of LP&L’s $1.5 million judgment against Petitioners’
co-defendants, it refused to treat LP&L as victorious for the Petitioners’
Offer of Judgment.
Regardless of the validity of the Delta ruling or the correctness
of the dissent, Petitioners submit that Delta is inapplicable because this
case presents an issue of first impression which should be resolved by
this Court. Delta, and every reported case which has addressed Rule 68,
has involved only one defendant or a joint offer by all co-defendants.
This case involves one plaintiff and multiple defendants where the
plaintiff obtained a favorable judgment against some co-defendants but
not the offering defendants. Such a fact situation has not been, but should
be addressed by this Court. Given the prevalence of complex litigations
in today’s society, guidance is needed as to the proper application of Rule
68 in a multi-party action.
Under Federal Rules of Civil Procedure, Rule 68, a defendant
can, more than ten days before trial, offer a plaintiff to allow a judgment
to be take against the defendant for a specified amount of money or
property. However, if the plaintiff refuses the offer and later wins at trial
but recovers an amount less than set forth in the offer of judgment, plaintiff
must reimburse the defendant the costs incurred since the service of the
offer of judgment.
Rule 68 provides in relevant part:
At any time more than ten days before
the trial begins, a party defending against a claim may
BN ET ne ae Oe Re eT eee eee paid 3:
_ yah ee PS
serve upon the adverse party an offer to allow
judgment to be taken against him for the money or
property or to the effect specified in his offer, with
costs then accrued. . . . If the judgment finally obtained
by the offeree is not more favorable than the offer, the
offeree must pay the costs incurred after the making
of the offer... .
Fed.R.Civ.P. 68 [emphasis added].
The purpose of Rule 68 is to encourage settlement of litigation,
thereby avoiding the expense to the parties and the courts of protracted
litigation, and to protect a party who offers judgment from liability for
subsequently accrued costs. Greenwood v. Stevenson, 88 F.R.D. 225,
228 (D.R.I. 1980). See also Nabors v. Texas Co., 32 F.Supp. 91 (W.D.La.
1940); Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct.
1146, 1150, 67 L.Ed.2d 287 (1981).
The language of Rule 68 is mandatory; where the Rule operates
it leaves no room for district court discretion. See Delta, 450 U.S. at 355-
56, 101 S.Ct. at 1151-52; Johnston v. Penrod Drilling Co. , 803 F.2d 867,
869 (Sth Cir. 1986). The Rule provides a plaintiff with an additional
incentive to settle a case by creating the possibility that the plaintiff will
“lose some of the benefits of victory if its recovery is less than the offer.”
Delta, 450 U.S. at 352, 101 S.Ct. at 1150. Further, the Rule stresses that
the offeree must pay the costs incurred, thus suggesting an affirmative
action. Reading Rule 68 to require the payment of defendants’ post-offer
costs enhances both defendants’ incentive to extend Rule 68 offers of
judgment and plaintiffs’ incentive to accept such offers. Crossman v.
Marcoccio, 806 F.2d 329, 332 (1st Cir. 1986). cert. denied, 481 U.S.
1029, 95 L. Ed. 2d 527, 107 S. Ct. 1955 (1987).
The provision in the Rule which imposes costs upon a party
who refuses an offer of judgment and who later recovers, “puts teeth in
the Rule and makes it effective by encouraging acceptance.” Staffend D.
v. Lake Central Airlines, Inc., 47 F.R.D. 218, 219-20 (N.D.Ohio 1969).
In other words, Rule 68 obligates plaintiffs to pay defendants’ post-offer
costs after rejecting an offer more favorable than the judgment eventually
obtained. In Gay v. Waiters’ and Dairy Lunchmen’s Union, 86 F.R.D.
500, 502 (N.D.Cal. 1980), the court held that a plaintiff who rejects an
offer of judgment “assum{es] the risk that the outcome of the case will be
less favorable than the offer, on pain of having to pay the cost subsequently
incurred by the offerer.” See also Dual v. Cleland, 79 F.R.D. 696, 697
(D.D.C. 1978). Such was the risk assumed by LP&L when it rejected
Petitioners’ Offer of Judgment. Failure to enforce the Offer of Judgment
in this case takes the teeth out of Rule 68 in a multi-party litigation where
the Rule would provide an added mechanism for streamlining litigation
and reducing expenses of the parties and the trial court.
I. RULE 68 COSTS RECOVERABLE BY
PREVAILING DEFENDANTS FROM THE
PLAINTIFF WHO OBTAINS JUDGMENT
AGAINST CO-DEFENDANTS
Regardless of the interpretation of Rule 68 and the application
10
Fea ee ee ee ae i ile
of the ruling in Delta, the Offer of Judgment made by the Petitioners is
enforceable, and the Appellate Court’s refusal to overturn the district
court’s denial of the Petitioners’ Motion to Amend Judgment to enforce
their Offer of Judgment was an error.
In Delta, this Court read into the plain language of Rule 68 a
requirement that the plaintiff be victorious, opining that the nonsettling
plaintiff should not run “the risk of suffering additional burdens that do
not ordinarily attend a defeat.” Delta, 450 U.S. at 352. Such condition
does not exist in Rule 68 as written and the Petitioners submit that Rule
68 applies equally in the situation where the plaintiff “takes nothing” and
where the plaintiff is victorious but recovers less than set forth in the
offer of judgment.
In reaching its determination that a Rule 68 offer only applies
in a situation where a plaintiff obtains a judgment in its favor, the Supreme
Court reasoned that where a successful plaintiff “rejects a Rule 68
settlement offer, he will lose some of the benefits of victory if his recovery
is less than the offer.” Delta, 450 U.S. at 352. The ruling in Delta ignores
the true meaning of the term “judgment” in the Federal Rules of Civil
Procedure, and instead equates the word “judgment” in Rule 68 only with
a victory. Rule 68 provides that, “[i]f the judgment finally obtained by
the offeree is not more favorable than the offer, the offeree must pay the
costs incurred after the making of the offer . . .” (emphasis added). Federal
1]
Rules of Civil Procedure 54(a) provides:
“Judgment” as used in these rules includes a decree
and any order from which an appeal lies. . . .
The Delta court’s limitation cannot be found in the plain language of
either Rules 54 or 68, and the Court erred when it improperly distinguished
between the plaintiff who “takes nothing” and the plaintiff who recovers
less than the offer of judgment.
Even assuming that the Court was correct in adding this
condition to Rule 68, the District Court erred when it refused to treat
LP&L asa victorious plaintiff. Assuming the added requirement of victory,
Petitioners should not be précluded from recovery. The Plaintiff obtained
a favorable judgment; LP&L was awarded $1.5 million in damages plus
attorneys’ fees and costs totaling more than $4 million against Petitioners’
liable co-defendants. Under any circumstance that is a “victorious
judgment” and the Petitioners’ Offer of Judgment should have been
enforced.
Regardless of the validity of the Delta ruling, the issue arises
as to whether Delta is even applicable to this case. Delta specifically
addressed an action between a single plaintiff and a single defendant
where the defendant was the successful litigant and the plaintiff received
$-0-. However, this is not a case where a single plaintiff has lost to a
single defendant. Rather, LP&L was successful in this action - - it was
12
not defeated, obtaining a $1,500,000.00 judgment plus attorneys’ fees
and costs against co-defendants, Fischbach & Moore, Inc., Fischbach
Corporation, Commonwealth Electric Co., The Howard P. Foley Co. and
Francis Kellstrom. While LP&L did not obtain a judgment against the
Petitioners, LP&L did obtain a judgment in this action. This Court’s
primary concern in Delta was the additional burden Rule 68 would place
on the plaintiff who recovered nothing. Delta, 450 U.S. at 352, 67 L.Ed.2d
at 293. The Court did not want the nonsettling plaintiff to run the risk of
suffering additional burdens that do not ordinarily attend an outright defeat
as such risk might discourage future plaintiffs from filing suit. This
consideration is not present here. LP&L was victorious. LP&L should
be made to pay the Petitioners’ costs, including attorneys’ fees, from the
spoils of its victory against the co-defendants.
A failure by this court to enforce the Offer of Judgment in this
case will emasculate the rule in the context of complex multiparty
litigations, precisely the type of action which would benefit from the
operation of the rule. Ifa plaintiff knows that he must only succeed against
one of several defendants in order to escape Rule 68 liability to any other
defendant, there is no incentive for him to accept an offer of judgment
and streamline litigation. Likewise, it is unfair to a multiparty defendant
to eliminate the possibility of shortening litigation and controlling liability
by requiring him to persuade all of his co-defendants to join in the offer
13
of judgment for it to have any force. Such a defendant could be denied its
rights under Rule 68 by a co-defendant who refuses to allow a judgment
to be taken against him. The Fifth Circuit opinion negates the viability of
Rule 68 in any multiparty litigation.
[Now Chief] Justice Rehnquist recognized the problems
created by the Court in his dissent in the Delta case, 450 U.S. at 375:
. . no policy argument will convince me that a
plaintiff who has refused an offer under Rule 68
and that has a “take nothing” judgment entered
against her should be in a better position than a
similar plaintiff who has refused an offer under
Rule 68 but obtained a judgment in her favor,
although in a lesser amount than that which was
offered pursuant to Rule 68. The construction of
Rule 68 urged by the Court would place in a better
position a defendant who tendered $10,000 to a
plaintiff under Rule 68 in a case where the plaintiff
was awarded $5,000 then where the same tender
was made and the plaintiff was awarded nothing.
Chief Justice Rehnquist disagreed with the majority of the Court that
the “plain language” of the Rule requires such an interpretation. He
refused to read into the “plain language” of the statute a requirement
that the plaintiff win, and concluded:
In sum, I would reject the “plain meaning” basis
of the Court’s opinion interpreting Rule 68 because,
in my view, the Rule must be read not only contrary
to its “plain meaning” but also woodenly and
perversely in order to reach a conclusion that a
prevailing defendant who had made an offer
pursuant to Rule 68 should be placed in a worse
position than one who has lost to the plaintiff and
has a judgment entered against him accordingly,
14
;
but for an amount less than the amount tendered
under Rule 68.
Delta, 450 U.S. at 379-380.
The issues raised by this unique fact situation must be resolved
by this Court. Guidance has to be given as to the application of Rule 68 in
a multiparty litigation. The Court erred when it added a requirement of a
victorious judgment to the language of Rule 68. Even if the Court’s ruling
in Delta is upheld, it falls short of addressing the facts of this case. No
court has addressed the application of Rule 68 in a multiparty litigation
where the offering defendants were the only defendants against which the
Plaintiff did not prevail and where the Plaintiff recovered treble damages,
attorneys’ fees and costs against remaining co-defendants. Therefore,
Petitioners request that this Court find that the Fifth Circuit erred when it
affirmed the district court’s refusal to award costs incurred, including
attorneys’ fees, from the date of their Rule 68 Offer of Judgment, July 23,
1992, forward.
Il. RULE 68 REQUIRES THE PLAINTIFF TO
PAY THE COSTS OF LITIGATION,
INCLUDING ATTORNEYS’ FEES, OF
PREVAILING DEFENDANTS
Under Rule 68, if the plaintiff fails to accept an offer of
judgment of a defendant, and later obtains a less favorable result than
such offer, he must pay the costs incurred after the making of the offer. In
this case, LP&L obtained a judgment against five (5) other defendants in
15
the amount of $1.5 million plus attorneys’ fees and costs, with a judgment
entered in favor of the Petitioners and against the Plaintiffs. This Court
has already determined that attorneys’ fees are an element of costs
recoverable under Rule 68 in a Title VII action because attorneys’ fees
are recoverable as an element of costs under 42 U.S.C. §1988. Marek v.
Chesney, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Likewise,
attorneys’ fees should be recoverable as an element of Rule 68 costs in an
antitrust litigation. Petitioners request that this Court extend its reasoning
in Marek to encompass an action brought under the Clayton Antitrust
Act.
In Marek v. Chesney, supra., the Court held that “costs” under
a Rule 68 offer of judgment include attorney’s fees. The Court specifically
stated that, “[a]bsent Congressional expressions to the contrary, where
the underlying statute defines “costs” to include attorney’s fees, we are
satisfied such fees are to be included as costs for purposes of Rule 68.” 87
L.Ed.2d at 9.
In Marek, the plaintiff sued under 42 U.S.C. §1983.
Defendants made an offer of judgment which plaintiff rejected. Plaintiff
was successful in the action but recovered less than the offer. Plaintiff
sought attorney’s fees and costs pursuant to the Civil Rights Attorney’s
Fees Awards Act of 1976, 42 U.S.C. §1988, which provides that, “[i}n
any action or proceeding to enforce a provision of section . . .1983. . .of
16
this title, . . . the court, in its discretion, may allow . . . a reasonable
attorney's fees as part of the costs.” Defendants objected, in part, to
plaintiff's demand as it sought fees and costs incurred after the defendants
made an Offer of Judgment. The Marek defendants based their argument
on Rule 68.
