Case: 15-31105 Document: 00513697755 Page: 1 Date Filed: 09/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2016
No. 15-31105
Lyle W. Cayce
Clerk
GEORGE T. MOENCH, as Co-Trustee on behalf of George T. Moench
Irrevocable Trust; JENNIFER J. AREGOOD, as Co-Trustee on behalf of
George T. Moench Irrevocable Trust,
Plaintiffs - Appellees
v.
MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, L.L.C., In
personam,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before KING, SMITH, and COSTA, Circuit Judges.
KING, Circuit Judge:
A towing vessel owned and operated by Defendant–Appellant Marquette
Transportation Co. Gulf-Inland, L.L.C., allided with a private vessel, the SES
EKWATA, owned by the George T. Moench Irrevocable Trust. Plaintiffs–
Appellees, trustees of the George T. Moench Irrevocable Trust, sued Marquette
for damages. After a bench trial, the district court awarded damages and
attorneys’ fees against Marquette. Marquette appeals those awards, as well
the district court’s exclusion of certain expert testimony from trial. For the
reasons that follow, we AFFIRM.
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I. FACTUAL AND PROCEDURAL BACKGROUND
The SES EKWATA was a 116 foot-long, fiberglass-hulled vessel
originally built for military and commercial use, but later converted for private
use. In that conversion, the EKWATA was stripped of many components,
essentially leaving a bare hull and 8,000 square feet of interior space. In 2005,
Plaintiff–Appellee George T. Moench purchased the essentially bare hull of the
EKWATA for $200,000. 1 Between 2005 and 2011, he spent $217,000 in
materials and equipment to refurbish the vessel. Moench, along with a marine
carpenter, also spent thousands of hours laboring on the EKWATA, where
Moench lived several months each year.
In late May 2011, Moench moved the EKWATA to a fleeting facility along
the Atchafalaya River to keep it safe during expected flooding. On June 10,
2011, the M/V SALVATION, a steel-hulled tug owned and operated by
Defendant–Appellant Marquette Transportation Co. Gulf-Inland, L.L.C.,
which was towing two barges, allided 2 with the EKWATA while it was moored
at the fleeting facility. Prior to the allision, the SALVATION’s captain knew
that the Atchafalaya River was experiencing historic water levels, which
created the potential for extreme cross-currents and required him to exercise
extreme caution. Yet he proceeded down the river without assistance from
another tug, and upon arriving at a holding position in the river, left the
controls for a cup of coffee while the on-duty deckhand—who was supposed to
be on watch—was below deck. By the time the captain returned to the controls,
the river’s current had taken control of the SALVATION. After unsuccessfully
1 The EKWATA’s registered owner was the George T. Moench Irrevocable Trust. For
ease of reference, we refer to the George T. Moench Irrevocable Trust and George T. Moench
interchangeably as “Moench.”
2 An allision is “[t]he contact of a vessel with a stationary object such as an anchored
vessel or a pier.” Allision, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Apache Corp.
v. Global Santa Fe Drilling Co., 435 F. App’x 322, 323 n.1 (5th Cir. 2011) (per curiam).
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attempting to regain control, the captain decided to allide with the EKWATA
to avoid damaging the two barges in tow.
The allision between the steel-hulled SALVATION and fiberglass-hulled
EKWATA severely damaged the EKWATA 3 and caused it to take on water.
After the allision, Moench attempted to determine the full extent of the damage
by dry-docking the EKWATA; however, he was unable to find anyone willing
to assume the liability of transporting the severely damaged vessel for
inspection. The EKWATA was subsequently vandalized, which resulted in
various materials and equipment Moench purchased being stolen.
Moench filed the instant suit on June 6, 2012, invoking the admiralty
and maritime jurisdiction of the district court and asserting general maritime
law negligence and unseaworthiness claims against Marquette. Moench
claimed the EKWATA was a total (or constructive total) loss as a result of the
allision and sought the pre-casualty value of the vessel. 4 Up to and through
trial, Marquette contested liability, despite the captain of the SALVATION
admitting the facts outlined above. On the issue of damages, Moench testified
at trial (without objection from Marquette) to the substantial financial
investment he had made in the EKWATA. Moench and Marquette also elicited
the testimony of experts at trial to assist the court on the issue of damages.
