UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_____________
No. 93-3756
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LOUISIANA POWER & LIGHT COMPANY,
Plaintiff-Appellee,
versus
FRANCIS S. KELLSTROM, ET AL.,
Defendants,
FRANCIS S. KELLSTROM, ET AL.,
Defendants-Appellants.
________________________________________________
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 defendants1
for antitrust and RICO violations, and the jury rendered a verdict
in LP&L's favor against five defendants2 and against LP&L on the
remainder of its claims. Pursuant to 15 U.S.C. § 153 and Fed. R.
1
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.
2
Fischbach & Moore, Inc., Fischbach Corp., Francis S. Kellstrom,
Commonwealth Electric Co., and Howard P. Foley Co.
3
This section provides:
[A]ny person who shall be injured in his business or property by
reason of anything forbidden in the antitrust laws . . . shall
recover threefold the damages by him sustained, and the cost of
Civ. P. 54(d),4 the district court awarded attorneys' fees to LP&L
on its successful claims and to the prevailing defendants on
theirs.5 Defendants Fischbach & Moore, Inc., Fischbach Corp., and
Francis S. Kellstrom (collectively "Fischbach") appeal 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,6 which offer LP&L refused.
Following approximately six years of pretrial preparation and
eight-weeks of trial, the jury found for LP&L on its bid rigging
claims against Fischbach, Commonwealth Electric Co., and the Howard
suit, including a reasonable attorney's fee.
15 U.S.C. § 15 (1988).
4
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).
5
L.K. Comstock & Co. and LKC, Inc. are the only prevailing defendants
involved in this appeal.
6
See infra Part II (Comstock Appeal), A.
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P. Foley Co.7 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 $500,000.8
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 judgment.
After receiving multiple motions to review elements of the
various 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 conclusions, 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 requests 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
7
Commonwealth Electric Co. and the Howard P. Foley Co. are not parties
to this appeal.
8
Under 15 U.S.C. § 15 (1988), this amount was trebled for a total
recovery of $1.5 million.
-3-
5) awarding fees for LP&L's experts' response to discovery 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.
II
The Fischbach Appeal:
Fischbach challenges several elements of the award of
attorneys' 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.
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
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litigation and the reasonable hourly rates for the participating
lawyers. Id. 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 reasonable hourly rates as
"[t]he most useful starting point"); Brantley v. Surles, 804 F.2d
321, 325 (5th 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
(5th Cir. 1990) (reviewing hours for clear error). Accordingly, we
review the district court's determination of reasonable hours and
reasonable rates for clear error. See Blanchard v. Bergeron, 893
F.2d 87, 89 (5th 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 attorneys" 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
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the litigation." Alberti v. Klevenhagen, 896 F.2d 927, 933-34 (5th
Cir.), vacated on other grounds, 903 F.2d 352 (5th 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
applicant bears the burden of establishing entitlement to an award
and documenting 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. Id. "In
determining the amount of an attorney fee award, courts customarily
require the applicant to produce contemporaneous billing records or
other sufficient documentation so that the district court can
fulfill its duty to examine the application for noncompensable
hours." Id.; 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
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accept incomplete documentation "at face value"); Leroy v. City of
Houston (Leroy I), 831 F.2d 576, 585-86 (5th 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. Specifically, Fischbach points out that
LP&L submitted (1) only quarterly summaries 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 attorney, J.P. Madigan.
Failing to provide contemporaneous billing statements does not
preclude 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 conclude that the
district court failed to determine properly whether some of the
hours submitted were reasonably expended and that LP&L failed to
satisfy its burden of proving its entitlement to compensation for
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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 particular hours claimed were reasonably
expended. The court's reference to deeming hours to be
reasonably expended is troubling 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; therefore, 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." Id. 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.9 See
9
For example, the documentation for the fourth quarter of 1986
consisted of 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,
Louisiana. We deposed Lord Electric Company in New York City; we
-8-
Leroy I, 831 F.2d at 585 (reversing district court's acceptance of
total hours where billing records reflected that "some were
reconstructed, after-the-fact summaries"). Despite Fischbach's
urging us to eliminate entirely the hours covered by the quarterly
and monthly summaries and the period of November to December, 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
sufficient 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.10 Therefore, in the exercise of our
traveled to Lincoln, Nebraska and deposed Commonwealth Electric
Company. We reviewed 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 supplemental discovery, which we reviewed. The Magistrate
also ordered legal memoranda on the discovery of grand jury
materials, which we prepared after research. We reviewed the
memoranda filed by others.