Because the underlying statute in Marek provided for “a
reasonable attorney’s fee as part of costs,” the Court determined that
attorney’s fees were subject to the cost-shifting provision of Rule 68.
Marek, 473 U.S. at 9. In coming to this determination, the Court reasoned:
In this setting, given the importance of costs, it is
very unlikely that this omission [of a definition of
costs under Rule 68] was mere oversight; on the
contrary, the most reasonable inference is that the
term “costs” in Rule 68 was intended to refer to all
costs properly awardable under the relevant
ity. In other
words, all costs properly awardable in an action
are to be considered within the scope of Rule 68
“costs.”
Marek, 473 U.S. at 9. (emphasis added).
Such reasoning should extend to an action brought under the
Clayton Antitrust Act. Section 15 of the Clayton Antitrust Act provides
that:
Any person who shall have been injured in
his business or property . . . by reason of anything
forbidden in the antitrust laws . . . shall recover...
the cost of suit, including a reasonable attorney's
fee. ”
17
15 U.S.C. §15 (emphasis added). In Rickards v. Canine Eye Registration
Foundation, Inc., 783 F.2d 1329, 1334-35 (9th Cir. 1986), cert. denied,
479 U.S. 851 (1986), the Ninth Circuit concluded that costs incurred in
the defense of a baseless antitrust suit constitute an “injury” under the
antitrust laws. Since this provision clearly permits recovery of attorneys’
fees as part of costs, defendants’ post-offer attorneys’ fees are recoverable
under Rule 68 and the Offer of Judgment.
LP&L is required, under the dictates of Rule 68 and the Court’s
ruling in Marek, supra, to pay to Comstock the costs which ii incurred
after the Offer of Judgment. These costs include attorneys’ fees as
attorneys’ fees are included in the definition of costs under the Clayton
Antitrust Act. 15 U.S.C. 1 et seq.
IL COMSTOCK’S OFFER OF JUDGMENT,
DATED JULY 22, 1992, WAS TIMELY
An issue not previously determined by this Court is the proper
computation of the time for making a Rule 68 offer of judgment, i.c.,
what is the proper computation of a period of “more than 10 days”. Rule
68 requires that an offer of judgment be made “[a]t any time more than
10 days before the trial begins,. . .” [emphasis added]. The phrase “more
than 10 days” clearly requires that an offer of judgment be served upon a
plaintiff at least eleven (11) days prior to the commencement of trial.
This eleven-day period is computed in accordance with Rule 6(a), which
18
provides that any period in excess of ten days is computed by counting all
calendar days, but “when the period of time prescribed or allowed is less
than II days, intermediate Saturdays, Sundays and legal holidays shall
be excluded in the computation.” Fed.R.Civ.P. 6(a).
As the district court recognized, and the docket sheet confirms,
the jury trial began with Opening Statements on August 5, 1992. The
Offer of Judgment was made on July 22, 1992. For purposes of computing
the period of time in which to serve an offer of judgment, the act from
which the eleven day period begins to run is the commencement of the
trial. Rule 68 is different from most rules in that it counts backwards
from the trial to the offer date. Therefore, counting August 4th!"), 3rd!2I,
2nd"), Ist", July 31st ©), 30th, 29th!!, 28th!*), 27th), 26th!"l, 25th!"4,
24th!"7], 2303], and 22nd!"4], the difference is 14 days.
Relying on Polk v. Montgomery County, Maryland, 130
F.R.D. 40, 42 (D.Md.1990), the district court in its computation excluded
weekends, treating the prescribed time period as one “less than 11 days.”
Rule 6(a) clearly states that, “Saturdays, Sundays and legal holidays” are
only excluded in the computation when the period of time prescribed or
allowed is less than eleven (11) days. The district court and the ruling in
Polk are in error. Rule 68 does not prescribe a 10 day limitation period.
The Rule says “any time more than 10 days.” The definition of the
term “more” provides:
19
l1.a Greater, as in size, number, power;-now only
in “the more part.”. . .2. Existing in greater quantity,
amount, degree, quality and the like;-with the
singular. . . . 3. Greater or exceeding in numbers;-
with the plural. . . .
Webster’s New International Dictionary, 2nd Ed., unabridged, 1947, at
page 1593.
Rule 6(a) only requires the exclusion of the intermediate
Saturdays, Sundays, and legal holidays in the computation when “the
period of time prescribed is Jess that 11 days.” The definition of the term
“less” provides:
1. Smaller; not so much; shorter; inferior; as, a Jess
quantity; a horse of Jess value; in /ess time. The
substantive which /ess qualifies is often omitted;
as, the purse contained Jess (money) than ten
dollars. . . 3. Fewer; - now incorrect according to
strict usage, except with a collective; as, to wear
less clothes.
Webster’s New International Dictionary, 2nd Ed., unabridged, 1947, at
page 1418. Itis clear from a plain reading of the Rules that the computation
of the timely service of an offer of judgment under Rule 68 includes
intermediate Saturdays, Sundays and holidays. Such an interpretation
would further the goals of Rule 68. In Greenwood v. Stevenson, 88 F.R.D.
225, 228 (D.R. I. 1980) the court held:
The Rule attempts to minimize the economic
burden of litigating a case to the bitter end by
facilitating an acceptable compromise at some
earlier point. Since a late settlement that avoids
some of the trial costs would seem to be better than
20
no settlement at all, the policy of the Rule would
appear best served by selecting the last possible
point in time for cutting off Rule 68 offers. Cf.
Cover v. Chicago Eye Shield Co., 136 F.2d 374
(7th Cir. 1943), cert. denied, 320 U.S.749, 64 S.Ct.
53, 88 L.Ed. 445 (1943)... . Indeed, looking purely
to the policies embodied in the Rule, one wonders
why there should be any restriction on when offers
of judgment can be made.
88 F.R.D. at 228.
The record reveals that the Comstock defendants served their
Offer of Judgment on July 22, 1992. Although trial was set for August 3,
1992, the district court did not begin to hear this case until August 5,
1992, following two days of jury selection.’ As the district court correctly
recognized in its Rulings on Motions on page 2, under Rule 68, trial does
not begin with selection and impaneling of the jury. Rather, “trial begins’
when the trial judge calls the proceedings to order and actually commences
to hear the case.” Greenwood, 88 F.R.D. at 227-229. As noted by the
court in Greenwood, this interpretation best furthers the policy of Rule
68, “by permitting offers of judgment to be made, and perhaps accepted,
in the intervening periods.”
The district court calculated the time period for making an
offer of judgment as a ten day period. This is incorrect. Instead, the plain
language of the statute reveals that the period is “more than ten days prior
to trial . . .” Rule 68 (emphasis added). Therefore, the district court should
* Even counting from August 3, 1992, the date upon which jury selection
began, the Offer of Judgment, served 12 days earlier, was still timely.
21
have calculated the period as a period in excess of ten days, taking into
account Saturdays, Sundays and legal holidays. This method of calculation
is not only clearly intended by the statute, but advances the purpose of the
Rule to encourage settlements rather than trials. Comstock served the
Offer of Judgment “more than 10 days before the trial” began; they served
it 14 days before the trial began. Consequently, the Court’s ruling, that
the Offer of Judgment was untimely, was in error.
CONCLUSION
Comstock’s Rule 68 Offer of Judgment was timely filed and
the Petitioners should have been awarded their Rule 68 costs, including
attorneys’ fees, incurred from July 23, 1992, forward. Any other
interpretation of Rule 68 would require an improper reading of the “plain
meaning” of Rule 68 and would emasculate the Rule’s effectiveness.
Guidance from this Court is needed as to the proper interpretation of Rule
68 in acomplex multi-party litigation. LP&L clearly did not “take nothing”
since they were awarded over $5.5 million in this case. There is no policy
argument which justifies denying Petitioners’ rights under Rule 68 simply
because the Plaintiff, while recovering over $5.5 million, recovered nothing
against Petitioners. Petitioners also seek a ‘etermination of the proper
computation of the time for serving an offer of judgment under Rules 68
and 6(a), as well as the scope of costs recoverable under Rule 68 in an
antitrust action. Therefore, L. K. Comstock & Company, Inc. and LKC,
22
ry
Inc. respectfully request this Court to grant their Writ for Certiorari to
review important issues of federal law which have not been, but should
be settled by this Court and remand this case with orders to the district
court to properly award the Petitioners their Rule 68 costs, including
attorneys’ fees.
Respectfully submitted:
Robert A. Kutcher
Ashley L. Belleau
Nicole S. Tygier
BRONFIN & HELLER
650 Poydras Street, Suite 2500
New Orleans, Louisiana 70130-6101
Telephone: (504) 568-1888
Joel B. Cutler
MURTAGH, COHEN & BYRNE
1100 Franklin Street, Suite 303
Garden City, New York 11530
Telephone: (516) 747-1000
Co-counsel for Petitioners,
L.K. Comstock & Company, Inc and
LKC, Inc.
23
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 93-3756
LOUISIANA POWER & LIGHT COMPANY,
Plaintiff-Appellee,
versus
FRANCIS S. KELLSTROM, ET AL.,
Defendants-Appellants.
United States Court of Appeals
Fifth Circuit
Appeal from the United States District Court
for the Eastern District of Louisiana
April 10, 1995
Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:
Louisiana Power & Light Co. (“LP&L”) sued multiple defendants!
for antitrust and RICO violations, and the jury rendered a verdict in LP&L’s
favor against five defendants” and against LP&L on the remainder of its
claims. Pursuant to 15 U.S.C. § 153 and Fed. R. Civ. P. 54 (d),* the district
. The defendants were Fischbach & Moore, Inc., Fischbach Corp., Francis S.
Kellstrom, Commonwealth Electric Co., Howard P. Foley Co., L.K. Comstock & Co., Inc., LKC,
Inc., Commonwealth Cos., John D. Keys, Lewis E. Eastman, J.R. Sturgill, Jr., and Paul M. Murphy.
. Fischbach & Moore, Inc., Fischbach Corp., Francis S. Kellstrom, Common-
wealth Electric Co., and Howard P. Foley Co.
’ This section provides:
[A]ny person who shall be injured in his business or property by reason of anything
A-1
court awarded attorneys’ fees to LP&L on its successful claims and to the
prevailing defendants on theirs.’ Defendants Fischbach & Moore, Inc.,
Fischbach Corp., and Francis S. Kellstrom (collectively “Fischbach”) ap-
peal the award of attorneys’ fees to LP&L. Defendants L.K. Comstock &
Co., Inc. and LKC, Inc. (collectively “Comstock”) appeal the amount of the
district court’s taxation of costs against LP&L. We affirm in part, modify
and affirm in part, and reverse and render in part.
I ,
In its antitrust and RICO suit, LP&L alleged that the defendants
had conspired to rig the electrical bids for the Waterford 3 nuclear power
plant project. Shortly before trial, Comstock made an offer of judgment
to LP&L under Rule 68 of the Federal Rules of Civil Procedure,® which
offer LP&L refused. Following approximately six years of pretrial prepa-
ration and eight-weeks of trial, the jury found for LP&L on its bid rigging
claims against Fischbach, Commonwealth Electric Co., and the Howard
P. Foley Co.’ but found against LP&L on its claims against Comstock.
Although LP&L had requested $15-17 million in damages, the jury
awarded it only $500,000.°
forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained,
and the cost of suit, including a reasonable attorney’s fee.
15 U.S.C. § 15 (1988).
‘ Rule 54(d) provides:
Except when express provision therefor is made either in a statute of the United
States or in these rules, costs other than attorneys’ fees shall be allowed as of
course to the prevailing party unless the court otherwise directs . . . .
Fed. R. Civ. P. 54(d).
. L. K. Comstock & Co. and LKC, Inc. are the only prevailing defendants in-
volved in this appeal.
$ See infra Part II (Comstock Appeal), A.
. Commonwealth Electric Co. and the Howard P. Foley Co. are not parties to
this appeal.
. Under 15 U.S.C. § 15 (1988), this amount was trebled for a total recovery of
$1.5 million.
A-2
After trial, LP&L filed an application for an award of $281,668.66
in costs and $5,205,296.96 in fees. Comstock filed an application for costs
that eventually totalled $71,264.07. Comstock also moved to amend the
judgment to include its attorneys’ fees based on its Rule 68 offer of judg-
ment.
