Malin Intern. Ship Repair v. M/V Seim Swordfish

• Decision Date: 14 April 2009
• Docket Number: Civil Action No. 08-1110.
• Citation: 611 F.Supp.2d 627
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: MALIN INTERNATIONAL SHIP REPAIR & DRYDOCK, INC. v. M/V SEIM SWORDFISH et al.

611 F.Supp.2d 627

MALIN INTERNATIONAL SHIP REPAIR & DRYDOCK, INC. v. M/V SEIM SWORDFISH et al.

Civil Action No. 08-1110.

United States District Court, E.D. Louisiana.

April 14, 2009.

Scott D. Brownell, Scott D. Brownell, APLC, Covington, LA, for Malin International Ship Repair & Drydock, Inc.

R. Scott Jenkins, Richard D. Bertram, Jones Walker, New Orleans, LA, for M/V Seim Swordfish et al.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is Plaintiff Malin International Ship Repair & Drydock, Inc.'s ("Malin") Motion for Attorney's Fees (Rec.Doc.82) and Defendant Veolia ES Special Services, Inc.'s ("Veolia") Motion for New Trial and/or Motion for Amendment of Judgment (Rec.Doc.84).

PROCEDURAL HISTORY AND BACKGROUND FACTS

This maritime contract case arose out of work that Malin performed for Veolia on its chartered dive support vessel between November of 2007 and January of 2008. The work took place pursuant to an oral agreement, and the parties did not dispute that there was no written contract governing the work. The work was billed on a time and material basis, and resulted in a total invoiced amount of $1,278,846.04 under three separate invoices. After a trial of the matter before the Court, judgment was entered in favor of Malin for the outstanding amount due under the invoices, along with contractual interest and costs. In addition, the Court found that Malin was entitled to an award of attorney's fees based on the terms of its invoices providing that Veolia would be responsible for a reasonable attorney fee in the event of an action for collection on the invoices. Accordingly, the Court ordered Malin to file a properly supported motion for attorney's fees after the trial.

The present motions relate to Malin's request for and entitlement to an award of attorney's fees in this matter.

THE PARTIES' ARGUMENTS

A. Malin's Motion for Attorney's Fees

Malin seeks $79,837.75 in attorney's fees, as outlined in the attachments to its motion, for the prosecution of its claims in this matter. This amount covers several discreet stages of Malin's representation in this matter:

1) Paul Parish of the firm Holland & Knight in Tampa, Florida, was retained to advise Malin regarding its best course of action in early 2008 when the dispute regarding the invoices arose. Malin submits that Parrish's fees amounted to $5,035.00 (10.8 hours at $360/hour and 3.1 hours at $370/hour).

2) Scott Brownell, Malin's trial counsel in this matter, was retained by Malin during the arrest procedures and through the trial in February, 2009. Malin submits that Brownell's fees totalled $74,802.75 (298.85 hours at $195/hour and 78.7 hours at $210/hour).

Malin contends that the $79,837.75 total amount is reasonable, especially in light of the arrest procedures required in this case and the necessity of preparing for trial on two separate occasions due to conflicts in the Court's schedule. Furthermore, Malin notes that although the underlying legal issues were not overly complex, the trial required 10 witnesses and 2700 pages of exhibits, and involved disputes over a significant amount of work, not the least of which included the production of copious backup documentation.

In opposition, Veolia adopts its Motion for New Trial and/or Amendment of Judgment in its entirety, arguing that Malin's failure to present evidence of attorney's fees at trial precludes any such award (see below), and also addresses Malin's motion directly. First, Veolia argues that the "lodestar" method for calculating a reasonable attorney's fee is applied in the Fifth Circuit. Fender v. Zapata P'ship Ltd., 12 F.3d 480, 489 (5th Cir.1994). Under this method, the lodestar fee amount is calculated by multiplying the number of compensable hours reasonably expended by a rate considered appropriate in the relevant community. Shipes v. Trinity Inds., 987 F.2d 311, 319-20 (5th Cir.1993). However, duplicative time is not compensable. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).

