Case: 18-60520 Document: 00515163580 Page: 1 Date Filed: 10/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60520 October 17, 2019
Lyle W. Cayce
JOHN HARVEY, Clerk
Plaintiff - Counter Defendant - Appellant Cross-Appellee
v.
CAESARS ENTERTAINMENT OPERATING COMPANY,
INCORPORATED; JAZZ CASINO COMPANY, L.L.C., doing business as
Harrah's New Orleans, a Louisiana L.L.C.,
Defendants - Appellees
ROBINSON PROPERTY GROUP CORPORATION, doing business as
Horseshoe Tunica,
Defendant - Counter Claimant - Appellee Cross-Appellant
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 2:11-CV-194
Before JOLLY, HO, and ENGELHARDT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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This appeal arrives in our court following several visits by John Harvey
to Caesars Entertainment affiliated casinos in Louisiana and Mississippi.
During those visits, Harvey issued markers 1 to the casinos, indicating that he
had sufficient funds in his bank account to cover his gambling debts. After
Harvey failed to satisfy the markers, the Orleans Parish District Attorney’s
office prosecuted Harvey under Louisiana’s worthless check statute. And
Harvey filed this suit against seventeen different entities associated with
Caesars Entertainment. 2 One of the casinos, Horseshoe Tunica,
counterclaimed for breach of contract.
The district court granted summary judgment in favor of the casinos on
Harvey’s claims as well as Horseshoe Tunica’s counterclaims. It also awarded
Horseshoe Tunica prejudgment interest and stated that Horseshoe Tunica
would be awarded attorney’s fees. Several years and various proceedings later,
the district court docketed a document titled “Final Judgment,” which
ultimately awarded Horseshoe Tunica no attorney’s fees. That same day, the
district court denied a motion filed by Harvey to compel enforcement of an
alleged settlement agreement between the parties. Harvey now appeals the
dismissal of several of his claims, the district court’s calculation of prejudgment
interest, and the district court’s rejection of his motion to compel enforcement
1 As the district court noted, “[a] marker is a term used in the casino industry
describing a type of negotiable check signed by the maker and on which is the name of the
bank at which the maker has an account, usually with the account information, and the
understanding is that the ‘marker’ can be cashed at the maker’s described bank as a personal
check could be.”
2The district court dismissed thirteen of these entities from this action after Harvey
conceded that they played no role in the events giving rise to his claims. The four remaining
defendants were: Jazz Casino Company, LLC, the owner of Harrah’s; Robinson Property
Group, the owner of Horseshoe Tunica; Horseshoe Entertainment, LP, the owner of
Horseshoe Bossier City; and Caesars Entertainment Operating Company, Inc., the parent
company of at least Jazz Casino Company. Harvey has not pursued an appeal against
Horseshoe Entertainment, LP. For ease of reference, we refer to the remaining defendants
by the names of the casinos they are associated with.
2
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of the supposed settlement agreement. Horseshoe Tunica cross appeals the
district court’s decision to award $0.00 in attorney’s fees. We affirm in toto the
district court’s dismissal of Harvey’s claims. With respect to the district court’s
denial of attorney’s fees, we affirm in part, reverse in part, and remand.
I.
In April 2011, Harvey gambled at the Horseshoe Casino in Bossier City,
Louisiana, and losing, executed markers in the amount of $500,000. The next
month, he executed markers worth $1,500,000 at Harrah’s in New Orleans.
Several days later, Harvey executed another $1,000,000 in markers at the
Horseshoe Casino in Tunica, Mississippi. As of June 30, Harvey had not paid
on the markers, so on July 5, Harrah’s placed its markers for collection.
Horseshoe Bossier City placed its markers for collection on July 11. Harvey
stopped payment on both sets of markers.
In August, Harvey and Scott Barber, the general manager of Horseshoe
Tunica, entered into a payment arrangement for the markers owed all three
casinos. Under this arrangement, the $3,000,000 owed was to be paid off by
the end of January. Barber conditioned the arrangement on Harvey’s
agreement to only play at casinos owned by Caesars Entertainment. Harvey
made an initial payment of $150,000 to Horseshoe Tunica but then gambled at
a Caesars competitor. The casinos responded by informing Harvey that they
considered him to have breached the agreement and by demanding payment
in full. Following Harvey’s breach, Horseshoe Tunica deposited the remaining
$850,000 in markers that Harvey owed it. Harvey stopped payment on these
markers as well. 3
3As we will point out later, Harvey subsequently paid the $500,000 debt owed to
Horseshoe Bossier City.
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On September 2, Harrah’s sent Harvey a letter, stating that if he did not
satisfy the markers within ten days it would turn his case over to the Orleans
Parish District Attorney’s office for prosecution. On September 8, Harrah’s
filled out a “Worthless Check Affidavit” with the District Attorney’s office and
signed an agreement to prosecute. On September 28, a warrant was issued for
Harvey’s arrest. After Harvey reached a restitution agreement with Harrah’s
to satisfy the $1,500,000 marker debt, the state court dismissed Harvey’s
criminal charges by nolle prosequi. 4
II.