After receiving multiple motions to review elements of the vari-
ous cost and fee applications, the district court held a hearing on all such
applications. Fischbach challenged portions of LP&L’s fee request, and
LP&L challenged Comstock’s cost request. The district court took the
matter under submission and eventually entered its findings and conclu-
sions, awarding $4,182,893.73 in fees and costs to LP&L and $33,743.47
in costs to Comstock but denying Comstock’s Rule 68 and Rule 26 re-
quests and Fischbach’s Rule 26 request.
Fischbach appeals the award of fees and costs to LP&L, contending
that the district court erred by 1) failing to reduce the number of hours
awarded; 2) failing to reduce the hourly rates awarded; 3) failing to reduce
the lodestar more than it actually did; 4) awarding postjudgment interest
from the date of judgment on the merits, rather than from the date of the
final fee award; and 5) awarding fees for LP&L’s experts’ response to dis-
covery while denying the same to Fischbach. Comstock appeals its award
of costs, arguing that the district court erred by 1) refusing to award fees
under its Rule 68 offer of judgment; 2) awarding fees for LP&L’ s experts’
response to discovery while denying the same to Comstock; and 3) refusing
to award fees and costs for pursuing its cost recovery.
Il
The Fischbach Appeal:
Fischbach challenges several elements of the award of attorneys’
A-3
ai ect
fees and costs to LP&L. First, Fischbach asserts that the district court erred
in determining the “lodestar” amount by accepting both the total hours and
the hourly rates submitted by LP&L. Second, it disputes as inadequate the
district court’s downward adjustment of the lodestar. Third, Fischbach
disagrees with the date chosen by the district court for the start of
postjudgment interest. Last, it asserts that the district court should either
deny LP&L’s costs for experts’ response to discovery or grant these costs
to both parties.
ce ee a a ee ee
ad aaa
A
In addressing Fischbach’s assertion that the district court erred in its
calculation of the base lodestar, we note that determination of reasonable
attorneys’ fees involves a two-step procedure. See Hensley v. Eckerhart,
461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983) Initially,
the district court must determine the reasonable number of hours expended
on the litigation and the reasonable hourly rates for the participating law-
yers. Jd. Then, the district court must multiply the reasonable hours by
the reasonable hourly rates. Blum v. Stenson, 465 U.S. 886, 888, 104 S.
Ct. 1541, 1544, 79 L. Ed. 2d 891 (1984) (defining base fee to be product ~
of reasonable hours and reasonable rate); Hensley, 461 U.S. at 433, 103 |
S. Ct. at 1939 (defining product of hours reasonably expended and rea-
sonable hourly rates as “[t]he most useful starting point”); Brantley v.
Surles, 804 F.2d 321, 325 (Sth Cir. 1986) (stating hours multiplied by
rate to be normal basis for fee). The product of this multiplication is the
lodestar, which the district court then either accepts or adjusts upward or
downward, depending on the circumstances of the case. Brantley, 804
F.2d at 325. Determinations of hours and rates are questions of fact. See
Bode v. United States, 919 F.2d 1044, 1047 (Sth Cir. 1990) (reviewing
A-4
hours for clear error) . Accordingly, we review the district court’s determi-
nation of reasonable hours and reasonable rates for clear error. See Blanchard
v. Bergeron, 893 F.2d 87, 89 (Sth Cir. 1990) (reviewing underlying factual
determinations for clear error).
1
Fischbach challenges the district court’s allowance of certain hours
claimed by LP&L. As noted, the first step in determining reasonable attor-
neys’ fees is an evaluation of the number of hours reasonably expended.
Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d
Cir. 1978). The district court must determine whether the hours claimed
were “reasonably expended on the litigation.” Alberti v. Klevenhagen, 896
F.2d 927, 933-34 (Sth Cir.) , vacated on other grounds, 903 F.2d 352
(Sth Cir. 1990); see also Hensley, 461 U.S. at 434, 103 S. Ct. at 1939
(“The district court also should exclude from this initial fee calculation
hours that were not 'reasonably expended.”’). Moreover, “the fee appli-
cant bears the burden of establishing entitlement to an award and docu-
menting the appropriate hours expended and hourly rates. The applicant
... Should maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims.” Hensley, 461 U.S. at 437,
103 S. Ct. at 1941; see also Bode, 919 F.2d at 1047 (“[{T]he party seeking
reimbursement of attorneys’ fees . . . has the burden of establishing the
number of attorney hours expended, and can meet that burden only by
presenting evidence that is adequate for the court to determine what hours
should be included in the reimbursement.”).
Accordingly, the documentation must be sufficient for the court to
verify that the applicant has met its burden. Jd. “In determining the amount
of an attorney fee award, courts customarily require the applicant to pro-
A-5
duce contemporaneous billing records or other sufficient documentation so
that the district court can fulfill its duty to examine the application for
noncompensable hours.” /d.; see also Hensley, 461 U.S. at 433, 103 S.
Ct. at 1939 (“The party seeking an award of fees should submit evidence
supporting the hours worked and rates claimed.”). Thus a district court
may reduce the number of hours awarded if the documentation is vague
or incomplete. See Alberti, 896 F.2d at 931 (refusing to accept incom-
plete documentation “at face value”); Leroy v. City of Houston (Leroy 1),
831 F.2d 576, 585-86 (Sth Cir. 1987) (finding clear error and abuse of
discretion when district court accepted “faulty records” without making
reduction); cf Hensley, 461 U.S. at 433, 103 S. Ct. at 1939 (counseling
that “[w]here the documentation of hours is inadequate, the district court
may reduce the award accordingly”).
Fischbach contends that the district court clearly erred in accepting
all of the hours submitted by LP&L. Fischbach first notes that LP&L failed
to provide contemporaneous billing records for certain time periods. Spe-
cifically, Fischbach points out that LP&L submitted (1) only quarterly sum-
maries for the period from February 1986 to July 1987, totalling $115,070
in requested fees; (2) only month-end summaries for two attorneys during
1987 and 1988, totalling $154,080 in requested fees; (3) no daily time records
for November and December 1988, totalling $82,915 in requested fees; and
(4) no supporting documentation at all for the $6,465 in fees of one attor-
ney, J.P. Madigan.
Failing to provide contemporaneous billing statements does not pre-
clude an award of fees per se, as long as the evidence produced is adequate
to determine reasonable hours. Heasley v. Commissioner, 967 F.2d 116,
123 (5th Cir. 1992). After painstakingly reviewing the instant record, we _
A-6
conclude that the district court failed to determine properly whether some of
the hours submitted were reasonably expended and that LP&L failed to sat-
isfy its burden of proving its entitlement to compensation for some of the
hours submitted.
The district court stated that it had not “undertake[n] a dollar-by-
dollar or an hour-by-hour analysis” of LP&L’s records, but that “[a] just
and equitable result can be obtained by following existing case law on what
constitutes a ‘reasonable’ attorney’s fee.” As to the specific items of which
Fischbach complains, this appears to fall short of the standard required of
district courts.
The district court is not only required to determine whether
the total hours claimed are reasonable, but also whether par-
ticular hours claimed were reasonably expended. The court’s
reference to deeming hours to be reasonably expended is trou-
bling because it strongly suggests that the district court did
not abide by this standard. It is not the case that all claimed
time is a fortiori reasonably expended if the total hours
claimed by counsel appear to reflect sound legal judgment
and resulted in satisfactory results.
Alberti, 896 F.2d at 932. Similarly, we find somewhat troubling the district
court’s decision to decline a full analysis on the items complained of; there-
fore, as to those hours, “[i]t does not appear from this record that the district
court determined if particular hours claimed were reasonably expended on
the litigation.” Jd. at 933.
Further, LP&L’s challenged records do not provide this court with
sufficient information to determine whether all of the amounts requested
were reasonably expended on this litigation.” See Leroy I , 831 F.2d at 585
" For example, the documentation for the fourth quarter of 1986 consisted of
A-7
(reversing district court’s acceptance of total hours where billing records
reflected that “some were reconstructed, after-the-fact summaries”). De-
spite Fischbach’s urging us to eliminate entirely the hours covered by the
quarterly and monthly summaries and the period of November to De-
cember, 1988, we find that the documentation supports an award of some
amount of hours. Normally, we would remand to the district court for it
to determine an appropriate reduction. Because the record contains suffi-
cient information to allow a fair determination of a reasonable fee, however,
we choose to exercise our option to modify the fee award on our own.'®
the following summary:
We traveled to New York and deposed defendants Comstock and
LKC,Inc. We reviewed extensive documentation concerning Fischbach &
Moore’s bids to LP&L, and we deposed Fischbach & Moore in Kenner, Loui-
siana. We deposed Lord Elegtric Company in New York City; we traveled to
Lincoln, Nebraska and deposed Commonwealth Electric Company. We re-
viewed transcripts of all these depositions when produced.
We brought formal discovery complaints to the Court and argued
them to the Magistrate, who ordered each of the defendants to provide supple-
mental discovery, which we reviewed. The Magistrate also ordered legal memo-
randa on the discovery of grand jury materials, which we prepared after re-
search. We reviewed the memoranda filed by others.
We conferred with Company personnel and employees and attor-
neys for Ebasco services, Inc. concerning interrogatories and requests for docu-
ments submitted to LP&L by defendants Fischbach & Moore and Comstock.
We reviewed extensive documentation produced by Ebasco and prepared an-
swers and response to defendants’ discovery demands. We conferred with
opposing counsel and the Magistrate concerning LP&L’s production of docu-
ments.
We extensively conferred with LP&L’ s investigator and reviewed
reports concerning other price-fixing litigation involving defendants, and we
conferred with other attorneys of other injured parties. We prepared bank-
ruptcy pleadings to obtain discovery from E.C. Ernst Company.
A fee total of $23,900 was submitted for this work. Unfortunately, this documentation provides no
basis upon which we could determine if $23,900 or $123,900 or $2,390 was reasonably expended
for these services. There is no indication of the number of hours expended per task, by whom, for
what, and at what rate. Without such basic information, no Hensley determinations regarding “the
reasonable number of hours spent on the litigation and a reasonable hourly rate” can be made. See
Hensley, 461 U.S. at 433, 103 S. Ct. at 1939.
‘0 See Leroy I, 831 F. 2d at 585-86 (vacating district court judgment and
A-8
Therefore, in the exercise of our discretion and after a careful analysis of the
record and the determinations of the district court, we deem appropriate a
ten percent reduction for inadequate documentation of the hours and fees
requested for |) February 1986 to July 1987, 2) month-end summary en-
tries by Attorneys Slater and Stevenson during 1987 and 1988, and 3) No-
vember and December 1988. As for the request for hours for Attorney
Madigan, however, the record is virtually devoid of any information helpful
to a determination of whether or how his hours were spent beneficially on
this litigation. We accordingly deny any award of attorneys’ fees based on
the hours submitted for Attorney Madigan.
Fischbach also challenges several entries as too vague to support a
determination whether or how they were spent on this litigation. The dis-
trict court may properly reduce or eliminate hours when the supporting docu-
mentation is too vague to permit meaningful review. See Leroy v. City of
Houston (Leroy II), 906 F.2d 1068, 1080 (Sth Cir. 1990) (striking hours as
“not illuminating as to the subject matter” or “vague as to precisely what
was done”); Leroy I, 831 F.2d at 585-86 (reversing when district court ac-
cepted all hours from records that were “scanty,” completely missing, or
lacking in explanatory detail) ; see also HJ, Inc., 925 F.2d at 260 (reducing
hours for vague entries such as “legal research,” “trial preparation,” and
“met with client”).
After reviewing the instant record, we agree that many entries in
LP&L’s time records are indeed scanty as to subject matter.'' Nonethe-
remanding for entry of amended award); Cobb v. Miller, 818 F. 2d 1227, 1235 (Sth Cir. 1987)
(reversing district court and rendering judgment on fee award); see also Home Placement Serv.
v. Providence Journal Co., 819 F.2d 1199, 1211 (1st Cir. 1987) (opting to modify fee award
rather than remand).
. LP&L’s records contain vague entries such as “revise memorandum,” “re-
A-9
less, our case law has not precisely defined the appropriate standard, if in
fact it is susceptible of being thus defined. Accordingly, “not illuminat-
ing as to the subject matter” or “vague as to precisely what was done”
gives the district court sufficient leeway within which to accept or reject
fee applications similar to that submitted by LP&L. Litigants take their
chances when submitting such fee applications, as they provide little in-
formation from which to determine the “reasonableness” of the hours
expended on tasks vaguely referred to as “pleadings,” “documents,” or
“correspondence” without stating what was done with greater precision.