We conferred with Company personnel and employees and
attorneys for Ebasco Services, Inc. concerning interrogatories and
requests for documents submitted to LP&L by defendants Fischbach &
Moore and Comstock. We reviewed extensive documentation produced by
Ebasco and prepared answers and response to defendants' discovery
demands. We conferred with opposing counsel and the Magistrate
concerning LP&L's production of documents.
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 bankruptcy 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.
10
See Leroy I, 831 F.2d at 585-86 (vacating district court judgment and
remanding for entry of amended award); Cobb v. Miller, 818 F.2d 1227, 1235 (5th
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).
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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 1) February 1986 to July 1987, 2) month-end
summary entries by Attorneys Slater and Stevenson during 1987 and
1988, and 3) November 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 district court may properly reduce or eliminate
hours when the supporting documentation is too vague to permit
meaningful review. See Leroy v. City of Houston (Leroy II), 906
F.2d 1068, 1080 (5th 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 accepted 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
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in LP&L's time records are indeed scanty as to subject matter.11
Nonetheless, our case law has not precisely defined the appropriate
standard, if in fact it is susceptible of being thus defined.
Accordingly, "not illuminating 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
information 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
11
LP&L's records contain vague entries such as "revise memorandum,"
"review 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
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
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1939 (instructing district 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 entries 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
preclude "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 programs limit the amount of input
for any given hourly or daily entry. Nevertheless, 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 litigant may not recover for hours
devoted solely to claims against other parties. See Hensley, 461
U.S. at 434-35, 103 S. Ct. at 1940 (work on unsuccessful 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
"common core of facts" or "related legal theories," a fee applicant
-12-
may claim all hours reasonably necessary to litigate those issues.
Hensley, 461 U.S. at 434-35, 103 S. Ct. at 1940.12
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.13
2
Next, Fischbach challenges the district court's determination
of the hourly rates awarded to LP&L. This too we review for clear
12
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 (5th Cir. 1991) ("[W]here time spent on
unsuccessful issues is difficult to segregate, no 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 (5th Cir. 1988) (finding no clear
error where unsuccessful claims "highly relevant" to successful claim); Cobb v.
Miller, 818 F.2d 1227, 1233 (5th Cir. 1987) (holding claims against multiple
defendants compensable because interrelated).
13
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.
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error. Powell v. Commissioner, 891 F.2d 1167, 1173 (5th Cir. 1990)
(holding that determination of reasonable rates is question of
fact, subject to clear error standard); Islamic Ctr. v. City of
Starkville, 876 F.2d 465, 468 (5th 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 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 followed 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 application, however, LP&L requested its
attorneys' usual rate.14
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 exceeds 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 customary billing rate to be prima facie reasonable).
14
LP&L also submitted affidavits from other local attorneys supporting
its rate request.
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After due consideration, 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.15 Otherwise, Fischbach contends,
LP&L will receive a windfall. Attorneys' fees awards should not
provide a windfall to plaintiffs. See Hensley, 461 U.S. at 430
n.4, 103 S. Ct. at 1938 n.4 (explaining statutory goal of avoiding
windfalls to attorneys); see also Riverside, 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
(5th Cir. 1990) (suggesting that "attorneys' fees awards are not
always purely compensatory in nature"); Brantley v. Surles, 804
F.2d 321, 327 (5th Cir. 1986) ("That the amount of the fee award
exceeds the amount billed by opposing counsel is also not
15
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 inappropriate). 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.
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determinative."). In Blanchard v. Bergeron,16 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." Id. 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. Id. at 96, 109 S. Ct. at 946. Moreover,
"[t]he established rates represent the opportunity 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 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.17 We review lodestar adjustments for abuse of
discretion. Palmco Corp. v. American Airlines, Inc., 983 F.2d 681,
688 (5th Cir. 1993) (reviewing award of attorneys' fees for abuse
of discretion). "It remains important, however, for the district
court to provide a concise but clear explanation of its reasons for
16
489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989).
17
The district court reduced the lodestar 15% for overstaffing and made
no other adjustments.
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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
(5th 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 reduction of the lodestar amount
bears the burden of establishing that a reduction 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.18 identifies these factors.19
18
488 F.2d 714 (5th Cir. 1974).
19
The factors include: 1) the time and labor required for the
litigation; 2) the 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.