Soon after Harrah’s signed the agreement to prosecute, Harvey brought
this suit, alleging various causes of action against the casinos. Relevant to this
appeal are Harvey’s claims of malicious prosecution, false arrest, and abuse of
process. 5 Harvey also sought a declaration that both Louisiana and
Mississippi’s worthless check statutes were unconstitutional. Horseshoe
Tunica counterclaimed for breach of contract on the $850,000 in marker debt
that Harvey owed it. At the close of discovery, the parties filed a number of
dispositive motions. Our primary concern is with a motion for summary
judgment filed by Caesars Entertainment, Horseshoe Tunica, Horseshoe
4 The parties dispute the District Attorney’s role in the restitution agreement.
According to Harvey, the agreement required him to pay the District Attorney’s office a
$300,000 fee in addition to paying Harrah’s the $1,500,000 in marker debt. Harrah’s
disagrees, and contends that Harvey was not required to pay more than the face value of the
markers. Although it is unclear whether Harvey had to pay more than the $1,500,000 in
marker debt, the record indicates that some portion of Harvey’s payments went to the District
Attorney’s office.
5 Harvey has also indicated that he is appealing his intentional and negligent
infliction of emotional distress claims, by stating he “submitted sufficient evidence for
intentional/negligent infliction of emotional distress, which materially dispute the factual
basis for dismissal and merit consideration by a jury.” But Harvey has not pointed us to any
legal authority that would support this assertion. Thus, he has waived any argument that
the district court erred in dismissing these claims. See James v. Woods, 899 F.3d 404, 411
(5th Cir. 2018).
4
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Bossier City, and Harrah’s. Harvey responded to this motion by filing a forty-
three page response as well as a thirty-one page memorandum brief.
Before ruling on the casinos’ summary judgment motion, the district
court struck Harvey’s response, concluding that it violated the court’s local
rules on page limitations. The district court then proceeded to grant the
casinos’ motion for summary judgment on Harvey’s claims. With respect to the
breach of contract counterclaim, the district court granted summary judgment
in favor of Horseshoe Tunica and indicated that it would award prejudgment
interest at the rate of eight percent, as well as attorney’s fees. Consistent with
its memorandum opinion, the district court entered an order effectively
disposing of all the claims brought in this case. The order did not, however,
expressly state that the case was being dismissed.
The district court then invited Horseshoe Tunica to submit an
application for attorney’s fees. Horseshoe Tunica proceeded to do so, but the
district court rejected the fee application three times. Each time the district
court chastised Horseshoe Tunica for not partitioning its fees in a way that
would allow it to determine whether they were expended solely for the benefit
of Horseshoe Tunica. The district court ultimately awarded Horseshoe Tunica
zero dollars in attorney’s fees and costs of collection.
In the meantime, Harvey filed a motion to compel settlement, asserting
that the parties had reached a settlement agreement sometime after the
district court’s summary judgment ruling. After Harvey filed the motion to
compel and nearly three and a half years after its order on summary judgment,
the district court docketed a document entitled final judgment. The district
court then denied Harvey’s motion to compel settlement for lack of jurisdiction.
Harvey filed motions for reconsideration, which the district court denied. This
appeal followed.
5
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III.
A.
We first address whether the district court erred in striking Harvey’s
response to the casinos’ summary judgment motion. We review the district
court’s interpretation and application of its local rules for abuse of discretion.
See Victor F. v. Pasadena Indep. Sch. Dist., 793 F.2d 633, 635 (5th Cir. 1986)
(per curiam).
The district court’s local rules provide that a “respondent’s memorandum
brief may not exceed thirty-five pages.” N.D. Miss. L. U. Civ. R. 7(b)(5). Here,
Harvey filed a forty-three page response to the casinos’ summary judgment
motion in addition to a thirty-one page brief. As the district court noted, this
appears to have been done to circumvent the page limitations set forth in Local
Rule 7(b)(5). Although Harvey points out that the Local Rule refers to
memorandum briefs rather than responses, we find no error in the district
court’s application of the page limit requirement to Harvey’s response.
Additionally, although Harvey argues otherwise, nothing indicates that the
district court failed to consider Harvey’s summary judgment evidence. In its
order, the district court stated that it would disregard Harvey’s response, not
his exhibits. Further, the district court later clarified that it did in fact
consider Harvey’s exhibits when ruling on summary judgment. Accordingly,
the district court did not abuse its discretion in striking Harvey’s response.
B.
We turn next to the merits of the district court’s summary judgment
ruling. We review the district court’s grant of summary judgment de novo,
viewing all the facts and evidence in the light most favorable to the non-
movant. Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir.
2013). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
6
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists when the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Harvey takes issue with three aspects of the district court’s summary
judgment ruling. First, Harvey alleges that the district court erred by not
conducting a choice-of-law analysis before assessing his malicious prosecution,
abuse of process, and false arrest claims. Next, Harvey argues that a genuine
dispute of material fact exists as to each of these claims. Finally, Harvey
asserts that the district court erred by dismissing his constitutional challenge
to Louisiana’s worthless check statute. We address each argument in turn.