See Hensley, 461 U.S. at 434, 103 S. Ct. at 1939 (instructing district
9 4
view pleadings,” “review documents,” and “correspondence.” Specifically, we find the following
hours lack the required specificity to support completely the fees requested:
Slater: 290.75 hours, totalling $66,348.75 in fees
Stevenson: 229.25 hours, totalling $47,442.50
O'Keefe: 19.7 hours, totalling $3622.50
Lewis: 0.3 hours, totalling $67.50
O’Brien: 2.8 hours, totalling $490.00 96.0
Staub: 96.0 hours, totalling $16,140.00
Burns: 6.0 hours, totalling $960.00
Thomas: 7.0 hours, totalling $980.00
Rodriguez: 36.0 hours, totalling $5040.00
McGrew: 1.3 hours, totalling $182.00
Van Horn: 0.5 hours, totalling $60.00
Chalker: 32.0 hours, totalling $3840.00
McAlister: 1.0 hours, totalling $120.00
Schooley: 52.0 hours, totalling $5200.00
Brown: 1.75 hours, totalling $175.00
Friend: 124.04 hours, totalling $12,404.00
Readinger: 236.25 hours, totalling $11,812.50
Walker: 42.15 hours, totalling $2107.50
Pate: 32.25 hours, totalling $1612.50
Hughs: 61.75 hours, totalling $2778.75
Carrigan: 5.0 hours, totalling $225.00
Goodwin: 33.8 hours, totalling $1521.00
Evans: 9.05 hours, totalling $407.25
Helwig: 30.75 hours, totalling $1383.75
Gullo: 0.35 hours, totalling $15.75
Whittington 0.5 hours, totalling $22.50
Fleming: 4.25 hours, totalling $191.25
A- 10
ee
court to exclude hours not “reasonably expended”).
Viewing the time records as a whole, however, and given the district
court’s familiarity with this case, including the quality of the attorneys’ work
over a period of several years, we cannot say that the district court clearly
erred in refusing to reduce the hours in question for vagueness. These en-
tries may border on inadequacy as a matter of law, but we are mindful that
practical considerations of the daily practice of law in this day and age pre-
clude “writing a book” to describe in excruciating detail the professional
services rendered for each hour or fraction of an hour. We also recognize
that, in this era of computerized time keeping, many data processing pro-
grams limit the amount of input for any given hourly or daily entry. Nev-
ertheless, attorneys who anticipate applying for reimbursement of fees should
endeavor to be less terse.
In addition to criticizing LP&L’s records as inadequate and vague,
Fischbach also complains that the district court failed to exclude hours that
LP&L expended litigating against the other defendants. A prevailing liti-
gant may not recover for hours devoted solely to claims against other par-
ties. See Hensley, 461 U.S. at 434-35, 103 S. Ct. at 1940 (work on unsuc-
cessful claim not compensable); Baughman, 583 F.2d at 1214 (defendant
relieved from compensating plaintiff for hours expended litigating against
other defendants). But when claims against multiple parties share a “‘com-
mon core of facts” or “related legal theories,” a fee applicant may claim all
hours reasonably necessary to litigate those issues. Hensley, 461 U.S. at
434-35, 103 S. Ct. at 1940.”
a See also City of Riverside v. Rivera, 477 U.S. 561, 570, 106 S. Ct. 2686, 2692,
91 L. Ed. 2d. 466 (1986) (finding common core of facts); Abell v. Potomac Ins. Co., 946 F.2d
1160, 1169 (Sth Cir. 1991) (“[W]here time spent on unsuccessful issues is difficult to segregate, no
A- ll
Proving an antitrust case involves demonstrating collusion among
multiple defendants; this requires the plaintiff to prove the same facts and
issues against several parties to recover against any one party. See 15 U.S.C.
§ 2 (1988) (defining violation for persons who “combine or conspire”). We
are here satisfied that LP&L’s claims against the other defendants involved
a common core of facts, and that LP&L was thus entitled to claim the hours
it spent litigating against the other defendants. Consequently, we conclude
that the district court did not err in refusing to sift through LP&L’s hours
and eliminate those spent in litigation against the other defendants."
2
Next, Fischbach challenges the district court’s determination of the
hourly rates awarded to LP&L. This too we review for clear error. Powell
v. Commissioner, 891 F.2d 1167, 1173 (Sth Cir. 1990) (holding that deter-
mination of reasonable rates is question of fact, subject to clear error stan-
dard); Islamic Ctr. v. City of Starkville, 876 F.2d 465, 468 (Sth Cir. 1989)
(using clear error standard to evaluate hourly rates awarded). To determine
reasonable rates, a court considers the attorneys’ regular rates as well as
prevailing rates. HJ, Inc., 925 F.2d at 260 (considering regular rates as
reduction of fees is required.”), cert. denied, U.S.___, 112 S. Ct. 1944, 118 L. Ed. 2d 549
(1992); Nash v. Chandler, 848 F.2d 567, 572 (Sth Cir. 1988) (finding no clear error where unsuc-
cessful claims “highly relevant” to successful claim); Cobb v. Miller, 818 F.2d 1227, 1233 (STh Cir.
1987) (holding claims against multiple defendants compensable because interrelated).
" When a plaintiff's claims cannot be disentangled, the district court’s focus
should shift to the results obtained and adjust the lodestar accordingly. Hensley, 461 U.S. at 436-
37, 103 S. Ct. at 1941 (“The district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited success.”); HJ, Inc., 925 F.
2d at 260 (permitting district court to either cut non-successful hours or reduce lodestar to reflect
success); United States Football League v. National Football League, 887 F.2d 408, 414 (2d Cir.
1989) (holding that district court did not abuse discretion in reducing lodestar rather than cutting
nonsuccessful hours), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed. 2d 1022 (1990).
We address this issue infra in section B.
A-12
Er ee ee
ON eee ES ee ee ee ee ee ee Ones Pea
Pea Oe
well as prevailing rates); Laffey v. Northwest Airlines, Inc., 746 F.2d 4,23
(D.C. Cir. 1984) (calling for “reference to the customary billing rate fol-
lowed by comparison to the prevailing community rate to ensure that the
attorney’s customary rate is reasonable”), cert. denied, 472 U.S. 1021, 105
S. Ct. 3488, 87 L. Ed. 2d 622 (1985). During the latter part of the instant
litigation, LP&L’s attorneys reduced the hourly rates they charged by 25%
in exchange for a contingent share of any eventual recovery. In its fee appli-
cation, however, LP&L requested its attorneys’ usual rate."
When an attorney’s customary billing rate is the rate at which
the attorney requests the lodestar be computed and that rate
is within the range of prevailing market rates, the court
should consider this rate when fixing the hourly rate to be
allowed. When that rate is not contested, it is prima facie
reasonable. When the requested rate of compensation ex-
ceeds the attorney’s usual charge but remains within the
customary range in the community, the district court should
consider whether the requested rate is reasonable.
Islamic, 876 F.2d at 469; see also Powell, 891 F.2d at 1175 (holding cus-
tomary billing rate to be prima facie reasonable). After due consider-
ation, the district court found that LP&L’s requested rate was reasonable.
Fischbach argues that LP&L should not recover any amount in excess of
the fees actually paid.'* Otherwise, Fischbach contends, LP&L will re-
ceive a windfall. Attorneys’ fees awards should not provide a windfall to
a LP&L also submitted affidavits from other local attorneys supporting its rate
request.
wg Fischbach characterizes LP&L’s requested rate as an improper “multiplier” or
“contingency enhancement.” see Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S.
711, 731, 107 S. Ct. 3078, 3089, 97 L. Ed. 2d 585 (1987) (holding enhancements generally inap-
propriate). The enhancements in these cases, however, refer to requests for multipliers in excess of
a reasonable rate. Therefore, Fischbach’s argument is inapplicable to the facts of this case.
A - 13
plaintiffs. See Hensley, 461 U.S. at 430 n.4, 103 S. Ct. at 1938 n.4 (ex-
plaining statutory goal of avoiding windfalls to attorneys); see also River-
side, 477 U.S. at 580, 106 S. Ct. at 2697 (“Congress intended that statutory
fee awards be ‘adequate to attract competent counsel, but . . . not produce
windfalls to attorneys.”” (quoting S. Rep. No. 1011, 94th Cong., 2d Sess. 6
(1976), reprinted in 1976 U.S.C.C.A.N. 5913)). Nevertheless, the actual
amount paid in fees is not dispositive on the question of reasonable rates.
See Blum v. Stenson, 465 U.S. 886, 895-96, 104 S. Ct. 1541, 1547, 79 L.
Ed. 2d 891 (1984) (determining that courts should use market rates, not
cost-based rates); Alizadeh v. Safeway Stores, Inc.,910 F.2d 234, 238 n.6
(Sth Cir. 1990) (suggesting that “attorneys’ fees awards are not always purely
compensatory in nature”); Brantley v. Surles, 804 F.2d 321, 327 (Sth Cir.
1986) (“That the amount of the fee award exceeds the amount billed by
opposing counsel is also not determinative.”’). In Blanchard v. Bergeron,'®
the Supreme Court refused to limit trial judges to the contract between the
plaintiff and his counsel. 489 U.S. at 96, 109 S. Ct. at 946. “Should a fee
agreement provide less than a reasonable fee . . . . the defendant should
nevertheless be required to pay the higher [market-based) amount.” /d. at
93, 109 S. Ct. at 944.
The issue we review on appeal here is not how much the attorneys _
charged but whether the fees awarded by the district court are reasonable; if _
they are reasonable, then by definition there will be no windfall. Jd. at 96,
109 S. Ct. at 946. Moreover, “[t]he established rates represent the opportu-
nity cost of what the firm turned away in order to take the litigation.” Laffey,
746 F.2d at 24. Our review of the record reveals that both the rates charged _
” 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989).
A- 14
and the rates requested were well within the range of prevailing rates in the
community. The district court approved the requested rates, and we find no
clear error in this choice.
B
Fischbach also challenges the district court’s adjustment of the
lodestar.'’ We review lodestar adjustments for abuse of discretion. Palmco
Corp. v. American Airlines, Inc., 983 F.2d 681, 688 (5th Cir. 1993) (re-
viewing award of attorneys’ fees for abuse of discretion). “It remains im-
portant, however, for the district court to provide a concise but clear expla-
nation of its reasons for the fee award.” Hensley, 461 U.S. at 437, 103 S.
Ct. at 1941; see also Brantley, 804 F.2d at 325-26 (“Our concern is not that
a complete litany be given, but that findings be complete enough to assume
a review which can determine whether the court has used proper factual
criteria in exercising its discretion to fix just compensation.”); Nisby v.
Commissioners Court, 798 F. 2d 134, 137 (Sth Cir. 1986) (“When the
district court does not explain its reasons for the attorney’s fee it awards,
we are unable adequately to review the propriety of the fee award.”);
Baughman, 583 F.2d at 1219 (requiring explanation of district court’s
adjustment of lodestar).
We therefore inspect the district court’s lodestar analysis only to
determine if the court sufficiently considered the appropriate criteria.
Moreover, Fischbach bears the burden of showing that further reduction
is warranted. See USFL, 887 F.2d at 413 (“[A] party advocating the
od The district court reduced the lodestar 15% for overstaffing and made no
other adjustments.
” 488 F.2d 714 (Sth cir. 1974).
ae The factors include: 1) the time and labor required for the litigation; 2) the
A- 15
reduction of the lodestar amount bears the burden of establishing that a re-
duction is justified.”’).
Adjustment of the lodestar in this Circuit involves the assessment of
a dozen factors. Our opinion in Johnson v. Georgia Highway Express,
Inc."* identifies these factors.'°
Primarily, Fischbach contests the district court’s refusal to reduce
the lodestar to reflect LP&L’s “limited success,” the eighth of the Johnson
factors. In considering this factor, the district court ruled:
The results obtained, though disappointing to plaintiff in
quantum, were nonetheless significant. The amount in-
volved, the $15-17 million sought as opposed to $500,000
awarded by the jury is not insignificant for inherent therein
is the principle of the matter. . . . [I]t should be remem-
bered that in this instance the plaintiff is entitled to a man-
datory fee shifting award, not a discretionary one based
on limited success achieved.
Significant here is the fact that plaintiff exposed
the rapacious avarice of educated executives and profes-
sionals. . . . Such conduct cuts the thread of the fabric of
our society and consequences invariably get borne by the
citizenry. The Court considers exposure of this antitrust
violation and racketeering activity to be an important and
highly significant result obtained.”
novelty and complication of the issues; 3) the skill required to properly litigate the issues; 4)
whether the attorney had to refuse other work to litigate the case; 5) the attorney’s customary fee;
6) whether the fee is fixed or contingent; 7) whether the client or case circumstances imposed any
time constraints; 8) the amount involved and the results obtained; 9) the experience, reputation,
and ability of the attorneys; 10) whether the case was “undesirable;” 11) the type of attorney-
client relationship and whether that relationship was long-standing; and 12) awards made in
similar cases. 488 F.2d at 717-719.