Moench’s expert testified that the pre-casualty value of the EKWATA was
$850,000–$1.5 million. He also testified that the replacement cost, less
depreciation, of the EKWATA was $5 million–$7.5 million. Marquette’s first
expert testified that the EKWATA was a constructive total loss as a result of
3 Among other things, the allision resulted in compression damage; an eighteen foot
hole on the starboard side of the vessel; another twelve foot by six foot hole on the starboard
side of the vessel; various splits and fractures in the hull extending below the water line; and
internal damage.
4 Moench also sought punitive damages and lost business revenue from Marquette.
The district court dismissed these claims, and they are not directly at issue in this appeal.
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the allision and that its pre-casualty value was $50,000. Marquette’s second
expert also testified that the EKWATA was a constructive total loss,
concluding that repair costs would be “hundreds of thousands” of dollars while
the EKWATA’s pre-casualty value was $75,000–$100,000. The third expert
presented by Marquette, Larry Strouse, was originally hired and designated
by Moench. He testified that repair costs would be $285,000, but admitted this
estimate was inconclusive of all damages from the allision because the
EKWATA could not be dry-docked to fully assess the damage below the
waterline. At trial, Marquette also sought to elicit testimony from Strouse that
the pre-casualty value of the EKWATA was $120,000. The district court,
however, concluded that he could not testify to that opinion because it was not
expressed in his expert report.
After the bench trial, the district court found Marquette at fault. On the
issue of damages, the district court, after considering all of the testimony,
found that the EWKATA’s pre-casualty value was $417,000 and that the cost
of repairing the EKWATA would exceed that value. Based on these findings,
the district court concluded that the EKWATA was a constructive total loss
and awarded Moench $322,890, representing the pre-casualty value of the
EKWATA, less the value of materials and equipment that Moench could have
preserved following the allision. The district court also found that Marquette’s
handling of the case was “an abuse of the process and bad faith” and expressed
its “feel[ing]” that an award of reasonable attorneys’ fees and costs to Moench
was justified under those circumstances. Moench subsequently requested
$323,138.90 in fees and costs based on Marquette’s handling of the case,
submitting detailed declarations and billing records to substantiate its
request. Marquette responded that its handling of the case did not warrant
sanction. Marquette also objected to the amount of fees and costs requested by
Moench, principally asserting that it should be reduced as disproportionate to
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the amount involved and the results obtained. The district court agreed with
this latter objection in part and reduced Moench’s request by $27,702.81,
awarding him $295,436.09. Marquette timely appealed.
II. DISCUSSION
Marquette asserts that the district court erred in (i) making its
constructive total loss determination; (ii) refusing to allow Larry Strouse to
opine on the EKWATA’s pre-casualty value; and (iii) imposing attorneys’ fees
as a sanction for its handling of the case and awarding the amount of fees it
did. We address each assertion in turn.
A. Constructive Total Loss Determination
Marquette asserts that the district court’s pre-casualty valuation of the
EKWATA and its finding that the costs of repair would exceed that valuation
are not supported by the record, particularly the expert testimony introduced
at trial. Thus, Marquette argues, the district court erred in concluding that
the EKWATA was a constructive total loss and in awarding Moench damages
on that basis.
We review the district court’s constructive total loss determination for
clear error. See Ryan Walsh Stevedoring Co. v. James Marine Servs., Inc., 792
F.2d 489, 491 (5th Cir. 1986). A vessel is a total (or constructive total) loss
when repair is not physically or economically feasible, such as when the cost of
repairs exceeds the vessel’s pre-casualty value. See Gaines Towing & Transp.,
Inc. v. Atlantia Tanker Corp., 191 F.3d 633, 635 (5th Cir. 1999); see also
Pillsbury Co. v. Midland Enters., Inc., 715 F. Supp. 738, 763 (E.D. La. 1989).