1.
The district court did not conduct a formal choice-of-law analysis on
Harvey’s malicious prosecution, false arrest, and abuse of process claims, but
instead applied Louisiana law to these claims without comment. On appeal,
Harvey argues that the district court should have applied Mississippi law.
A federal district court sitting in diversity must apply the choice-of-law
rules of the state in which it sits. See Gann v. Fruehauf Corp., 52 F.3d 1320,
1324 (5th Cir. 1995). Here, the district court is located in Mississippi. Under
Mississippi choice-of-law principles, the district court was not required to make
a choice-of-law determination unless a true conflict exists between Mississippi
and Louisiana law. See Zurich Am. Ins. Co. v. Goodwin, 920 So. 2d 427, 432
(Miss. 2006). Harvey argues that such a conflict exists, in that Mississippi and
Louisiana law differ as to whether a defendant who uses the legal process to
collect a debt abuses that process.
But, by failing to adequately raise this issue before the district court,
Harvey has waived any argument that the two states’ laws conflict. See Fruge
v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (“Failure to raise
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an argument before the district court waives that argument, including an
argument for choice-of-law analysis.”). In his brief in opposition to the casinos’
summary judgment motion, Harvey made no mention of any conflict between
Mississippi and Louisiana law regarding the torts of malicious prosecution,
false arrest, and abuse of process. Instead, Harvey merely stated “[a]s the
Court has not decided which state law to apply, Plaintiff has attempted to brief
both Mississippi and Louisiana law.” He then cited both Mississippi and
Louisiana law with respect to his malicious prosecution and abuse of process
claims and never explained why the district court should apply Mississippi law
to his false arrest claim. This was insufficient to put the district court on notice
that a potential conflict existed. Although Harvey did raise this issue in his
Rule 59(e) motion, “[t]his court will typically not consider an issue or a new
argument raised for the first time in a motion for reconsideration in the district
court.” U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 425 (5th
Cir. 2014). Accordingly, Harvey waived this argument by not addressing it in
his opposition to the casinos’ summary judgment motion. Because of Harvey’s
waiver, we have no occasion to consider whether Mississippi law should have
been applied to the malicious prosecution, false arrest, and abuse of process
claims. And thus, we now proceed to consider those claims under Louisiana
law.
2.
We begin by examining Harvey’s claim for malicious prosecution. In
Louisiana, a plaintiff bringing a malicious prosecution claim must establish:
(1) the commencement or continuance of an original criminal or
civil judicial proceeding; (2) its legal causation by the present
defendant[s] in the original proceeding; (3) its bona fide
termination in favor of the present plaintiff; (4) the absence of
probable cause for such proceeding; (5) the presence of malice
therein; and (6) damage conforming to legal standards resulting to
[the] plaintiff.
8
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Jones v. Soileau, 448 So. 2d 1268, 1271 (La. 1984).
We focus on the element of probable cause. With respect to this element,
“[t]he crucial determination is whether [the defendant] had an honest and
reasonable belief in the guilt of [the plaintiff] at the time [the defendant]
pressed charges.” Id. at 1272. Our review of the record convinces us that the
casinos had reason to believe Harvey violated the worthless check statute. The
elements of a violation of Louisiana’s worthless check statute are:
(1) defendant issued, in exchange for anything of value, whether
the exchange is contemporaneous or not; (2) a check, draft or order
for the payment of money upon any bank or other depository; (3)
knowing at the time of the issuing that the account on which
drawn has insufficient funds with the financial institution on
which the check is drawn to have the instrument paid in full on
presentation; and (4) the instrument was issued with intent to
defraud.
State v. Davis, 134 So. 3d 1257, 1263 (La. Ct. App. 2014).
Harvey asserts that at the time Harrah’s contacted the District
Attorney’s office it had no evidence that he issued the markers with the intent
to defraud or knowledge that his bank account had insufficient funds to pay
the markers. The record indicates otherwise. Harvey initially executed these
markers in the spring of 2011. He understood that if he did not pay on the
markers within thirty days the casinos could deposit the markers with his
bank. Understanding this fact, Harvey asked Harrah’s to wait more than
thirty days to deposit the markers. Then, once Harrah’s deposited the
markers, Harvey immediately stopped payment on them. On September 2,
following the markers being returned to Harrah’s for stopped payment,
Harrah’s sent Harvey a letter stating that if it did not receive full payment
within ten days it would turn this case over to the Orleans Parish District
Attorney’s office for prosecution. As of September 8, the day Harrah’s filled
out the worthless check affidavit and entered into the agreement to prosecute,
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Harvey had not satisfied the markers. Thus, at the time Harrah’s contacted
the District Attorney, Harrah’s had sufficient reason to believe that from the
beginning Harvey knew he did not have the funds to satisfy the markers and
issued the markers with the intent to defraud. 6 It is easy to conclude that, as
a matter of law, Harrah’s had probable cause to press charges against Harvey,
and the district court did not err in granting summary judgment in favor of the
casinos on Harvey’s malicious prosecution claim. 7
3.