= The district court’s implication that, as to the limited success factor, some
distinction exists between mandatory and discretionary fee shifting is, at most, unfortunate sur-
plusage; the portion of the court’s findings and conclusions that follow demonstrate beyond cavil
that the court did indeed “consider” LP&L’s degree of success and implicitly explained why there
was no additional! lodestar reduction on account of it.
A- 16
Moreover, in commenting on various cases cited by the parties, the
district court mentioned with approval language such as “recovery of the []
reasonable attorney’ s fees must be sustained regardless of the amount of
damages awarded.””!
Fischbach contends that the district court misapplied the law when
it refused to reduce the lodestar for LP&L’s limited success. See Farrar
v. Hobby, US. , _, 113 S. Ct. 566, 574, 121 L. Ed. 2d 494 (1992)
(calling the degree of success the most crucial element in determining
the amount of a reasonable fee); Hensley, 461 U.S. at 440, 103 S. Ct. at
1943 (“A reduced fee award is appropriate if the relief, however signifi-
cant, is limited in comparison to the scope of the litigation as a whole.”).
But it is one thing to consider a factor (which is required) and
quite another to act upon it (which is discretionary with the district court).
In his partial dissent, Judge Garza makes the unqualified statement that
the district court “did not even consider the magnitude of LP&L’s suc-
cess” -a statement that is puzzling in light of the portion of the district
court’s opinion that is quoted in the text accompanying note 20 supra.
When that court’s analysis and pronouncements are read in the context
of the deferential abuse-of-discretion standard that we must apply when
reviewing this issue, we cannot help but disagree with Judge Garza’s
statement. Not only did the district court expressly advert to the magni-
tude of LP&L’s recovery, reciting the quantums of both the demand and
the recovery; that court expressly “considered” the significance of the
- Citing United States Football League v. National Football League, 887 F.2d
408 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed. 2d 1022 (1990). USFL,
however, does not stand for the proposition that all fees requested by a prevailing antitrust plain-
tiff are reasonable; therefore, the language quoted by the district court does not necessarily sup-
port its conclusion.
A-17
countervailing, non-pecuniary aspects of LP&L.’s victory, and also explained,
at least implicitly, why it made no additional reduction to the lodestar. If, in
its discretion, the district court had made a reasonable reduction of the lode-
star for limited success, we undoubtedly would have affirmed that decision
as being a proper exercise of discretion: As we and Judge Garza note, such
a reduction is “appropriate” under Hensley. But “appropriate” is not syn-
onymous with “required. Inasmuch as the district court here clearly did con-
sider limited success and explain its reasons for not further reducing the
lodestar therefor, that court cannot be said to have abused its discretion for
failure to reduce the lodestar on the basis of that considered factor.
We acknowledge at the outset that, to a degree, the district court’s
ruling appears to confuse determination of the right to recover fees with
determination of the reasonable amount of that fee. See Texas State Teach-
ers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793, 109 S. Ct.
1486, 1494, 103 L. Ed. 2d 866 (1989) (“[T]Jhe degree of the plaintiff's
overall success goes to the reasonableness of the award . . . , not to the
availability of a fee award vel non.”); Ingalls Shipbuilding, Inc. v. Direc-
tor, Office of Workers’ Compensation Programs, 991 F.2d 163, 166 (Sth
Cir. 1993) (applying “limited success” analysis to mandatory fee shifting
statute); * see also George Hyman Constr. Co. v. Brooks, 963 F.2d 1532,
1536 (D.C. Cir. 1992) (holding that Hensley standard regarding amount
of reasonable fee applies to all fee shifting statutes, including mandatory
ones).”?
= The statute at issue in /ngalls was the Longshore and Harbor Workers’ Com-
pensation Act, 33 U.S.C. § 901-950 (1988). Like the Clayton Act, see 15 U.S.C. § 15 (1988), the
LHWCA provides that a successful plaintiff “shall be awarded a reasonable attorney’s fee .. ..” 33
U.S.C. 5 SRC ae) ne ee
Neither case cited by the district court mandates an opposite conclusion.
Sciambra v. Graham News, 892 F.2d 411 (Sth cir. 1990), only discussed the right to fees, not the
A- 18
Although the district court found that LP&L’s limited victory was
“an important and highly significant result obtained,” the Supreme Court
has held that a finding of significant result alone does not satisfy the district
court’s duty to evaluate the magnitude of that result.
We are unable to affirm the decisions below, however, be-
cause the District Court’s opinion did not properly consider
the relationship between the extent of success and the amount
of the fee award. The court’s finding that ‘the [significant]
extent of the relief clearly justifies the award of a reason-
able attorney’s fee’ does not answer the question of what is
‘reasonable’ in light of that level of success. We emphasize
that the inquiry does not end with a finding that the plaintiff
obtained significant relief. A reduced fee award is appro-
priate if the relief, however, significant, is limited in com-
parison to the scope of the litigation as a whole.
Hensley, 461 U.S. at 438-39, 103 S. Ct. at 1942-43 (emphasis added);
see also Blum, 465 U.S. at 900, 104 S. Ct. at 1549 (criticizing fee award
because although the award “was based in part on the District Court’s
determination that the ultimate outcome of the litigation ‘was of great
benefit to a large class of needy people,’” the district court “did not ex-
plain . . . exactly how this determination affected the fee award”). In that
respect, the district court’s finding here appears to fall a bit short of the
required analysis. The court’s analysis also appears to fall short in another
amount thereof. Indeed, Sciambra explicitly declined to address a “limited success” argument
because it was not timely made. /d. at 417. United States Football League v. National Football
League, 887 F.2d 408 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed. 2d
1022 (1990), does state that the nominal damages received “does not affect the entitlement to an
award,” but it also states that limited results “may be a factor used in reducing a fee award.”
(emphasis added).
LP&L also urges us to affirm the district court’s award because a fee award need not be
proportional to the damages to be reasonable. See Meineke Discount Muffler v. Jaynes, 999 F.2d
120, 126 (Sth Cir. 1993) (“[T]he disparity of these amounts . . . alone will not support a reversal . .
..”). The issue here, however, is not whether the award should be reversed because it is dispro-
portional, but whether it is reasonable in light of all factors, one of which is the degree of success
obtained.
A-19
respect: LP&L failed to recover at all from several defendants; and if the
district court considered this facet of this shortfall in LP&L’s success, it did
not clearly indicate that it did so. See supra n. 15. Nevertheless, we are not
prepared to find that the district court failed to consider LP&L’s relatively
limited success; neither are we prepared to hold that the court abused its
discretion in refusing to reduce LP&L’s lodestar further to reflect less than
total success, either monetarily or against all defendants. We find important
the fact that degree of success is but one of 12 Johnson factors, and that in
our deferential testing of the discretion of the court we look only to consid-
eration of that factor without requiring that a reduction in lodestar necessar-
ily follow. We, therefore affirm the district court’s handling of limited suc-
cess and its effect-or lack thereof -on the lodestar factor in this case.
Fischbach also asserts generally that the district court failed to con-
sider sufficiently other Johnson factors. A district court’s Johnson analy-
sis, however, need not be meticulously detailed to survive appellate review:
“If the district court has articulated and clearly applied the criteria... ,
we will not require the trial court’s findings to be so excruciatingly ex-
plicit in this area of minutiae that decisions of fee awards consume more
paper than did the cases from which they arose.” Blanchard, 893 F.2d at
89; see also Longden v. Sunderman, 979 F.2d 1095, 1100 (Sth Cir. 1992)
(finding no abuse when district court discussed each factor); Cobb v.
Miller, 818 F.2d 1227, 1232 (Sth Cir. 1987) (refusing to reverse award
when, although district court did not analyze every Johnson factor, the
“district court has utilized the Johnson framework as the basis of its analy-
sis, has not proceeded in a summary fashion, and has arrived at an amount
that can be said to be just compensation”) . As in the instance of the
limited success factor, the district court did not abuse its discretion when it
A- 20
refused to reduce the lodestar further on the basis of its consideration of the
other Johnson factors.
C
Fischbach next contends that the district court should have
awarded postjudgment interest only from the date of the order quantify-
ing the fee award, rather than from the date of the underlying judgment.
28 U.S.C.§ 1961 (1988) provides that postjudgment “interest shall be
calculated from the date of the entry of the judgment . . . .” The question
here is whether the judgment on the merits or the supplemental judgment
verifying the fee award should be used. In Copper Liquor, Inc. v. Adolph
Coors Co., 701 F.2d 542 (Sth Cir. 1983) (en banc), we stated:
The relevant judgment for purposes of determining when in-
terest begins to run is the judgment establishing the right to
fees or costs, as the case may be. . . . If, as in the usual course,
the amount of costs is later determined by the clerk, interest
will nonetheless run from the date of the judgment allowing
costs either expressly or by legal implication. Ifa judgment
is rendered that does not mention the right to attorneys’ fees,
and the prevailing party is unconditionally entitled to such
fees by statutory right, interest will accrue from the date of
judgment.
Id. at 544-45.
In Kaiser Aluminum & Chemical Corp. v. Bonjorno,®> the Su-
preme Court refused to calculate interest from the date of an original
judgment that was invalidated because it was not supported by the evi-
dence. 494 U.S. at 835-36, 110 S. Ct. at 1576. “Where the judgment on
damages was not supported by the evidence, the damages have not been
7” Because LP&L recovered under a mandatory fee shifting statute, it became
entitled to fees on the date of judgment on the merits.
” 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990).
A- 21
‘ascertained’ in any meaningful way.” /d. Fischbach contends that, because
attorneys’ fees are not quantified at the time of the judgment on the merits,
Kaiser must have overruled Copper Liquor. Since Kaiser, three Circuits
have addressed this issue. The Seventh and Tenth Circuits held that Kaiser
does supersede Copper Liquor.” The Eighth Circuit disagreed,”’ deciding
that Kaiser did not squarely address the issue in Copper Liquor. Jenkins,
931 F.2d at 1276 n.3. We agree with the Eighth Circuit. Because the earlier
judgment in Kaiser was invalid, the party had no entitlement to damages on
that date. Thus, the reasoning in Kaiser is consistent with Copper Liquor's
mandate that interest should not accrue until the party becomes entitled to
the award. Indeed, Copper Liquor and Kaiser are consistent in that in nei-
ther case does interest accrue for amounts later reversed. See Copper Li-
quor, 701 F.2d at 545 (“Ifa judgment for attorneys’ fees is later modified
by the district court or an appellate court, whether the award is increased or
reduced, interest on the revised award will run from the date of the original
judgment unless, of course, the allowance of any amount is reversed.”) . We
therefore hold that Kaiser did not overrule Copper Liquor, so that the dis-
trict court here did not err in awarding postjudgment interest from the date
of the judgment on the merits.
D
In its final challenge, Fischbach contests the award of $45,330.96
in fees for LP&L’s experts’ response to discovery. Ordinarily, recovery
of expert fees is limited to the statutory amounts authorized under 28
- Midamerica Fed. Sav. & Loan Ass'n v. Shearson/American Express, Inc.,
962 F.2d 1470, 1476 (10th Cir. 1992) (stating that “[k]ey to the Kaiser holding is the date damages
are ‘ascertained’ in a meaningful way”); Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990)
Gaeeng: interest from date of award of fees).
Jenkins v. Missouri, 931 F.2d 1273, 1276-77 (8th Cir.) (adopting Copper
Liquor rule), cert. denied, U.S.__112 S. Ct. 338, 116 L. Ed. 2d 278 (1991).
A-22
U.S.C. § 1821 and 1920. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 439, 107 S. Ct. 2494, 2496, 96 L. Ed. 2d 385 (1987)
(“[WJhen a prevailing party seeks reimbursement for fees paid to its own
expert witnesses, a federal court is bound by the limit of § 1821(b), ab-
sent contract or explicit statutory authority to the contrary.”); see also
West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, _,111 S. Ct.
1138, 1140-41, 113 L. Ed. 2d 68 (1991) (limiting witness fees to statu-
tory amounts, absent express statutory authority).
Rule 26(b\(4)\(c), however, provides an independent basis for recov-
ery of expert fees as part of discovery. See Fed. R. Civ. P. 26(b)(4)(c);”8
see also Chambers v. Ingram, 858 F.2d 351, 361 (7th Cir. 1988) (affirm-
ing award of Rule 26(b)(4)(c) costs as separate from § 1821 witness fees).
