Winters v. Eric Shawhai Feng

• Docket Number: Civil Action 3:21-CV-742-KHJ-MTP
• Decision Date: 01 September 2023
• Parties: JOHN EVERETTE WINTERS PLAINTIFF v. ERIC SHAWHAI FENG, et al. DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

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JOHN EVERETTE WINTERS PLAINTIFF v. ERIC SHAWHAI FENG, et al. DEFENDANTS

Civil Action No. 3:21-CV-742-KHJ-MTP

United States District Court, S.D. Mississippi, Northern Division

September 1, 2023

ORDER

KRISTI H JOHNSON, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Eric Shawhai Feng's [59] Motion for Attorney Fees and [76] Motion to Strike Plaintiff John Everette Winters's Response in Opposition to Feng's Motion for Attorney Fees. Also before the Court is Arby's Restaurant Group, Inc., and Sybra, LLC's (collectively “Arby's”) [66] Motion for Extension of Time to File a Motion for Attorney Fees and [68] Motion for Attorney Fees. For the following reasons, the Court grants Feng's motions, denies Arby's motion for an extension of time, and denies as moot Arby's motion for attorney's fees.

I. Background

This is the second lawsuit arising from a commercial lease. See Winters v. Feng, 320 So.3d 1235, 1240 (Miss. Ct. App. 2020). In 2015, Winters and Feng entered into a written agreement for Feng to lease commercial property in Lowndes County, Mississippi. Id. at 1237; Compl. [1] ¶ 1. Feng intended to operate an Arby's restaurant, so he subleased the property to Defendant Sybra, LLC, a subsidiary of Defendant Arby's Restaurant Group. [1] ¶ 24. Since then, Winters filed two lawsuits concerning the Lease. See id. ¶ 11.

The first lawsuit concerned Feng's compliance with the Lease's requirements. Id. A Mississippi trial court granted summary judgment in Feng's favor, and it ordered Winters to pay Feng's attorney's fees. See Winters, 320 So.3d at 1241. Winters appealed. Id. at 1242. The Mississippi Court of Appeals affirmed and ordered Winters to pay Feng's attorney's fees incurred on appeal. See [71-1]. Despite this, Winters filed the second lawsuit, and Defendants successfully moved for summary judgment based on res judicata. See [42], [46], [57]. The Court now considers Defendants' motions for attorney's fees incurred in this second lawsuit.

The parties submitted several filings, and the Court must address two motions before determining any award. First, Winters filed a sur-reply to Feng's [70] Reply in Support of Motion for Attorneys' Fees, and Feng moves to strike that sur-reply. See [76]. Second, because Arby's failed to file a motion for attorney's fees within the permitted 14-day window, it now seeks an extension to file outside the deadline. See [66], [68].

Therefore, Feng's [59] Motion for Attorney's Fees involves Winters's [71] Sur-Reply and Feng's [76] Motion to Strike that Sur-Reply. And Arby's [68] Motion for Attorney's Fees involves the [66] Motion for Extension of Time. To avoid confusion, the Court begins with the standard for awarding attorney's fees because it applies uniformly to both Defendants. The Court then addresses the motions specific to each Defendant.

II. Standard

When “a federal court has jurisdiction based on diversity of citizenship, state law governs the award and reasonableness of attorneys' fees.” Affordable Care, LLC v. JNM Off. Prop., LLC, No. 1:19-CV-827, 2022 WL 3271092, at *3 (S.D.Miss. Aug. 10, 2022) (citing Bank of La. v. SunGard Availability Servs., L.P., 374 Fed.Appx. 539, 542-43 (5th Cir. 2010)). Under Mississippi law, courts must enforce a “clear and unambiguous” contractual provision awarding attorney's fees. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So.2d 1100, 1113 (Miss. 2007) (quoting Hamilton v. Hopkins, 834 So.2d 695, 700 (Miss. 2003)).

Mississippi Rule of Professional Conduct 1.5(a) provides that “[a] lawyer's fee shall be reasonable.” To determine whether a fee is reasonable, Mississippi courts consider “the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate.” Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 521-22 (quoting BellSouth Pers. Commc'ns, LLC v. Bd. of Supervisors of Hinds Cnty., 912 So.2d 436, 446-47 (Miss. 2005)). The total calculation is known as the “lodestar” rate.” See id.

Mississippi courts then decide whether to reduce the lodestar rate based on several factors outlined in McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982):

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment;

(3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing services; and

(8) whether the fee is fixed or contingent.

III. Analysis

A. Feng's Motion for Attorney's Fees

The Court begins with Feng's [59] Motion for Attorney's Fees, which involves Winters's [71] Sur-Reply and Feng's [76] Motion to Strike that Sur-Reply. Because the plain terms of the Winters-Feng agreement entitle Feng to attorney's fees, the Court only considers whether to strike the Sur-Reply and the appropriate amount of Feng's award.