We now turn to Harvey’s false arrest claim. The tort of false arrest, or
false imprisonment, has the following elements: “(1) detention of the person;
and (2) the unlawfulness of the detention.” Richard v. Richard, 74 So. 3d 1156,
1159 (La. 2011). Although not formally an element, a claim of false arrest in
Louisiana also requires that the underlying arrest was not supported by
probable cause. See Gibson v. State, 758 So. 2d 782, 791 (La. 2000). We
conclude that Harvey’s false arrest claim fails as a matter of law. As stated,
the record demonstrates that probable cause existed at the time Harrah’s
reported Harvey to the authorities. Additionally, under Louisiana law, a
defendant is not liable for false arrest unless the arrest personally detained or
restrained the plaintiff. See Henderson v. Bailey Bark Materials, 116 So. 3d
30, 39 (La. Ct. App. 2013) (“[The plaintiff] has not presented any evidence to
support a claim of false imprisonment. He was not detained by anyone at
6 Harrah’s also argues that it had presumptive evidence of Harvey’s intent to defraud
because Harvey failed to make payment on the markers within ten days from the date of its
letter demanding payment. See La. Rev. Stat. Ann. § 14:71(A)(2) (“The offender’s failure to
pay . . . within ten days after notice of its nonpayment [through written demand] shall be
presumptive evidence of his intent to defraud.”). Because we conclude that Harvey’s other
actions provided Harrah’s with reason to believe that Harvey issued the markers with intent
to defraud, we do not consider whether this presumption applies in this case.
7 As such, we need not address whether Harvey established a genuine issue of material
fact on the other elements of his malicious prosecution claim.
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Bailey Bark. He was arrested by the police based on warrants validly and
lawfully obtained.”). Here, Harvey voluntarily surrendered after the District
Attorney’s office obtained a warrant for his arrest. There is no evidence that
Harvey was ever detained by anyone connected with the casinos. Thus, the
district court did not err in granting summary judgment on Harvey’s false
arrest claim.
4.
We now turn to Harvey’s abuse of process claim. “There are two essential
elements of a cause of action for abuse of process: (1) the existence of an ulterior
purpose; and (2) a willful act in the use of the process not in the regular
prosecution of the proceeding.” Guillory v. City of New Orleans, 224 So. 3d
1035, 1042 (La. Ct. App. 2017). Harvey’s abuse of process claim fails on the
first element. As evidence of an ulterior purpose, Harvey contends that
Harrah’s reported him to the District Attorney so that Harrah’s could collect a
civil debt. But Louisiana law does not consider the desire to collect a civil debt
to be an ulterior motive for prosecution. See Vasseur v. Eunice Superette, Inc.,
386 So. 2d 692, 696 (La. Ct. App. 1980) (“We know of no law which prohibits a
holder of an NSF check from filing criminal worthless check charges against
the issuer of the check merely because he has as his only objective payment of
what is due from the defendant-debtor.”); see also Graham v. Foret, 818
F.Supp. 175, 178 (E.D. La. 1992). Harvey has alleged no other ulterior purpose
that would support his abuse of process claim. Thus, we affirm the district
court’s grant of summary judgment on Harvey’s abuse of process claim.
5.
We next turn to Harvey’s constitutional challenge to Louisiana’s
worthless check statute. Harvey seeks a declaration that La. Rev. Stat. Ann.
§§ 14:71 and 16:15 violate the Fourteenth and Eighth Amendments because
they allow the district attorney to collect a twenty percent fee on debt collected
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from violations of the worthless check statute. 8 The district court concluded
that Harvey lacked standing to bring this claim and that the claim failed on
the merits.
To satisfy the “irreducible constitutional minimum of standing” Harvey
“must demonstrate that (1) [he has] suffered an injury in fact, which is an
invasion of a legally protected interest that is concrete and particularized
rather than conjectural or hypothetical, (2) there is a causal connection
between the injury and the conduct complained of such that the injury is fairly
traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court, and (3) the injury
likely will be redressed by a favorable decision.” Seal v. McBee, 898 F.3d 587,
590–91 (5th Cir. 2018) (internal quotation marks omitted) (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Moreover, to establish standing
to seek declaratory relief, a plaintiff “must show that ‘there is a real and
immediate threat of repeated injury.’” Id. at 591. (quoting City of Los Angeles
v. Lyons, 461 U.S. 95, 102 (1983)).
Harvey contends that he has standing to bring this claim because there
is evidence that, as part of his restitution agreement with Harrah’s, he paid
the District Attorney’s office a $300,000 fee, which is equal to the twenty
percent collection fee that Louisiana’s worthless check statute authorizes
district attorneys to collect. We see at least two problems with Harvey’s
8 Section 14:71 makes issuing worthless checks a crime for which successful
prosecution can lead to imprisonment, the payment of a fine, or court ordered restitution.