Based on lodestar principles, Veolia argues that Parrish's actions in Tampa were duplicative of Brownell's work in Louisiana, especially in light of the fact that Brownell filed all the pleadings that initiated this case. Further, both Brownell and Parrish have submitted time sheets that indicate hours worked in February 2008. Thus, Veolia argues that the amounts claimed for Parrish's representation are duplicative and non-compensable. Additionally, and in the alternative, Veolia argues that Parrish's rates are excessive in light of the community standards for attorneys' fees in the relevant communities in similar cases. Specifically, Veolia argues that Parrish's rates are excessive for a maritime lien action in either Galveston (site of the dispute) or New Orleans (site of the litigation). In sum, Veolia argues that Malin has not presented evidence as to either A) the necessity of retaining two counsel in different locations for the same litigation or B) the standard rate in the relevant community for the rates charged by Parrish or Brownell. As such, Veolia argues that the amounts requested for Parrish's representation be denied, or in the alternative reduced to a $200/hour rate; and that Brownell's rate be reduced to $175/hour.

In addition, Veolia submits several specific instances of over-billing by Mr. Brownell. Specifically, Veolia contends that 18.05 hours recorded for preparing and filing a motion for summary judgment was excessive. This motion was a straightforward motion based on three invoices and backup documentation that had been previously submitted to Veolia. Veolia submits that at most the reasonable time for preparing and filing this motion would have been five hours. In addition, Veolia disputes any hours logged by Brownell for work post-dating the February 13, 2009 conclusion of the trial in this matter. Veolia contends that after a judgment in Malin's favor, no additional work could relate to collection of the invoice amounts originally sued upon. At the very least, Veolia argues that Malin is not entitled to a fee for the hours expended in preparing Malin's present motion for attorney's fees. As such, Veolia argues that all 9.2 hours of post-trial work, and at the very least the 3.9 hours recorded for preparation of the instant motion, should be denied.

Finally, Veolia argues that Malin's failure to cooperate in discovery of information related to Malin's attorney's fees should result in a reduction of any fee award. Specifically, Veolia notes that neither of the two corporate representatives of Malin were able to offer any testimony on the issue of attorney's fees at Malin's corporate deposition. In sum, Veolia argues that Malin's motion should be denied for its failure to present any evidence of attorney's fees at trial, or in the alternative, its claim for fees should be reduced to a total of $62,177.50.

In reply, Malin argues that the lodestar approach for determining a reasonable fee is not applicable in this action. See Clark v. Zapata Gulf Marine, 1992 WL 266119 (E.D.La.1992). Rather, under Clark, this case requires an analysis of the whole amount of Malin's claim, without any "[attempts] to show what would be a hypothetically reasonable amount for each and every item." Id. at *2. Further, Malin contends that the suggested rates of its counsel are actually comparatively low in relation to the New Orleans legal community, and in fact are lower than those charged by Veolia's counsel. Finally, Malin argues that the services rendered by Parrish were necessary, as Malin's president lives in Tampa and required his counsel's advice in the early stages of this case when litigation was still uncertain. As such, Malin argues that Parrish's services were necessary, and that his rate is comparable with that of other similarly qualified attorneys in the Tampa area.

B. Veolia's Motion for New Trial and/or to Amend the Judgment

Veolia argues that Malin cannot recover an award for attorney's fees because no evidence of attorney's fees was offered at trial, and thus because attorney's fees were an element of Malin's damages, any such award would be contrary to law. First, Veolia notes that after each of the two pre-trial conferences in this matter, the Court entered minute entries, neither of which indicated that Veolia's liability for attorney's fees would be separated from any determination of the quantum of those fees. As such, Veolia requests a new trial and/or amended judgment on the issue of Malin's entitlement to attorney's fees.

Veolia argues that the Fifth Circuit's test for determining whether attorney's fees are an integral part of a plaintiff's claim considers: 1) whether fees are an element of damages; 2) whether fees were requested in the complaint or pre-trial order; and 3) whether the jury was charged on the issue of fees. Holmes v. J. Ray McDermott & Co., 682 F.2d 1143, 1147 (5th Cir.1982). As for the first factor, Veolia contends that it is undisputed that attorney's fees were an element of damages in connection with Malin's claims under the invoices. Second, Veolia points out that Malin sought attorney's fees in its complaint and in the pre-trial order. Finally, Veolia notes that the jury factor is not at issue, as this matter was tried to the Court. Based on this analysis, Veolia argues that Malin's claim for attorney's fees were an element of Malin's damages and not merely collateral to the underlying trial on the merits. Veolia further contends that the only exception to the general rule that a party's contractual claim for attorney's fees constitutes an element of damages is a claim based on a "prevailing party" provision. See, e.g., Pride Hyundai, Inc. v. Chrysler Fin. Co., 355 F.Supp.2d 600, 603 (D.R.I.2005). Only in the context of a "prevailing party" fee clause is a claim for fees collateral to the merits of a plaintiffs claims. Veolia argues that the fee provision in the invoices on which Malin's claim is based...