Accordingly, the district court correctly granted LP&L’ s request for Rule
26 (b)(4)(c) costs.
But Rule 26(b)(4)(c) applies to both parties, not just to the prevail-
ing party. The district court should also have awarded Rule 26 (b)(4)(c)
costs to Fischbach. The court considered this argument but found the
issue moot, concluding that, even if Fischbach was entitled to these costs,
LP&L could have recovered them under the fee shifting provisions of the
antitrust laws. See 15 U.S.C.§ 15 (1988) (allowing recovery of cost of
suit). We disagree.
Previously, we have allowed a prevailing antitrust plaintiff to re-
cover all expenses of the litigation. See, e.g., Copper Liquor, Inc. v. Adolph
Coors Co., 684 F.2d 1087, 1100 (Sth Cir. 1982) (holding that “the Clayton
= Rule 26(b)\(4)(c) provides:
[T}he court shall require that the party seeking discovery shall pay the expert a
reasonable fee for time spent in responding to discovery ... . Fed. R. Civ. P.
26(b\(4)(c).
A-23
Act embraces all the ordinary and reasonable expenses of litigation”), modi-
fied on other grounds on appeal after remand, 701 F.2d 542 (Sth Cir. 1983).
In West Virginia University Hospitals, Inc. v. Casey,’ however, the Su-
preme Court ruled that a prevailing plaintiff cannot recover expert fees un-
der a fee shifting statute unless the statute expressly provides for the recov-
ery of expert fees. 499 U.S. at__, 111 S. Ct. at 1141-43 (absent specific
statutory authorization, shifting of attorneys’ fees does not include expert
witness fees). We therefore conclude that expert fees are Rule 26(b)(4)(c)
costs and are not recoverable under Casey. Consequently, we reverse the }
district court’s denial of Fischbach’s entitlement to recover Rule 26(b)(4)(c)
costs. And, as Fischbach documented its costs and LP&L did not refute the
quantum, we render judgment in favor of Fischbach and against LP&L in
the requested amount of $10,994.21 for Fischbach’s expert witness expenses.
The Comstock Appeal: |
Comstock challenges several elements of the district court’s final q
award of costs and fees. First, it contests the denial of Rule 68 fees. ;
Second, Comstock disputes the final assessment of certain elements of /
the taxation of costs. Last, it insists that the district court neglected to j
award fees and costs that Comstock incurred in connection with the in- |
stant fee and costs portion of the suit.
A
Comstock argues that the district court erred in ruling that it should ]
not recover fees and costs from LP&L under Rule 68 of the Federal Rulesof
Civil Procedure. Interpretation of Rule 68 is an issue of law which we |
review de novo. Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1404 (10th
- 499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).
A- 24
Cir. 1993); Erdman v. Cochise County, 926 F.2d 877, 879 (9th Cir. 1991).
Rule 68 states:
At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against the
defending party.... If within 10 days after the service of the
offer the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and there-
upon the clerk shall enter judgment .... If the judgment fi-
nally obtained by the offeree is not more favorable than the
offer the offeree must pay the costs incurred after the mak-
ing of the offer....
Fed. R. Civ. P. 68.
The purpose of Rule 68 is to encourage the settlement of litigation
by providing an incentive to settle “in those cases in which there is a strong
probability that the plaintiff will obtain a judgment but the amount of the
recovery is uncertain.” Delta Airlines, Inc. v. August, 450 U.S. 346, 352,
101 S. Ct. 1146, 1150, 67 L. Ed. 2d 287 (1981). Rule 68 requires a pre-
vailing plaintiff to pay the costs of litigation “in the single circumstance
where the plaintiff does not accept the defendant’s offer of judgment which
is more favorable than the judgment the plaintiff ultimately obtains.”
Johnston v. Penrod Drilling Co. , 803 F. 2d 867, 869 (Sth Cir. 1986) Con-
sequently, when a plaintiff rejects a Rule 68 offer of judgment, “he will lose
some of the benefits of victory if his recovery is less than the offer.” Delta,
450 US. at 352, 101 S. Ct. at 1150.
If a plaintiff takes nothing, however, Rule 68 does not apply. In
Delta Airlines, Inc. v. August, the Supreme Court limited Rule 68 to
- 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981).
A- 25
cases in which a plaintiff obtains a judgment against the defendant; the rule
is not applicable when a defendant actually prevails over the plaintiff. See
450 US. at 351-52, 101 S. Ct. at 1149-50 (finding Rule 68 “simply inap-
plicable to this case because it was the defendant that obtained the judg-
ment”) ; see also Landon v. Hunt, 938 F.2d 450, 452 n.1 (3d Cir. 1991)
(commenting that defendant could not recover under Rule 68 when plaintiff ’s
claim was dismissed); Allen v. United States Steel Corp., 665 F.2d 689, |
697 (Sth Cir. 1982)(refusing Rule 68 costs to a defendant who prevailed).
The Court noted that costs are usually assessed against a losing plaintiff as
a normal incident of defeat but that this exception is created so that “a
nonsettling plaintiff does not run the risk of suffering additional burdens
that do not ordinarily attend to a defeat... .” 450 U.S. at 352, 101 S. Ct. at
1150.
Comstock contends that it should recover Rule 68 costs because,
instead of a take nothing judgment, LP&L recovered $500,000. Comstock
argues that Delta is inapplicable because LP&L was not defeated, and it
should lose some of the “benefits of victory” for failing to accept
Comstock’s reasonable offer of judgment.
Here, plaintiff LP&L’s recovery was against other defendants, how-
ever; plaintiff LP&L took nothing against defendant Comstock. In other
words, defendant Comstock actually prevailed totally against plaintiff LP&L.
Comstock has not presented any argument that would compel a Rule 68
comparison of its offer of judgment to LP&L and the judgment that LP&L
obtained against other defendants. Rule 68 operates by comparing two clearly
defined amounts. Johnston, 803 F.2d at 870. This comparison is of the
“money or property,” including “costs then accrued,” set out in the offer
and the “judgment finally obtained by the offeree.” Fed. R. Civ. P. 68.
A - 26
Accordingly, Rule 68 compares the amount of an offer of judgment,
whether made by one defendant or jointly made by multiple defendants,”'
and the amount of the judgment, if any, taken by the offeree against the
offeror or offerors. If no judgment is taken by the offeree plaintiff against
the offeror defendant or joint offeror defendants, the Delta rule applies.
Comstock made an offer of judgment to LP&L, and LP&L took
nothing against Comstock. LP&L’s recovery against other non-offeror de-
fendants - none of which were joint offerors with Comstock - is irrelevant to
the Rule 68 inquiry. Consequently, Comstock cannot recover its fees under
Rule 68.”
B
Additionally, Comstock challenges the district court’s approval of
the clerk of court’s final taxation of costs against LP&L, arguing that the
clerk erroneously struck certain items. We will not overturn the district
court’s taxation of costs absent a clear abuse of discretion. Nissho-Iwai
Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1551 (Sth Cir. 1984);
Studiengesellschaft Kohle mbh v. Eastman Kodak Co., 713 F.2d 128, 131
(5th Cir. 1983). Although Rule 54(d) of the Federal Rules of Civil Proce-
dure directs a district court to award costs to a prevailing party,*’ that court
- We have previously encountered the question whether recovery against one
defendant may apply to a Rule 68 determination with respect to another defendant-offeror. In
Johnston v. Penrod Drilling Co., 803 F.2d 867, 870 (Sth Cir. 1986), two defendants made an
unapportioned joint offer of judgment to the plaintiff. We vacated the district court’s decision
because it had not included the settlement against the first defendant in the Rule 68 calculation for
the second defendant. Johnston is distinguishable, however, because the settlement was made with
a joint offeror, not with an unrelated defendant.
= Comstock also appealed the district court’s finding that its Rule 68 offer of
judgment was not timely. Our decision regarding the applicability of Delta renders that issue moot.
= Rule 54(d) provides:
Except when express provision therefor is made either in a statue of the United
States or in these rules, costs other than attorneys’ fees shall be allowed to the
A-27
cannot award any costs not authorized by statute. “[E]xpenditures for those
categories of expenses listed in 28 U.S.C. § 1920 may be recovered only if
they are allowed by that section. Copper Liquor, Inc. v. Adolph Coors Co.,
684 F.2d 1087, 1101 (Sth Cir. 1982). Section 1920 provides:
A judge or clerk of any court of the United States may tax as
costs the following:
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers nec-
essarily obtained for use in the case;
28 U.S.C. 1920 (1988). Moreover, “[i]tems proposed by winning parties as
costs should always be given careful scrutiny.” Farmer v. Arabian Ameri-
can Oil Co., 379 U.S. 227, 235, 85 S. Ct. 411, 416, 13 L. Ed. 2d 248
(1964) .
Comstock first contends that the district court erred when it refused
to allow witness fees for each day that two of its experts attended the trial.»
It is true that a party may recover witness fees not only for days on which the
witness testified, but also for days spent attending the trial beforehand.
See Nissho-Iwai, 729 F.2d at 1552-53 (allowing fees for days prior to
witnesses’ testimony). Fees for these preliminary days are limited, how-
ever, to days that witnesses spend holding themselves available to testify.
See Hurtado v. United States, 410 U.S. 578, 584, 93 S. Ct. 1157, 1161,
35 L. Ed. 2d 508 (1973)(allowing fees for days spent “in readiness to
prevailing party unless the court otherwise directs... .
Fed. R. Civ. P. 54 (d).
a Comstock’s experts, David Pike and E.J. Janik, attended 38 and 11 days of
trial, respectively. Pike testified on three days, and Janik testified on one day. The district court
actually granted five days for Pike and three days for Janik. This equated to the number of days
spent testifying plus travel before and after.
A- 28
testify”); Nissho-Iwai, 729 F.2d at 1552 (granting fees for days witness
expected to, but did not actually, testify). The district court approved its
clerk’s determination that only a portion of the days Pike and Janik at-
tended the trial were expended in the expectation that they would testify
on those days. We find no abuse of discretion in this decision.
Comstock next insists that the district court should have allowed
recovery of the costs of defendants’ trial exhibits. A district court may
authorize the production of trial exhibits if so doing would “facilitate the
just, speedy, and inexpensive disposition of the action.” Fed. R. Civ. P.
16(c)(16); see also Johns-Manville Corp. v. Cement Asbestos Prods. Co.,
428 F.2d 1381, 1385 (Sth Cir. 1970) (looking to Rule 16 for pretrial au-
thorization of models and charts). Absent pretrial approval of the exhib-
its, however, a party may not later request taxation of the production
costs to its opponent. Johns-Manville, 428 F.2d at 1385; see also
Studiengesellschaft, 713 F.2d at 133 (reversing award of exhibit costs
where party had not obtained pretrial authorization). Comstock asserts
that the pretrial order authorized the production of its exhibits by requir-
ing exhibits to be “exchanged prior to trial in accordance with this or-
der.” We find no such authorization in this language: Requiring the ex-
change of exhibits prior to trial does not imply authorization of produc-
tion of those exhibits. Accordingly, the district court did not err in deny-
ing recovery by Comstock of the costs of its exhibits.
Comstock also challenges the district court’s affirmance of the
clerk of court’s valuation of Comstock’s allowable photocopying charges.
On this claim Comstock presents virtually no legal argument; instead, it
simply alleges conclusionally that both the clerk and the district court
abused their discretion. After reviewing the record, we find that the clerk
A-29
of court carefully assessed each item in the request. Consequently, we find
no abuse of discretion by either the clerk or the district court.
And, like Fischbach, Comstock challenges the district court’s si-
: multaneous award of Rule 26(b)(4)(c) costs to LP&L and denial of the
same costs to Comstock. It submitted requests for its share of such cost
in the sum of $7,254.98; and although LP&L contests the timeliness of
Comstock’s request and complains in a conclusionary manner that
Comstock overstated its claim and failed to offer evidence of its method
of calculation, the dollar amount itself is not truly disputed. We have
already discussed Rule 26(b)(4) (c) in our review of Fischbach’s appeal,**
and that analysis applies here as well. Comstock is thus entitled to these
costs in the amount requested.
LP&L responds that, even if Comstock is allowed recovery of
Rule 26(b)(4)(c) costs, its request for these costs was not timely under
Local Rule 5.04E.* Comstock timely filed its original application for
taxation of costs, but did not add its request for Rule 26 costs until nine
months later. Although Local Rule 5.04E imposes a thirty day limit on
cost applications and supporting memoranda, this rule specifically refers
to costs recoverable by “the party in whose favor judgment is rendered.”