See La. Rev. Stat. Ann. § 14:71. Section 16:15 provides: “A district attorney may collect a fee
whenever his office collects and processes a check, draft, or order for the payment of money
upon any bank or other depository . . . from any person who is a principal to [a worthless
check offense].” La. Rev. Stat. Ann. § 16:15(A), (B). For worthless checks with a face amount
greater than five hundred dollars, such as those at issue here, the district attorney may
collect a fee that equals up to twenty percent of the debt collected. La. Rev. Stat. Ann.
§ 16:15(C)(5).
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argument. First, even if we were to agree with Harvey that there is evidence
that the District Attorney’s office collected a $300,000 fee from him, it is
undisputed that this fee would have been collected as a result of the restitution
agreement between Harvey and Harrah’s. This independent agreement
severed any causal connection between Harvey’s alleged injury and application
of the worthless check statute. Second, because of the restitution agreement,
the redressability requirement is not satisfied. Declaring Louisiana’s worthless
check statute unconstitutional, as Harvey requests, would not relieve him of
his obligations under the restitution agreement that he voluntarily entered.
Further, Harvey admits he has already satisfied all of the restitution
agreement’s requirements and points to no evidence that would suggest that
he faces future prosecution under the worthless check statute. Thus, such a
declaration would provide no benefit to Harvey.
Accordingly, we affirm the district court’s dismissal of Harvey’s
constitutional challenge to Louisiana’s worthless check statute on standing
grounds and decline to pass judgment on the constitutionality of that statute.
Because standing is a jurisdictional prerequisite, we do, however, modify the
dismissal to a dismissal without prejudice. See In re Great Lakes Dredge &
Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010) (noting that ordinarily
dismissal for lack of jurisdiction should be without prejudice).
C.
We now examine whether the district court erred in calculating the
prejudgment interest owed on Horseshoe Tunica’s breach of contract
counterclaim. “State law governs the award of prejudgment interest in
diversity cases.” Harris v. Mickel, 15 F.3d 428, 429 (5th Cir. 1994). “This court
reviews the decision to award prejudgment interest, the interest rate selected,
and other computations for abuse of discretion.” Perez v. Bruister, 823 F.3d
250, 274 (5th Cir. 2016).
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Harvey first asserts that the district court erred by calculating the eight
percent interest rate on a compounded basis. Miss. Code Ann. § 75-17-7, which
the district court cited, provides:
All judgments or decrees founded on any sale or contract shall bear
interest at the same rate as the contract evidencing the debt on
which the judgment or decree was rendered. All other judgments
or decrees shall bear interest at a per annum rate set by the judge
hearing the complaint from a date determined by such judge to be
fair but in no event prior to the filing of the complaint.
Miss. Code Ann. § 75-17-7. Because the second sentence of § 75-17-7 gives trial
courts discretion to set the prejudgment interest rate, interest awarded under
that provision may be calculated on a compounded basis. See Williams v.
Duckett, 991 So. 2d 1165, 1183 (Miss. 2008). Harvey argues, however, that the
first sentence of the statute governs the grant of prejudgment interest in this
case because the judgment was founded on a contract between him and
Horseshoe Tunica. He further contends that because the first sentence does
not expressly authorize compound interest the prejudgment interest should
have been calculated using a simple interest rate.
We do not read Mississippi caselaw as supporting Harvey’s position. The
Mississippi Supreme Court has indicated that the second sentence of § 75-17-7
applies to whether prejudgment interest should be awarded in contract cases
where no rate of interest is specified. See Tupelo Redev. Agency v. Abernathy,
913 So. 2d 278, 286 (Miss. 2005). To be sure, that court later held that this
provision’s prohibition on awarding prejudgment interest from a date prior to
the filing of the complaint does not apply to contract cases. See Arcadia Farms
P’ship v. Audubon Ins. Co., 77 So. 3d 100, 106–07 (Miss. 2012). But that
opinion says nothing on whether the second sentence of § 75-17-7 gives trial
courts the authority to set the prejudgment interest rate in contract cases
where the contract does not provide the rate of interest. See id. As such, we
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conclude that § 75-17-7 gave the district court authority to set the prejudgment
interest rate, which means the district court had discretion to calculate that
rate on a compounded basis.
Even if that were not the case, we still would find that the district court
did not abuse its discretion by awarding Horseshoe Tunica prejudgment
interest on a compounded basis. As Horseshoe Tunica notes, the district court
was independently authorized to award it prejudgment interest under Miss.
Code Ann. § 75-17-1(1). 9 See Sentinel Indus. Contracting Corp. v. Kimmins
Indus. Serv. Corp., 743 So. 2d 954, 971 (Miss. 1999) (relying on both §§ 75-17-7
and 75-17-1(1) to assess whether prejudgment interest should be granted on
contract claim where rate of interest not specified). And under § 75-17-1(1),
interest may be compounded. See Estate of Baxter v. Shaw Assocs., Inc., 797
So. 2d 396, 405–07 (Miss. Ct. App. 2001); see also Stovall v. Ill. Cent. Gulf R.R.