-17-
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
involved, 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 remembered that in this instance the
plaintiff is entitled to a mandatory 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
professionals. . . . 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.20
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."21
Fischbach contends that the district court misapplied the law
when it refused to reduce the lodestar for LP&L's limited success.
20
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 surplusage; 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.
21
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 plaintiff are reasonable; therefore, the
language quoted by the district court does not necessarily support its
conclusion.
-18-
See Farrar v. Hobby, ___ U.S. ___, ___, 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 significant, 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 success"SQa 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 magnitude of LP&L's recovery, reciting the quantums
of both the demand and the recovery; that court expressly
"considered" the significance of the 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 lodestar 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
-19-
Hensley. But "appropriate" is not synonymous with "required."
Inasmuch as the district court here clearly did consider 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 Teachers Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 793, 109 S. Ct. 1486, 1494, 103 L. Ed. 2d 866 (1989)
("[T]he 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. Director,
Office of Workers' Compensation Programs, 991 F.2d 163, 166 (5th
Cir. 1993) (applying "limited success" analysis to mandatory fee
shifting statute);22 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).23
22
The statute at issue in Ingalls was the Longshore and Harbor Workers'
Compensation 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. § 928(a) (1988) (emphasis
added).
23
Neither case cited by the district court mandates an opposite
conclusion. Sciambra v. Graham News, 892 F.2d 411 (5th Cir. 1990), only
discussed the right to fees, not the amount thereof. Indeed, Sciambra explicitly
declined to address a "limited success" argument because it was not timely made.
Id. 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
-20-
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,
because 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 reasonable 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 appropriate
if the relief, however, significant, is limited in
comparison 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 explain . . . 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
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 (5th 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
disproportional, but whether it is reasonable in light of all factors, one of
which is the degree of success obtained.
-21-
short in another 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 consideration of that factor without requiring that a
reduction in lodestar necessarily follow. We, therefore affirm the
district court's handling of limited success and its effectSQor
lack thereofSQon the lodestar factor in this case.
Fischbach also asserts generally that the district court
failed to consider sufficiently other Johnson factors. A district
court's Johnson analysis, 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 explicit
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 (5th
Cir. 1992) (finding no abuse when district court discussed each
factor); Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987)
-22-
(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 analysis, 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 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
quantifying 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 (5th Cir. 1983) (en banc), we stated:
The relevant judgment for purposes of determining when
interest 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. If a 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.
-23-
Id. at 544-45.24
In Kaiser Aluminum & Chemical Corp. v. Bonjorno,25 the Supreme
Court refused to calculate interest from the date of an original
judgment that was invalidated because it was not supported by the
evidence. 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 `ascertained' in any meaningful way." Id. 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.26 The Eighth Circuit disagreed,27 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.
24
Because LP&L recovered under a mandatory fee shifting statute, it
became entitled to fees on the date of judgment on the merits.
25
494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990).
26
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) (awarding interest from date of award of
fees).
27
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).
-24-
Indeed, Copper Liquor and Kaiser are consistent in that in neither
case does interest accrue for amounts later reversed. See Copper
Liquor, 701 F.2d at 545 ("If a 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 district 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 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) ("[W]hen a prevailing party
seeks reimbursement for fees paid to its own expert witnesses, a
federal court is bound by the limit of § 1821(b), absent 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
statutory amounts, absent express statutory authority).
Rule 26(b)(4)(c), however, provides an independent basis for
recovery of expert fees as part of discovery. See Fed. R. Civ. P.
-25-
26 (b)(4)(C);28 see also Chambers v. Ingram, 858 F.2d 351, 361 (7th
Cir. 1988) (affirming 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
prevailing 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
recover all expenses of the litigation. See, e.g., Copper Liquor,
Inc. v. Adolph Coors Co., 684 F.2d 1087, 1100 (5th Cir. 1982)
(holding that "the Clayton Act embraces all the ordinary and
reasonable expenses of litigation"), modified on other grounds on
appeal after remand, 701 F.2d 542 (5th Cir. 1983). In West
Virginia University Hospitals, Inc. v. Casey,29 however, the Supreme
Court ruled that a prevailing plaintiff cannot recover expert fees
under a fee shifting statute unless the statute expressly provides
for the recovery of expert fees. 499 U.S. at ___, 111 S. Ct. at
1141-43 (absent specific statutory authorization, shifting of
28
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).