Fed. Local Ct. Rules, E.D. La., Rule 5.04E. We have already noted that
Rule 26(b)(4)(c) costs are not limited to prevailing parties; and we hold
that Rule 26(b)(4)(c) fees do not fall within the kinds of costs covered by
- See supra Part II (Fischbach Appeal), D.
” Local Rule 5.04E provides:
Within thirty days after receiving notice of entry of judgment, unless otherwise
ordered by the court, the party in whose favor judgment is rendered and who
claims and is allowed costs, shall . . . file with the Clerk a notice of application to
have the costs taxed... .
Fed. Local Ct. Rules, E.D. La., Rule 5.04E.
A - 30
Local Rule 5.04E. See also Chambers, 858 F.2d at 360-61 (“The advisory
committee notes to Rule 26(b)(4)(c) state that the court may issue an order
to pay fees as a condition to discovery ‘or it may delay the order until after
discovery.”” (quoting Fed. R. Civ. P. 26 (b)(4)(c))). Accordingly, we hold
that the district court improperly denied Comstock’s Rule 26 (b)(4)(c) re-
quest and render judgment in favor of Comstock and against LP&L in the
sum of $7,254.98 to cover those items.*’
C
Comstock’s last contention is that the district court erred when it
refused to award costs and fees to Comstock for pursuing its cost applica-
tion. A district court may award costs and fees for time spent litigating a
cost or fee request. See Alberti v. Klevenhagen, 896 F.2d 927, 937-38 (Sth
Cir.) (affirming taxation of costs for expenses solely related to fee litiga-
tion), vacated on other grounds, 903 F.2d 352 (Sth Cir. 1990). We shall
not, however, disturb a district court’s decision regarding fees for cost
recovery litigation absent an abuse of discretion. See id.; see also Chemi-
cal Mfrs. Ass'n v. U.S.E.P.A., 885 F.2d 1276, 1283 (Sth Cir. 1989) (ap-
proving compensation for time spent on fee application because amount
was within district court’s discretion); Spray-Rite Serv. Co. v. Monsanto
Co., 684 F.2d 1226, 1250 (Sth Cir. 1982)(affirming district court’s dis-
cretion in awarding fees and costs for time spent litigating its right to
fees). Comstock recovered only part of the costs and fees it requested. In
challenging Comstock’s request, LP&L too was only partially success-
ful. Refusing to tax fees and costs for the instant cost litigation fell well
sad We do not mean to imply that, under all circumstances, a party may file a
request for Rule 26(b)\(4)(c) costs nine months after judgment on the merits. The record reflects
multiple changes and disputes about the fees extending over a period of many months. Accord-
ingly, we merely hold that on the specific facts of this case, Comstock may recover its Rule
26(b\4\(c) costs.
A-3l
within the district court’s proper exercise of its discretion.
i
For the foregoing reasons, we affirm the district court’s determi-
nation of LP&L’s reasonable hourly rates for its attorneys, but we modify
the district court’s determination of LP&L’s reasonable hours, reducing
by 10% the specific portions of those fees challenged by Fischbach as
inadequately detailed, and eliminating entirely the portion of the district
court’s award that allowed $6,465.00 in fees for Attorney Madigan. We
also affirm the district court’s (1) 15% overstaffing reduction of LP&L’s
lodestar amount; (2) award of postjudgment interest from the date of the
judgment on the merits; (3) award to LP&L of costs (including Rule
26(b)(4)(c) costs, other expenses, and fees for other attorneys). Further,
we affirm the district court’s award of attorneys’ fees to Comstock and
its denial of Rule 68 costs to Comstock, and we affirm the quantum of
the district court’s costs taxation to Comstock; but we reverse the district
court’s denial of Rule 26 (b)(4)(c) costs to Fischbach and to Comstock,
and render judgment therefor against LP&L and in favor of Comstock in
the amount of $7,254.98, and in favor of Fischbach in the amount of
$10,994.21.
As modified, the award to LP&L against Fischbach is as follows:
Original fee request: $4,327,276.30
10% reduction - inadequate documentation: (35,206.50)
Fees disallowed for Attorney Madigan (6,465.00)
- Percentage reduction applicable to (1) $115,070 reflected in quarterly sum-
maries for period from February 1986 to July 1987; (2) $154,080 reflected in month-end summa-
ries for two attorneys during 1987 and 1988; and (3) $82,915 for charges in November and De-
cember 1988, for which no time records were submitted, totaling in the aggregate $352,065.00.
A - 32
Lodestar $4,285,604.80
15% reduction - overstaffing:*” (642,840.72)
Reasonable Attorneys Fees: $3,642,764.08
Costs $172,246.61
Other expenses 322,876.90
Fees for other attorneys 9,585.36
GROSS AWARD: $4,147,472.95
LESS: Rule 26 costs from LP&L to Fischbach (10,994.21)
Net Award: LP&L against Fischbach $4,136,478.74
In conclusion we hereby enter judgment in the net sum of
$4,136,478.74, plus postjudgment interest, against Fischbach and in favor
of LP&L; and we increase the district court’s judgment against LP&L and
in favor of Comstock by $7,254.98 for its Rule 26 costs.
” This reduction was imposed by the district court.
A - 33
AFFIRMED in part; MODIFIED and, as modified, AFFIRMED in part;
and REVERSED and RENDERED in part.
A - 34
EMILIO M. GARZA, Circuit Judge, concurring in part, and dissenting in
part:
I concur in the above opinion with the exception of Part II.B. In my
view, the district court applied the wrong legal standard and abused its dis-
cretion in refusing to adjust the lodestar for LP&L’s limited success. The
district court stated that “recovery of the[] reasonable attorney’s fees must
be sustained regardless of the amount of damages awarded, and explained
that cases such as Farrar v. Hobby, US._, _, 113 S. Ct. 566,
574, 121 L. Ed. 2d 494 (1992)(calling the degree of success the most
crucial element in determining the amount of a reasonable fee) , and
Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 1943, 76 L.
Ed. 2d 40 (1983) (“A reduced fee award is appropriate if the relief, how-
ever significant, is limited in comparison to the scope of the litigation as
a whole.”), did not apply to mandatory fee statutes.' Accordingly, the
district court did not even consider the magnitude of LP&L’s success.’ The
Supreme Court explicitly has dictated otherwise: Farrar and Hensley ap-
ply to all cases.*? Because the district court failed to apply the correct legal
standard, I would reverse. Moreover, in my view, a recovery of less than
' See supra, per curiam opinion, text accompanying note 21.
. The majority finds this statement “puzzling” and suggests that the district court
did consider the magnitude of LP&L’s success. The district court, however, only “considered”
LP&L’s limited success as a threshold question, that is, whether a mandatory fee statute permits
any consideration of limited success. Because the district court answered this question “no,” it
never reached the question of whether to “act on [the limited success].” It is the failure to reach this
secondary question which I challenge and to which I refer here.
, See supra per curiam opinion, text accompanying notes 22-23, explaining that
the district court’s ruling confuses the right to recover fees with the determination of the amount of
that fee, and that a finding of significant result alone does not satisfy the district court’s duty to
evaluate the magnitude of that result. As in Hensley, the district court’s finding that LP&L’s
success was significant “does not answer the question of what is ,reasonable, in light of that level of
success.” 461 U.S. at 439, 103 S. Ct. at 1942.
A - 35
five percent of the damages requested and against only two of twelve defen-
dants warrants some reduction of fees. For these reasons, I would hold that
the district court abused its discretion in refusing to reduce the lodestar, and
either remand to the district court to apply the proper standard and to deter-
mine what percentage reduction, if any, is warranted by the record’s demon-
stration of LP&L’s limited success, or, alternatively, reduce the lodestar by
an additional twenty percent. Because the per curiam opinion affirms the
district court’s ruling on this point, I respectfully dissent.
APPENDIX B
2156U
417/13117
92072202
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA POWER & LIGHT COMPANY * CIVIL ACTION
*
VERSUS * NO. 86-0594
a
FISCHBACH AND MOORE, INC., FISCHBACH * SECTION “E”
CORPORATION, THE HOWARD P. FOLEY COMPANY, *
INC., L. K. COMSTOCK & COMPANY, INC., * MAGISTRATE 3
LKC, INC., COMMONWEALTH ELECTRIC ‘a
COMPANY, INC., COMMONWEALTH COMPANIES, x
INC., LORD ELECTRIC COMPANY, INC., . FILED JUL 22
and E.C. ERNST, INCORPORATED . 10 59 AM ‘92
SESS eee eeeeeeeeeeees
OFFER OF JUDGMENT
TO: MONROE & LEMANN
201 St. Charles Avenue
Suite 3300
New Orleans, Louisiana 70170-3300
Attorneys for Louisiana Power & Light Company
Pursuant to Rule 68 of the Federal Rule of Civil Procedure, de-
fendants, L.K. COMSTOCK & COMPANY, INC. and LKC, INC.
hereby offer to allow judgment to be taken against them in this action, in
the amount of One Hundred and Fifty Thousand Dollars ($150,000.00)
which sum includes: 1) interest, 2) all plaintiffs’ costs accrued to date and
3) all reasonable attorney’s fees to which the plaintiffs would be entitled.
This offer of judgment is made for the purposes specified in Federal Rules
of Civil Procedure Rule 58, and is not to be construed either as an admis-
B-1
sion that the defendants are in any respect liable in this action, or that the
plaintiff has suffered any damage.
Respectfully submitted:
Joel B. Cutler
MURTAGH, COHEN & BYRNE
1100 Franklin Avenue, Suite 303
Garden City, New York 11530
Telephone: (516) 747-1000
CO-COUNSEL FOR L.K. COMSTOCK & —
COMPANY, INC. AND LKC, INC.
Signed By Robert A. Kutcher
Robert A. Kutcher, Bar No. 7895
Ashley L. Belleau, Bar No. 14077
- BRONFIN & HELLER
650 Poydras Street, Suite 2500
New Orleans, Louisiana 70130-6101
Telephone: (504) 568-1888
CO-COUNSEL FOR L.K. COMSTOCK &
COMPANY, INC. AND LKC, INC.
CERTIFICATE
I hereby certify that a copy of the above and foregoing has been forwarded
to all counsel of record by mailing same, postage prepaid,
this 22 day of July, 1992.
Signed By Robert A. Kutcher
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA POWER & LIGHT CO. CIVIL ACTION
versus NO. 86-0594
SECTION: E/6
FISCHBACH AND MOORE, INC.,
FISCHBACH CORP.,
L. K. COMSTOCK, INC.,
LKC, INC.
COMMONWEALTH ELECTRIC CO.
COMMONWEALTH COMPANIES, INC.
THE HOWARD P. FOLEY CO.
JOHN D. KEYS
LEWIS E. EASTHAM
J. R. STURGILL, JR.
PAUL M. MURPHY
FRANCIS S. KELLSTROM
INTERROGATORIES TO THE JURY
l. DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT A DEFENDANT VIOLATED THE FEDERAL ANTI-
TRUST LAWS (SHERMA ACT) BY CONSPIRING TO RIG
THE AWARD OF THE ELECTRICAL CONTRACT OF THE
WATERFORD 3 PROJECT, CAUSING PLAINTIFF DAMAGE?
YES X NO
IF YOUR ANSWER TO QUESTION NO. 1 IS YES PLEASE
ANSWER QUESTION NO. 2. IF YOUR ANSWER TO QUES-
TION NO. 1 IS NO PLEASE SKIP QUESTION NO. 2 AND
C-1
PROCEED TO QUESTION NO. 3.
WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF THE FEDERAL ANTITRUST LAWS?
A) FISCHBACH AND MOORE, INC. YES X NO
B) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO
D) COMMON WEALTH COMPANIES, INC. YES NO X
E) THE HOWARD P. FOLEY CO. YES X NO
F) JOHN D. KEYS YES NO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
1) PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES X NO
PLEASE PROCEED TO QUESTION NO. 3.
DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT ANY DEFENDANT VIOLATED THE LOUISIANA
STATE ANTITRUST LAWS BY CONSPIRING TO RIG THE
AWARD OF THE ELECTRICAL CONTRACT OF THE
WATERFORD 3 PROJECT, CAUSING PLAINTIFF DAMAGE?
YES X NO
IF YOUR ANSWER TO QUESTION NO. 3 IS YES PLEASE
PROCEED TO QUESTION NO. 4. IF YOUR ANSWER TO
QUESTION NO. 3 IS NO PLEASE SKIP QUESTION NO. 4
AND PROCEED TO QUESTION NO. 5.
WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF THE LOUISIANA STATE ANTITRUST LAWS?