Co., 722 F.2d 190, 191–92 (5th Cir. 1984). Thus, it was within the district
court’s discretion to grant Horseshoe Tunica prejudgment interest on a
compounded basis.
Harvey next argues that the district court should not have awarded
prejudgment interest during the period between the district court’s grant of
summary judgment and its entry of final judgment. Instead, he contends that
postjudgment interest should have been awarded from the date of the district
court’s order granting summary judgment. We disagree.
Although state law controls the determination of prejudgment interest,
“[i]n diversity cases, federal law controls the award of postjudgment interest,
including decisions about when postjudgment interest begins to accrue.”
ExxonMobil Corp. v. Elec. Reliability Servs., Inc., 868 F.3d 408, 419 (5th Cir.
9 Miss. Code Ann. § 75-17-1(1) provides: “[t]he legal rate of interest on all notes,
accounts and contracts shall be eight percent (8%) per annum, calculated according to the
actuarial method.” Miss. Code Ann. § 75-17-1(1).
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2017) (quoting Art Midwest, Inc. v. Clapper, 805 F.3d 611, 615 (5th Cir. 2015)).
Under 28 U.S.C. § 1961, postjudgment interest is calculated from “the date of
the entry of the judgment.” 28 U.S.C. § 1961(a). We look to the district court’s
intent, as well as its manifestation of that intent, to determine whether a
particular document qualifies as a judgment. See Heck v. Triche, 775 F.3d 265,
277–78 (5th Cir. 2014); Creaghe v. Albemarle Corp., 98 F. App’x 972, 974 (5th
Cir. 2004).
Here, the record reflects that the district court did not intend the
September 24, 2014 order granting summary judgment to be a judgment.
Although the order effectively disposed of all the parties’ claims, it did not, by
its express terms, dismiss the suit. Moreover, after the district court entered
the order, the parties filed several motions requesting that a final judgment be
entered. The district court denied these motions. The district court then
docketed a document styled “Final Judgment” on March 13, 2018, which
dismissed Harvey’s claims with prejudice and entered judgment against
Harvey on Horseshoe Tunica’s counterclaim. Based on the foregoing, it is
apparent that the district court intended the March 13, 2018 “Final Judgment”
and not the September 24, 2014 “Order” to serve as the judgment in this
matter, and we find no error in the district court’s award of prejudgment
interest through its entry of that judgment. 10 Accordingly, we affirm the
district court’s calculation of the prejudgment interest owed Horseshoe Tunica.
D.
Harvey’s final argument is that the district court erred by denying his
motion to compel enforcement of the alleged settlement agreement. The
district court concluded that it lacked jurisdiction over Harvey’s motion
10We also note that Harvey has not cited, and we have not found, any Mississippi case
that stands for the proposition that prejudgment interest stops running once a dispositive
motion, such as a motion for summary judgment, has been ruled upon.
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because its order granting summary judgment “had disposed of all claims.” We
review de novo a district court’s interpretation of its own subject matter
jurisdiction. See Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 327
(5th Cir. 2008).
We agree with the district court that, in general, once a case has been
dismissed, a district court does not retain ancillary jurisdiction to enforce a
settlement agreement unless the dismissal order expressly reserves
jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379–
82 (1994). This case, however, had not been dismissed at the time Harvey filed
his motion to compel. Harvey filed the motion to compel well after the district
court granted summary judgment but before final judgment had been entered.
As we have noted, the summary judgment order did not state that Harvey’s
claims had been dismissed or that this case had been closed. Not until March
13, 2018 did the district court dismiss Harvey’s claims or enter judgment in
favor of Horseshoe Tunica on its counterclaim. Under these circumstances, we
conclude that the district court had jurisdiction to rule on the motion to compel.
See Bailey v. Potter, 478 F.3d 409, 412 (D.C. Cir. 2007). 11
Nonetheless, we are not convinced that the district court’s denial of
Harvey’s motion constitutes reversible error. The only evidence of settlement
comes from an email between attorneys which states: “We will accept the offer.
We’ll draft up a settlement agreement.” This email does not indicate that a
settlement agreement had been reached. Instead, it merely suggests that the
11 It is of no moment that the district court, although entering the two orders on the
same day, technically entered the final judgment before ruling on Harvey’s motion to compel.
Because Harvey filed the motion to compel enforcement of the settlement agreement while
this case was pending before the district court, the district court had jurisdiction to rule on
the motion. Cf. Shaffer v. Veneman, 325 F.3d 370, 374 (D.C. Cir. 2003) (distinguishing cases
where parties sought to enforce settlement agreement prior to dismissal from those where
parties sought enforcement after dismissal).