In the case of total (or constructive total) loss, the owner is entitled to recover
the pre-casualty value of the vessel (i.e., the price which would result from the
hypothetical fair negotiations between an owner willing to sell and a purchaser
desiring to buy). See Standard Oil Co. of N.J. v. S. Pac. Co., 268 U.S. 146, 155–
56 (1925); see also Gaines Towing & Transp., 191 F.3d at 635. When a vessel’s
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pre-casualty value cannot be established by recent comparable sales, there is
no precise rule or formula for valuation. See Standard Oil, 268 U.S. at 155–
56. Instead, the district court “should consider any and all evidence before it”
that bears on value. Greer v. United States, 505 F.2d 90, 93 (5th Cir. 1974).
This includes evidence of the vessel’s purchase price and the cost of any
improvements to the vessel. Id. “[O]ther evidence such as replacement cost,
depreciation, expert opinion and the amount of insurance” should also be
considered to determine pre-casualty value. King Fisher Marine Servs., Inc. v.
NP Sunbonnet, 724 F.2d 1181, 1185 (5th Cir. 1984); see also Carl Sawyer, Inc.
v. Poor, 180 F.2d 962, 963 (5th Cir. 1950). The court must then make an
“informed judgment.” Bloomfied S.S. Co. v. Brownsville Shrimp Exch., 243
F.2d 869, 873 (5th Cir. 1957). In doing so, the court is not bound by any single
piece of evidence, including the opinions or formulas elicited by the parties’
experts. 5 See Bloomfield, 243 F.2d at 873 (rejecting argument that district
court was bound by vessel’s purchase price, book value, or similar values
reached by expert surveyor); see also Lukens v. Comm’r, 945 F.2d 92, 96 (5th
Cir. 1991). If the district court’s valuation “is within the range of figures that
may properly be deduced from the evidence,” it is not clearly erroneous, even
5 Marquette seems to argue that, even after it presented evidence, the district court
was (and consequently this court is) bound by the evidence presented in Moench’s case-in-
chief. However, this court made clear in Greer that the district court “should consider any
and all evidence before it.” 505 F.2d at 93. This necessarily included the evidence Marquette
elected to present. Our conclusion in Greer is consistent with the general rule that, where
both parties have offered evidence, “the party supported by the weight of the evidence will
prevail regardless of which party bore the burden of persuasion, proof, or preponderance.”
Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 332 (5th Cir. 2010) (quoting Blodgett
v. Comm’r, 394 F.3d 1030, 1039 (8th Cir. 2005)); see also Belk v. Charlotte-Mecklenburg Bd.
of Educ., 269 F.3d 305, 328–29 (4th Cir. 2001). It is also consistent with our general practice
of testing the sufficiency of the evidence on appeal by viewing the entire record. See Wealden
Corp. v. Schwey, 482 F.2d 550, 551 (5th Cir. 1973) (rejecting request “for a review of the
evidence as it stood when plaintiff closed the presentation of his evidence”); see also Fed. Ins.
Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007); Gaffney v. Riverboat Servs. of Indiana, 451
F.3d 424, 451 n.29 (7th Cir. 2006).
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if the valuation is not “a figure as to which there is specific testimony.” Lukens,