29
499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).
-26-
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 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 award fees and costs that Comstock
incurred in connection with the instant 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 Rules of 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 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
-27-
file the offer and notice of acceptance together with
proof of service thereof and thereupon the clerk shall
enter judgment.... 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.
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 prevailing 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 (5th
Cir. 1986). Consequently, 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 U.S. at 352, 101 S.
Ct. at 1150.
If a plaintiff takes nothing, however, Rule 68 does not apply.
In Delta Airlines, Inc. v. August,30 the Supreme Court limited Rule
68 to 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 U.S. at 351-52, 101 S. Ct. at
1149-50 (finding Rule 68 "simply inapplicable to this case because
30
450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981).
-28-
it was the defendant that obtained the judgment"); 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 (5th 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,
however; 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.
-29-
68. Accordingly, Rule 68 compares the amount of an offer of
judgment, whether made by one defendant or jointly made by multiple
defendants,31 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 defendantsSQnone of which were joint offerors with
ComstockSQis irrelevant to the Rule 68 inquiry. Consequently,
Comstock cannot recover its fees under Rule 68.32
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 (5th 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
31
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 (5th
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.
32
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.
-30-
Civil Procedure directs a district court to award costs to a
prevailing party,33 that court 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 (5th 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 necessarily 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 American 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.34 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
33
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 prevailing party unless the court
otherwise directs . . . .
Fed. R. Civ. P. 54(d).
34
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.
-31-
F.2d at 1552-53 (allowing fees for days prior to witnesses'
testimony). Fees for these preliminary days are limited, however,
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 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 attended 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 (5th Cir. 1970) (looking to Rule 16 for pretrial authorization
of models and charts). Absent pretrial approval of the exhibits,
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 requiring exhibits to be "exchanged prior to
trial in accordance with this order." We find no such
-32-
authorization in this language: Requiring the exchange of exhibits
prior to trial does not imply authorization of production of those
exhibits. Accordingly, the district court did not err in denying
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 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
simultaneous 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,35 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
35
See supra Part II (Fischbach Appeal), D.
-33-
under Local Rule 5.04E.36 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 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)
request and render judgment in favor of Comstock and against LP&L
in the sum of $7,254.98 to cover those items.37
C
Comstock's last contention is that the district court erred
36
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.
37
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. Accordingly, we merely hold that on the
specific facts of this case, Comstock may recover its Rule 26(b)(4)(C) costs.
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when it refused to award costs and fees to Comstock for pursuing
its cost application. 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 (5th Cir.) (affirming taxation of
costs for expenses solely related to fee litigation), vacated on
other grounds, 903 F.2d 352 (5th 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 Chemical Mfrs. Ass'n v. U.S.E.P.A., 885 F.2d 1276, 1283
(5th Cir. 1989) (approving 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 (5th Cir.
1982) (affirming district court's discretion 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
successful. Refusing to tax fees and costs for the instant cost
litigation fell well within the district court's proper exercise of
its discretion.
III
For the foregoing reasons, we affirm the district court's
determination 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
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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:38 (35,206.50)
Fees disallowed for Attorney Madigan (6,465.00)
Lodestar $ 4,285,604.80
15% reduction - overstaffing:39 (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
38
Percentage reduction applicable to (1) $115,070 reflected in quarterly
summaries for period from February 1986 to July 1987; (2) $154,080 reflected in
month-end summaries for two attorneys during 1987 and 1988; and (3) $82,915 for
charges in November and December 1988, for which no time records were submitted,
totaling in the aggregate $352,065.00.
39
This reduction was imposed by the district court.
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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.
AFFIRMED in part; MODIFIED and, as modified, AFFIRMED in part; and
REVERSED and RENDERED in part.
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 discretion 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, ___ U.S. ___, ___, 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,
however significant, is limited in comparison to the scope of the
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litigation as a whole."), did not apply to mandatory fee statutes.1
Accordingly, the district court did not even consider the magnitude
of LP&L's success.2 The Supreme Court explicitly has dictated
otherwise: Farrar and Hensley apply to all cases.3 Because the
district court failed to apply the correct legal standard, I would
reverse. Moreover, in my view, a recovery of less than five
percent of the damages requested and against only two of twelve
defendants 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 determine what percentage
reduction, if any, is warranted by the record's demonstration 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.
1
See supra, per curiam opinion, text accompanying note 21.
2
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.
3
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.