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attorneys anticipated a settlement being agreed to in the future. Subsequent
emails between the attorneys further convince us that the parties had not
settled. In one email, Harvey’s counsel provided “comments to the draft
settlement agreement” in which he materially changed portions of a proposed
settlement. The remainder of the emails between the attorneys very much
reflect active settlement negotiations rather than discussions between parties
who had already settled. Given the lack of evidence of an enforceable
settlement, the district court did not err in denying Harvey’s motion.
We thus conclude our discussion of the merits of Harvey’s appeal and
AFFIRM in toto the district court’s judgment dismissing all of Harvey’s claims.
We now turn to the cross appeal of Horseshoe Tunica.
IV.
In its cross appeal, Horseshoe Tunica argues that the district court
improperly denied its motion for attorney’s fees and costs. As Mississippi law
governed the contract between Harvey and Horseshoe Tunica, we again look
to Mississippi law to determine whether Horseshoe Tunica should have been
awarded attorney’s fees. See Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th
Cir. 2002). “[W]e review the district court’s denial of attorney’s fees for an
abuse of discretion.” Wal-Mart Stores Inc., v. Qore, Inc., 647 F.3d 237, 242 (5th
Cir. 2011). In doing so, we review the district court’s factual findings for clear
error and legal conclusions de novo. See id. at 242–43.
At the outset, we should make clear as to how the attorney’s fees issue
arises only as to Horseshoe Tunica and has no relevance as to the other
defendants. We remind the reader that Harvey initially sued seventeen
different entities associated with Caesars Entertainment. Harvey eventually
conceded that thirteen of these defendants should be dismissed from this suit.
However, the remaining four defendants, Harrah’s, Horseshoe Tunica,
Horseshoe Bossier City, and Caesars Entertainment, shared a commonality of
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interest and thus have been represented by the same attorneys throughout this
litigation. Under this arrangement, all attorney’s fees and other litigation
expenses incurred by the defendants were initially processed and paid by
Caesars Entertainment. The defendants then allocated these fees and
expenses to Horseshoe Tunica, ostensibly because the lawsuit was filed in
Mississippi where Horseshoe Tunica is located.
Although the suit against the individual defendants shared a common
basis, each defendant’s individual situation with respect to Harvey differed.
Harvey’s failure to pay on the markers breached three separate agreements
with Harrah’s, Horseshoe Bossier City, and Horseshoe Tunica. After this
litigation commenced, but before it was fully litigated, Harvey entered into a
restitution agreement with Harrah’s to satisfy the $1.5 million that he owed it.
Additionally, at some point before the district court’s summary judgment
ruling, Harvey paid the debt ($500,000) he owed Horseshoe Bossier City. Thus,
only Horseshoe Tunica filed a breach of contract counterclaim against Harvey.
Concluding that Harvey breached his agreement with Horseshoe Tunica,
the district court held that the terms of a credit line application Harvey signed
with Horseshoe Tunica required Harvey to pay Horseshoe Tunica’s attorney’s
fees. By signing the credit line application, Harvey agreed to the following
contractual term: “Should [Horseshoe Tunica] commence legal action against
me to collect any money I may owe, I will pay [Horseshoe Tunica’s] attorneys’
fees and cost of collection.” The district court interpreted this provision as
allowing Horseshoe Tunica to recover the fees expended in prosecuting its
counterclaim and in defending against Harvey’s claims. The district court
reasoned that Horseshoe Tunica’s defense against Harvey’s tort claims was “a
considerable cost of collection.” But the district court held that, even though
all the defendants employed the same attorneys, this provision did not allow
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for the recovery of attorney’s fees and costs incurred by defendants other than
Horseshoe Tunica.
With this background in mind, we proceed to focus on Horseshoe
Tunica’s argument that the district court erred in denying its motion for
attorney’s fees. Under Mississippi law, attorney’s fees “cannot be awarded
absent a relevant contractual provision or statutory authority, or unless
punitive damages are granted.” A & F Props., LLC v. Lake Caroline, Inc., 775
So. 2d 1276, 1282 (Miss. Ct. App. 2000). Further, “[w]hen a party fails to
present competent evidence to determine attorney’s fees, the award may be
denied.” See Romney v. Barbetta, 881 So. 2d 958, 962 (Miss. Ct. App. 2004).
Here, the district court denied Horseshoe Tunica’s initial $483,307.50
attorney’s fee application because Horseshoe Tunica sought to recover the fees
and costs incurred by all the defendants under the theory that Horseshoe
Tunica incurred these costs when the other defendants allocated their
expenses to Horseshoe Tunica. Horseshoe Tunica then revised its attorney’s
fees application and requested $444,302 in attorney’s fees, which it stated
reflected work solely “related to (1) tasks that benefitted [Horseshoe Tunica]
to the exclusion of any other [d]efendant or (2) tasks that benefitted [Horseshoe
Tunica] as well as other [d]efendants, but were necessary to the success of
[Horseshoe Tunica’s] [c]ounterclaim and/or its defense of [Harvey’s] claims.”