945 F.2d at 96 (quoting Anderson v. Comm’r, 250 F.2d 242, 249 (5th Cir. 1957)).
The district court had the benefit of witnessing the testimony at trial and
was in the best position to resolve the conflicting testimony concerning value
and repair cost. See Ryan, 792 F.2d at 491. With regard to value, the district
court found that the EKWATA was an uncommon vessel which could not be
valued based on comparable sales and that much of the evidence on valuation
was unreliable. It credited the vessel’s purchase price ($200,000) and the cost
of materials and equipment spent improving it ($217,000) as the most reliable
of the recognized indicia of value. See Greer, 402 F.2d at 93. The district court’s
$417,000 valuation was near the middle of the experts’ opinions ($50,000–$1.5
million) and well below replacement cost, less depreciation ($5–7.5 million)—
both of which are recognized indicia of value. See King Fisher Marine Servs.,
724 F.2d at 1185. The district court’s valuation was “within the range of
figures that may properly be deduced from the evidence” and thus not clearly
erroneous. Lukens, 945 F.2d at 96 (quoting Anderson, 250 F.2d at 249); see
also Greer, 505 F.2d at 93; Bloomfield, 243 F.2d at 874.
With regard to repair cost, the district court heard the undisputed
testimony at trial that the steel-hulled SALVATION’s allision with the
fiberglass-hulled EKWATA caused severe damage to the EKWATA. The
damage was severe enough that all of the expert witnesses agreed (in spite of
their differing opinions on value and repair cost) that the EKWATA was a total
loss, either real or constructive. The district court credited the expert
testimony that repair costs would total “hundreds of thousands” of dollars. It
also noted Strouse’s testimony “that repairs would be in the range of $285,000
was, admittedly, incomplete and inconclusive” because Strouse could not fully
assess the damage below the waterline without having the EKWATA dry-
docked. Although Strouse’s estimate nominally included damage below the
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waterline, we cannot say, given the other testimony and Strouse’s uncertainty
about damage below the waterline, that the district court clearly erred in
finding that the cost of repairing the severely damaged EKWATA exceeded its
pre-casualty value and, therefore, the EKWATA was a constructive total loss.
B. Exclusion of Expert Testimony
Marquette next asserts that the district court erred in refusing to allow
Larry Strouse to opine on the EKWATA’s pre-casualty value, even though he
did not express an opinion on that in his expert report. According to
Marquette, Strouse was a non-retained expert witness and thus was not
required to provide any report under Federal Rule of Civil Procedure
26(a)(2)(B). Therefore, argues Marquette, Strouse should have been allowed
to testify on any “facts or data obtained or observed in the course of the
sequence of events giving rise to the litigation,” whether included in his report
or not. See Fed. R. Civ. P. 26(a)(2)(C).
This court reviews a district court’s exclusion of expert testimony for
abuse of discretion. See Brown v. Ill. Cent. R. R. Co., 705 F.3d 531, 535 (5th
Cir. 2013). But even when this court finds an abuse of discretion, it will not
reverse the district court’s ruling unless it affected the party’s “substantial
rights.” 28 U.S.C. § 2111; see also Fed. R. Evid. 103(a). The party claiming the
error bears the burden of demonstrating its substantial rights were prejudiced.
See McClain v. Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008). “A ruling
has affected the substantial rights of the party if, when considering the
evidence presented at trial, the ruling had a substantial effect on the outcome
of the trial.” U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409,
430 (5th Cir. 2014). The exclusion of cumulative evidence does not affect a
party’s substantial rights. See Sanford v. Johns–Manville Sales Corp., 923
F.2d 1142, 1148 (5th Cir. 1991).
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Assuming arguendo that the district court abused its discretion in
refusing to allow Strouse to opine on the EKWATA’s pre-casualty value,
Marquette has failed to demonstrate that this refusal substantially affected
the outcome of the trial. Strouse’s proffered testimony would have been merely
cumulative of other testimony on pre-casualty value offered at trial. Marquette
repeatedly emphasized that the EKWATA’s pre-casualty value was
substantially less than the amount testified to by Moench’s expert (and what
the district court ultimately found). Marquette elicited testimony from two
experts that the pre-casualty value of the EKWATA was less than $100,000
because the EWKATA was “cosmetically and mechanically deficient.” As
Marquette itself recognizes on appeal, Strouse’s testimony would have simply
“confirmed each of these opinions.” Because Strouse’s testimony was
admittedly cumulative, the district court’s error, if any, did not affect
Marquette’s substantial rights. See Sanford, 923 F.2d at 1148.