1. Winters's Sur-Reply

“Rule 7 of the Local Rules of Civil Procedure contemplates only the filing of: (1) a motion; (2) a response; and (3) a reply.” Brown v. Wiggins, No. 3:18-CV-487, 2019 WL 3723628, at *1 (S.D.Miss. Aug. 7, 2019); L.U. Civ. R. 7(b)(4). “Leave of court is required to file an additional brief ....” Id. (quoting Kennedy v. Jefferson Cnty., Miss. ex rel. Bd. of Supervisors, No. 5:13-CV-226, 2014 WL 12773803, at *1 (S.D.Miss. Oct. 28, 2014)).

“[S]urreplies are heavily disfavored by courts.” Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 Fed.Appx. 749, 751 n.2 (5th Cir. 2014) (quotation omitted). They “often amount to little more than a strategic effort by the nonmovant to have the last word on a matter.” Mission Toxicology, LLC v. Unitedhealthcare Ins. Co., 499 F.Supp.3d 350, 359 (W.D. Tex. 2020) (quoting Weems v. Hodnett, No. 10-CV-1452, 2011 WL 2731263, at *1 (W.D. La. July 13, 2011)). “Leave to file should be granted [only] when judicial experience and common sense deem it appropriate, bearing in mind the invidious stratagems warned of by our sister districts.” Kennedy, 2014 WL 12773803, at *1. “Some factors to consider include whether new arguments actually have been raised in the reply brief and whether these arguments have been identified in the motion for leave to file.” Id.; see also Univ. of Miss. Med. Ctr. v. Sullivan, No. 3:19-CV-459, 2021 WL 5414301, at *1 (S.D.Miss. Oct. 7, 2021) (“Leave of court to allow a sur-reply has been found appropriate where the moving party raised new arguments in the reply brief that went beyond rebutting the response.”).

Feng's [70] Reply does not raise new arguments. Because Winters's Sur-Reply merely responds to Feng's assertions in the Reply, see [64] Amended Response, the Sur-Reply is an attempt to have “the last word on a matter” rather than an “appropriate” response to a new argument. See Mission Toxicology, 499 F.Supp.3d at 359; Sullivan, 2021 WL 5414301, at *1. Winters's pro se status “does not relieve him of the duty to abide by procedural rules ....” See May v. Univ. of Miss. Med. Ctr., No. 3:11-CV-665, 2015 WL 1540429, at *3 (S.D.Miss. Apr. 7, 2015) (citation omitted). For those reasons, the Court grants Feng's [76] Motion to Strike Winters's Sur-Reply and turns to Feng's Motion for Attorney's fees without considering the Sur-Reply or any attachments.

2. Feng's Attorney's Fees

The Court considers the plain language of the Lease Agreement:

Both parties agree to the award of attorneys' fees, court costs and all other expenses related to any lawsuit or any action involving this Lease.

[1-1] ¶ 8. Because the contractual language is unambiguous, the Court does not question whether Feng is entitled to recover. See Upchurch, 964 So.2d at 1113 (enforcing unambiguous contractual provision for attorney's fees). Instead, the Court only considers the reasonableness of the award. See Tupelo Redevelopment Agency, 972 So.2d at 521 (identifying the “controlling factor” for calculating attorneys' fees as “what is reasonable”).

Winters argues that the Court should adjust any award to one-half or less of what the Mississippi Court of Appeals awarded. [64] at 5. Winters relies on the Mississippi Court of Appeals' order in the first lawsuit that granted an additional one-half of the attorney's fees already awarded by the trial court. [62-1] at 2 (“This Court generally awards half of the fees allowed by the trial court when a party is required to defend an attorney's fee award in his favor.”) (emphasis added). Winters's reliance on the order is misplaced. The order pertains to the appellate review of the state trial court's award of attorney's fees in the first lawsuit. See [621]. Sitting as a federal trial court, the Court is considering the initial award of attorney's fees in this second lawsuit. The Court cannot apply a one-half reduction based on an amount it has not yet awarded.

Next Winters argues for a reduction in the award because the second lawsuit “was less time[-]consuming” and only spanned “one year and four months, as opposed to . . . four and one-half years” for the first lawsuit. [64] at 5. But the standard for calculating attorney's fees is not how long a case stays on the Court's docket. See BellSouth, 912 So.2d at 446-47 (calculating attorney's fee award based on hours expended and hourly rate). As for Winters's arguments on prior overpayments in the first lawsuit, he does not supply sufficient evidence or authority for a reduction based on those grounds. Therefore, the Court turns to...