The district court again denied Horseshoe Tunica’s motion, stating that it had
identified at least thirty entries related to issues surrounding Harvey’s
criminal prosecution, which did not involve Horseshoe Tunica. The district
court also found it troubling that there was an “absence of . . . explanation as
to why certain hours characterized almost identically as deducted hours were
nonetheless included in the fee request.” Horseshoe Tunica again reduced the
requested fee amount to $414,980. In this fee application, Horseshoe Tunica
noted that it could identify only $21,986 in fees that benefitted it alone but
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believed it was also entitled to an additional $392,994 in fees because they
represented “the costs and fees associated with the claims [Horseshoe Tunica]
defended against and countered.” The district court denied this fee request
with prejudice after it found Horseshoe Tunica had again requested “close to
all of the fees and costs expended on behalf of all defendants” even though it
had been “instructed otherwise by the court on two occasions.” (emphasis in
original).
The district court did not abuse its discretion when it declined to award
Horseshoe Tunica the full amount of fees and costs requested. This case does
not allow the court to presume a reasonable award. See Lane v. Lampkin, 234
So. 3d 338, 351 (Miss. 2017); but see Dynasteel Corp. v. Aztec Indus., Inc., 611
So. 2d 977, 986 (Miss. 1992) (holding that under Open Account Statute court
would “presume reasonable an attorney[‘]s[ ] fee of one-third of the judgment
obtained”). Instead, Horseshoe Tunica was entitled to only those attorney’s
fees and costs provided for under its contract with Harvey. Romney, 881 So.
2d at 962. To be candid, we see nothing inequitable in declining to award
attorney’s fees when the party requesting the fees fails to show that the
requested fees are allowed under the relevant contract. Cf. McDonald’s Corp.
v. Watson, 69 F.3d 36, 45–46 (5th Cir. 1995) (“The district court abuses its
discretion if it awards contractually-authorized attorneys’ fees under
circumstances that make the award inequitable or unreasonable or fails to
award such fees in a situation where inequity will not result.” (emphasis
added)).
Here, the district court gave Horseshoe Tunica multiple opportunities
to segregate the attorney’s fees in a manner that would allow the court to
determine which fees were expended on behalf of Horseshoe Tunica. Still, the
district court continued to find time entries for tasks unrelated to issues
involving Horseshoe Tunica. For example, when examining Horseshoe
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Tunica’s second fee application, the district court noted that it included time
entries related to the Louisiana worthless check statute, even though
Horseshoe Tunica, located in Mississippi, never sought Harvey’s prosecution
under Louisiana law. Additionally, review of the time records submitted in
support of Horseshoe Tunica’s third and final fee application demonstrates
that Horseshoe Tunica failed to describe much of the claimed work with enough
particularity for the district court to determine whether the work was
performed on behalf of Horseshoe Tunica. Under similar circumstances,
Mississippi courts have repeatedly found that the failure to adequately
distinguish between reimbursable and non-reimbursable fees bars any award
of attorney’s fees. See, e.g., Indus. & Mech. Contractors of Memphis, Inc. v. Tim
Mote Plumbing, LLC, 962 So. 2d 632, 639 (Miss. Ct. App. 2007); Romney, 881
So. 2d at 962; A & F Props., 775 So. 2d at 1282–83. Accordingly, we conclude
that the district court did not abuse its discretion when it declined to award
Horseshoe Tunica the $392,994 in attorney’s fees as well as other litigation
costs requested for the tasks that Horseshoe Tunica submitted benefitted it as
well as the other defendants.
We do, however, find it necessary to remand the attorney’s fees issue for
the limited purpose of allowing the district court to consider whether
Horseshoe Tunica provided sufficient evidence that it was entitled to the
$21,986 in fees it identified as relating solely to tasks that benefitted it.
Despite holding that the fee application allowed Horseshoe Tunica to recover
its litigation costs, the district court erred in not specifically explaining why it
failed to award Horseshoe Tunica this fee amount. We reach this conclusion
because in its final fee application Horseshoe Tunica specifically identified
these fees as benefitting it and no one else. Additionally, it segregated these
fees by highlighting on the proffered invoices the billing entries for the
expenses that fell within this category of fees. Accordingly, we reverse the
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portion of the district court’s judgment that declined to award Horseshoe
Tunica this fee amount. On remand, we leave it within the sound discretion of
the district court to determine whether Horseshoe Tunica’s evidentiary
submissions provide a rational basis to award this fee amount.
V.
In sum, the district court did not err by striking Harvey’s response to the
casinos’ motion for summary judgment, by granting summary judgment on
Harvey’s tort claims, or in calculating the prejudgment interest. We also hold
that the district court did not err in finding that Harvey lacked standing to
challenge Louisiana’s worthless check statute, nor in denying Harvey’s motion
to compel settlement. We do hold, however, that the district court erred by not
adequately explaining its failure to award Horseshoe Tunica the $21,986 in
attorney’s fees that Horseshoe Tunica identified as work that benefitted it
alone. Accordingly, the judgment of the district court is:
AFFIRMED as modified in part; REVERSED in part; and REMANDED.
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