C. Attorneys’ Fee Award
Marquette finally argues that it had a good faith basis for questioning
Moench’s pre-casualty valuation; thus, the district court was not justified in
awarding attorneys’ fees as a sanction for its handling of the case. 6 Moreover,
Marquette argues, the award was excessive.
We review a district court’s determination of an attorneys’ fee award
under an abuse of discretion standard and the findings of fact supporting the
award under a clearly erroneous standard. See Black v. SettlePou, P.C., 732
6 On appeal, Marquette also argues, as it did in the district court, that the parties’
settlement negotiations were improperly considered in making the fee award. In ruling on
this argument, the district court stated that the parties’ settlement negotiations were not the
basis for its fee award, rather they were “simply additional evidence of Marquette’s actions
which the Court found throughout the case to be an abuse of the process and bad faith.” With
respect to the district court’s statement that the parties’ settlement negotiations were not the
basis for its fee award, “[w]e have no choice but to believe [the district court].” Gulf States
Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A 1981).
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F.3d 492, 496 (5th Cir. 2013). The general rule in federal court, the so-called
“American Rule,” is that litigants are responsible for their own fees. Alyeksa
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 257 (1975). Federal
courts, however, possess “inherent power” to assess fees as sanctions when the
losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” 7 Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991) (quoting
Alyeksa Pipeline Serv., 421 U.S. at 258–59). Under this test, sanctions are
warranted when a party “knowingly or recklessly raises a[n objectively]
frivolous argument, or argues a meritorious claim for the purpose of harassing
an opponent.” Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 561 & n.4 (5th
Cir. 2015) (quoting Rodriguez v. United States, 542 F.3d 704, 709 (9th Cir.
2008)). Thus, even when a party is pursuing a meritorious claim or defense,
sanctions may be assessed when the party “abuse[s] . . . the judicial process in
the method of prosecution” of that claim or defense. Batson v. Neal Spelce
Assocs. Inc., 805 F.2d 546, 550 (5th Cir. 1986). Pursuing “an aggressive
litigation posture” is not an abuse of the judicial process, “[b]ut advocacy
simply for the sake of burdening an opponent with unnecessary expenditures
of time and effort clearly [is].” Id.
7 When “invoking its inherent power” to sanction, a district court “must comply with
the mandates of due process.” Chambers, 501 U.S. at 50; see also Roadway Express, Inc. v.
Piper, 447 U.S. 752, 767 (1980). Although Marquette asserts, in passing, that the district
court’s award was made sua sponte, it does not offer any supporting argument or citation to
authority indicating that the district court failed to comply with due process. Accordingly,
any due process argument Marquette could have made was inadequately briefed and
therefore waived. See Fed. R. App. P. 28(a)(8)(A); see also Willis v. Cleo Corp., 749 F.3d 314,
319 (5th Cir. 2014). But even if it was not, we could not conclude that the district court
abused its discretion by failing to give Marquette the opportunity to be heard at a meaningful
time and in a meaningful manner—the fundamental requirement of due process, Armstrong
v. Manzo, 380 U.S. 545, 552 (1965)—because it considered and responded to all of Marquette’s
various written submissions. See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191–
92 (5th Cir. 1996) (“[T]he opportunity to respond through written submissions usually
constitutes sufficient opportunity to be heard.” (citing Spiller v. Ella Smithers Geriatric Ctr.,
919 F.2d 339, 347 (5th Cir. 1990))).
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Here, the district court detailed the factual findings underpinning its
conclusion that Marquette abused the judicial process and acted in bad faith
during the course of the litigation. Specifically, the district court found that
Marquette contested liability up to and through trial even though it “clearly
knew the extent of its liability based on the circumstances of the case and the
actions of its captain . . . [and] was fully aware of the fact that [Moench] had
no liability whatsoever for this allision.” The district court further found that
Marquette “presented two experts who were so lacking they could not even
properly name the vessel [at issue].”