A) FISCHBACH AND MOORE, INC. YES X
B) L.K. COMSTOCK, INC. YES
C) COMMONWEALTH ELECTRIC CO. YES X
D) COMMONWEALTH COMPANIES, INC. YES
E) THE HOWARD P. FOLEY CO. YES X
F) JOHN D. KEYS YES
G) LEWIS E. EASTHAM YES
H) J.R. STURGILL, JR. YES
I) PAUL M. MURPHY YES
J) FRANCIS S. KELLSTROM YES X
PLEASE PROCEED TO QUESTION NO. 5.
NO
NO X
NO
NO X
NO
NO X
NO X
NO X
NO X
NO
DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT ANY DEFENDANT VIOLATED SEC. 1962(c) OF THE
FEDERAL RACKETEER INFLUENCED AND CORRUPT OR-
GANIZATIONS ACT (RICO) BY KNOWINGLY AND WILL
FULLY CONDUCTING OR PARTICIPATING, DIRECTLY OR
INDIRECTLY IN THE CONDUCT OF THE AFFAIRS OF AN
ENTERPRISE ENGAGED IN, OR THE ACTIVITIES OF
WHICH AFFECTED INTERSTATE OR FOREIGN COM-
MERCE, THROUGH A PATTERN OF RACKETEERING ACT-
IVITY, WHILE EMPLOYED BY OR ASSOCIATED WITH
SUCH ENTERPRISE, CAUSING PLAINTIFF DAMAGE?
C-3
YES X NO
IF YOU ANSWERED YES TO QUESTION NO. 5 PLEASE
PROCEED TO QUESTION NO. 6. IF YOU ANSWERED NO
TO QUESTION NO. 5 PLEASE SKIP QUESTION NO. 6 AND
PROCEED TO QUESTION NO. 7.
WHICH OF THE DEFENDANTS DO YOU FIND IN VIOLA-
TION OF SEC. 1962(c)?
A) FISCHBACH AND MOORE, INC. YES X NO
S) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO
D) COMMONWEALTH COMPANIES, INC. YES NO X
E) THE HOWARD P. FOLEY CO. YES X NO
F) JOHN D. KEYS YES NWO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
I)PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES X NO
PLEASE PROCEED TO QUESTION NO. 7
DO YOU FIND FROM A PREPONDERANCE OF THE EVI-
DENCE THAT ANY DEFENDANT VIOLATED SEC. 1962(d)
OF THE RICO ACT BY ENTERING INTO A CONSPIRACY
WITH ANY OTHER PERSON OR CORPORATION TO CON-
DUCT OR PARTICIPATE, DIRECTLY OR INDIRECTLY, IN
THE CONDUCT OF THE AFFAIRS OF AN ENTERPRISE
C-4
WHICH WAS ENGAGED IN, OR THE ACTIVITIES OF
WHICH AFFECTED INTERSTATE COMMERCE OR FOR-
EIGN COMMERCE THROUGH A PATTERN OF RACKET-
EERING ACTIVITY, WHILE EMPLOYED BY OR ASSO-
CIATED WITH SUCH ENTERPRISE, CAUSING PLAINTIFF
DAMAGE?
YES X NO
IF YOUR ANSWER TO QUESTION NO. 7 IS YES PLEASE
PROCEED TO QUESTION NO. 8. IF YOUR ANSWER TO
QUESTION NO. 7 IS NO PLEASE SKIP QUESTION NO. 8
AND PROCEED TO QUESTION NO. 9.
8. WHICH OF THE DEFENDANTS DO YOU FIND IN
VIOLATION OF SEC. 1962(d)?
A) FISCHBACH AND MOORE, INC. YES X NO
B) L.K. COMSTOCK, INC. YES NO X
C) COMMONWEALTH ELECTRIC CO. YES X NO
D) COMMONWEALTH COMPANIES, INC. YES NO X
E) THE HOWARD P. FOLEY CO. YES X NO
F) JOHN D. KEYS YES NO X
G) LEWIS E. EASTHAM YES NO X
H) J.R. STURGILL, JR. YES NO X
I) PAUL M. MURPHY YES NO X
J) FRANCIS S. KELLSTROM YES NO X
IF YOUR ANSWERS TO QUESTIONS 1, 3, 5 AND 7 ARE NO PLEASE
DATE AND SIGN THIS FORM AND HAND IT TO THE MARSHAL
—
C-5
AND ADVISE HIM THAT YOU HAVE REACHED A VERDICT. IF
YOU ANSWERED YES TO QUESTIONS 1, 3, 5OR7 PLEASE
PROCEED TO QUESTION NO. 9.
9. DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE
THAT DEFENDANTS FRAUDULENTLY CONCEALED
THEIR BID RIGGING OF THE ELECTRICAL CONTRACT OF
THE WATERFORD 3 PROJECT SO THAT PRIOR TO FEBRU-
ARY 7, 1982 LP&L DID NOT KNOW OR WAS UNABLE TO
DISCOVER BY THE EXERCISE OF DUE DILIGENCE THAT
THE CONTRACT WAS RIGGED AND THAT IT MAY HAVE
SUFFERED DAMAGE AS A RESULT?
‘YES X NO
IF YOUR ANSWER TO QUESTION NO. 9 IS NO PLEASE
DATE AND SIGN THIS FORM AND HAND IT TO THE MAR-
SHAL AND ADVISE HIM THAT YOU HAVE REACHED A
VERDICT. IF YOUR ANSWER TO QUESTION NO. 9 IS YES
PLEASE PROCEED TO QUESTION NO. 10.
10. ._DOYOUFINDBY A PREPONDERANCE OF THE EVIDENCE
THAT DEFENDANTS FRAUDULENTLY CONCEALED
THEIR BID RIGGING OF THE ELECTRICAL CONTRACT OF
THE WATERFORD 3 PROJECT SO THAT PRIOR TO
FEBRUARY 7, 1985 LP&L DID NOT KNOW OR WAS
UNABLE TO DISCOVER BY THE EXERCISE OF DUE
DILIGENCE THAT THE CONTRACT WAS RIGGED AND
THAT IT MAY HAVE SUFFERED DAMAGE AS A RESULT?
Te 06lCUW SS
C-6
PLEASE PROCEED TO QUESTION NO. 11.
11. DOYOUFIND BY A PREPONDERANCE OF THE EVIDENCE
THAT FISCHBACH CORPORATION WAS ESTABLISHED
FOR FRAUDULENT PURPOSES SUCH THAT IT MAY BE
HELD LIABLE FOR ANY BID RIGGING COMMITTED BY
FISCHBACH AND MOORE, INC.?
YES X NO
PLEASE PROCEED TO QUESTION NO. 12.
12. DOYOUFINDBY A PREPONDERANCE OF THE EVIDENCE
THAT LKC, INC. WAS ESTABLISHED FOR FRAUDULENT
PURPOSES SUCH THAT IT MAY BE HELD LIABLE FOR
ANY BID RIGGING COMMITTED BY L. K. COMSTOCK,
INC.?
YES NO X
PLEASE PROCEED TO QUESTION NO. 13.
13. |. WHAT AMOUNT OF DAMAGES, IF ANY, DO YOU FIND BY
A PREPONDERANCE OF THE EVIDENCE THAT LP&L
SUSTAINED AS A RESULT OF THE VIOLATIONS OF
FEDERAL AND OR STATE LAWS?
$500,000.00
NEW ORLEANS, LOUISIANA, THIS_24_ DAY OF September 1992.
Sioned By Amelia B. Jol
FOREPERSON
j C-7
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA POWER & LIGHT CO.
versus CIVIL ACTION
FISCHBACH AND MOORE, INC., NO. 86-0594
FISCHBACH CORP.,
L. K. COMSTOCK, INC., SECTION: E/6
LKC, INC.
COMMONWEALTH ELECTRIC CO.
COMMONWEALTH COMPANIES, INC. FILED SEP 25
THE HOWARD P. FOLEY CO. 10 33 AM ‘92
JOHN D. KEYS
LEWIS E. EASTHAM
J. R. STURGILL, JR.
PAUL M. MURPHY
FRANCIS S. KELLSTROM
JUDGMENT
Considering the record, the answers by the jury to the interrogato-
ries propounded to it by the Court, the direction of the Court as to entry of
Judgment, and the law, for the reasons assigned,
IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment in favor of plaintiff Louisiana Power & Light Co., and against
defendants Fischbach and Moore, Inc., Fischbach Corporation, Common-
wealth Electric Co., The Howard P. Foley Co., and Francis S. Kellstrom,
in the true sum of ONE MILLION FIVE HUNDRED THOUSAND(S
1,500,000.00) DOLLARS, with interest from the date of judgment, the
cost of suit, including a reasonable attorney’s fee;
D-1
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that there be judgment in favor of defendants L. K. Comstock, Inc., LKC,
Inc., Commonwealth Companies, Inc., John D. Keys, Lewis Z. Eastham,
J.R. Sturgill, Jr., and Paul M. Murphy, and against plaintiff, Louisiana
Power & Light Co., DISMISSING plaintiff's complaint at its cost.
Néw Orleans, Louisiana, this 25 day of September, 1992.
ee ii hiatal
United States District Judge
APPENDIX E
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA POWER & LIGHT COMPANY CIVIL ACTION
versus NO. 86-0594
FISCHBACH AND MOORE, INC., et al SECTION: E/3
FILED NOV 5
9 23 AM ‘92
tion:
RULINGS ON MOTIONS
These motions have been submitted to the Court for determina-
Motion of Fischbach and Moore, Inc., for judgment as a
matter of law;
Motion of Fischbach Corporation and Francis S. Kellstrom
for judgment as a matter of law, adopting motion of
Fischbach and Moore, Inc.;
Motion of Louisiana Power & Light Company for judg-
ment as a matter of law, or alternatively, for new trial
regarding prescription of state law claims;
Renewed Motion of Fischbach Corporation after trial for
judgment as a matter of law, and/or for new trial regard
ing corporate piercing issues;
Motion of L.K. Comstock, Inc., and LKC, Inc., to amend
judgment.
Motions 1 through 4 address themselves to the factual findings
E-1
made by the jury, except for the alternative new trial requests. Consider-
ing the motions, memoranda of counsel, the trial testimony and evidence
and the law, the Court is of the opinion that the jury had sufficient evi-
dence and was appropriately instructed on the law so as to enable it to
reach the findings it made. Further, considering the matter in toto, the
Court is of the opinion that the requests for a new trial are unwarranted.
Motion 5 seeks an amendment to the judgment awarding costs,
including reasonable attorney’s fees to L. K. Comstock, Inc., and LKC,
Inc. (“the Comstock defendants”), pursuant to Rule 68. Rule 68 states, in
pertinent part:
At any time more than 10 days before the trial begins, a party
defending against a claim may, serve upon the adverse party
an offer to allow judgment to be taken against the defending
party for the money or property or the effect specified in the
offer, with costs then accrued. ... If the judgment finally
obtained by the offeree is not more favorable than the offer,
the offeree must pay the costs incurred after the making of
the offer.
Rule 68, Federal Rules of Civil Procedure.
The Comstock defendants argue that since judgment was entered
in their favor and against the plaintiff, it should be awarded costs, includ-
ing attorneys’ fees, under this rule. The judgment which was entered in
favor of the Comstock defendants and against plaintiff Louisiana Power
and Light Company awarded defendants costs as a prevailing party in
accordance with Rule 54(d).
Upon reviewing the motion, memoranda of the parties, and the
law, the Court finds that the motion should be denied on two grounds.
The first is that the offer of judgment was not timely made in accordance
with the rule and applicable jurisprudence. Rule 68 explicitly requires
E-2
that the offer be served more than 10 days before the beginning of trial.
Excluding weekends, which is required by Polk v. Montgomery County,
Maryland, 130 F.R.D. 40, 42 (D. Md.199) and two days of jury selection,
which is required by Greenwood v, Stevenson, 88 F.R.D. 225 (D.R.I. 1980),
the offer was one day late. The offer was filed and served on July 22,
1992 and opening statement began on August 5, 1992. To have been
served more than 10 days before the trial began, the offer would have had
to be served by July 21, 1992. Thus, the offer was untimely.
The second basis for denial of the motion is the holding of the
Supreme Court in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101
S.Ct. 1146 (1981). The Court there found that “it is clear that [Rule 68]
applies only to offers made by the defendant and only to judgments ob-
tained by the plaintiff’ and that it was inapplicable when it is the defen-
dant who obtains judgment in its favor. 450 U.S. at 352, 101 S.Ct. at
1150. Since here the Comstock defendants obtained judgment in their
favor, under the Delta Air Lines decision, the rule does not apply. The
defendants’ attempts to distinguish this decision amount to a distinction
with no difference.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that motions 1, 2, 3, 4, and 5 be and are hereby
DENIED.
New Orleans, Louisiana, November 4, 1992.
—
United States District Judge
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