On appeal, Marquette does not specifically challenge any of these
findings. Instead, Marquette asserts that the fee award was unwarranted
because Marquette had a good faith basis to challenge the quantum of damages
and thus in proceeding through a trial. But even if true, this fact did not justify
Marquette’s intransigence on liability or the means by which Marquette
defended Moench’s damages claim—namely, one expert who, according to the
district court’s findings, opined on value “without including any comparables,
without considering the equipment on the vessel, without an accurate
description of the vessel, and without reliable underlying information” and a
second expert who, according to the district court’s findings, “not only failed to
correct the glaringly incorrect information set forth in [the first expert’s]
report, but incorporated it into his own.” See Gate Guard Servs., 792 F.3d at
562–63; Batson, 805 F.2d at 550–51. We cannot say that the district court’s
findings on bad faith were clearly erroneous or that the court abused its
discretion in awarding Moench fees as a sanction based on those findings.
Having concluded that the district court did not abuse its discretion in
awarding attorneys’ fees as a sanction, we must address the amount of fees
awarded by the district court. The parties agree that the two-step lodestar
method applies to the calculation of the fee award. Under this method, a court
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must first calculate the “lodestar” amount “by multiplying the reasonable
number of hours expended on the case by the reasonable hourly rates for the
participating lawyers.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th
Cir. 1998). “There is a strong presumption of the reasonableness of the
lodestar amount.” Black, 732 F.3d at 502. But the district court may increase
or decrease the lodestar amount “based on ‘the relative weights of the twelve
factors set forth in Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974)].’” Id. (quoting Saizan v. Delta Concrete Prods. Co., 448 F.3d
795, 800 (5th Cir. 2006)). 8 In reviewing lodestar adjustments, this court
reviews the district court’s analysis “only to determine if the court sufficiently
considered the appropriate criteria.” Id. (quoting La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995)). A district court must provide “a
reasonably specific explanation for all aspects of a fee determination.” Perdue
v. Kenny A., 559 U.S. 542, 558 (2010). This does not, however, require a district
court to recite or even mention the Johnson factors, so long as “the record
clearly indicates that the district court has utilized the Johnson framework as
the basis for its analysis.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669
F.3d 632, 642 (5th Cir. 2012) (internal quotation marks and citation omitted);
see also EEOC v. Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009).
Marquette does not challenge the district court’s determination of the
lodestar amount itself. Rather, it challenges the district court’s decision not to
8 The twelve Johnson factors are as follows: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform the legal services
properly; (4) the preclusion of other employment by the attorney due to acceptance of the
case; (5) the customary fee for similar work in the relevant community; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the undesirability of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717–
19.
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reduce (or further reduce) that amount based on the Johnson framework,
namely the degree of success obtained by Moench. According to Marquette,
the district court’s factual findings do not indicate that the court even
considered the Johnson framework. We disagree. Although the district court
did not explicitly recite the Johnson factors, its findings clearly evince that the
Johnson framework was the basis for its analysis. Specifically, they
demonstrate that the district court considered Marquette’s objection to the fee
request, namely that the fees sought were disproportionate to the amount
involved and the results obtained (Johnson factor 8); carefully reviewed the
detailed declarations and billing records submitted by Moench to determine
which fees could be reduced or eliminated based on Marquette’s objection; and
did, in fact, reduce or eliminate certain fees based on Marquette’s objection.
The district court’s findings, like others we have reviewed, certainly “could
have used more details,” Forbush v. J.C. Penny Co., 98 F.3d 817, 823 (5th Cir.
1996), but nonetheless they make sufficiently clear that the district court did
“consider the relationship between the extent of success and the amount of the
fee award,” Combs v. City of Huntington, 829 F.3d 388, 395 (5th Cir. 2016)
(alteration omitted) (quoting Farrar v. Hobby, 506 U.S. 103, 115–16 (1992)).
Marquette’s arguments with respect to the Johnson framework do not
persuade us that the district court abused its discretion by declining to make
further downward adjustment to the fee award.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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