Louisiana Power & Light Co. v. Kellstrom

agreed PER CURIAM: government’s contention, holding fugitive’s “primary that the goal” had Yvonne Dilworth asks us to decide that the fleeing punishment been offense, for drug “underlying upon offense” which she was not the failure-to-appear offense. Id. at 373. harboring fugitive sentenced for her son jumper The bond commits a second offense appear should have been his failure to appear judicial he fails to pro- judicial proceedings drug and not his initial ceedings odd, indeed, [would and it be] son, Niekles, offense. Dilworth’s Frederick impose what is in this and will be in most pled guilty distributing had crack cocaine significantly lighter cases a penalty on one 1,000 school, elementary within an feet of who harbors the dual offender than on one appear Niekles subsequent failed to suspect who hides a from initial arrest. proceedings. After officers found Niekles in home, hiding at Dilworth’s she was Id. at agree convicted 372.4 We with the Eleventh harboring fugitive, § analysis see 18 U.S.C. 1071 Circuit’s of this issue. The district 1993). (Supp. V applied The district court drug used Niekles’ correctly offense § Sentencing and, 2X3.1 of underlying Guidelines1 in determining offense Dil- using drug Niekles’ conviction as the worth’s under- base offense level under U.S.S.G. offense,2 lying § twenty- sentenced Dilworth to Accordingly, 2X3.1. we AFFIRM Dil- prison seven months in years and three of worth’s sentence.

supervised argues release.3 Dilworth

the district court should have used her son’s

failure-to-appear underlying offense as the purposes

offense for sentencing. Reviewing the interpreta district court’s LOUISIANA POWER & LIGHT Sentencing novo,

tion of the Guidelines de COMPANY, Plaintiff- 3742(e) (1988 1993); § Supp. U.S.C. & V see Appellee, Lara-Velasquez, United States v. Cir.1990), we resolve this question impression of first in this Circuit KELLSTROM, Francis S. reject argument. Dilworth’s In United al., Defendants, et Gonzalez,

States v. 2 F.3d 369 Cir.

1993), Kellstrom, defendant also was Moore, Francis S. convicted of Fischbach harboring fugitive Inc., Corporation, appear who had failed to L.K. Com drug in court on a Company, Inc., offense. Id. at A Inc., stock 370. LKC warrant was Defendants-Appellants. fugitive’s issued for the failure appear, fugitive apprehended No. 93-3756. at the defendant’s home. Id. When the Appeals, United States Court of fugitive’s court used the failure-to- Fifth Circuit. appear charge underlying as the offense in 2X3.1, sentencing gov § under U.S.S.G. April 1995. argued ernment that the primarily defendant accessory was an drug to the offense and

thus should have been sentenced on that

basis. Id. at 371. The Eleventh Circuit 2X3.1, provides 1. Section 2X3.1 § that the base offense 3. Under Dilworth's base offense level level § for a conviction under 18 U.S.C. 1071 was limited to 20. “6 levels lower than the offense level for the underlying ...." offense United States Sentenc- Moreover, guidelines generally instruct Commission, § Guidelines Manual 2X3.1 that, guideline provisions "where two or more (Nov. 1993). appear equally applicable, guidelines au- but application 2X3.1, only provi- thorize the sion, one such § "underlying

2. Under offense” is provision greater use the that results in the "the offense as to which the defendant is convict- 1B1.1, 2X3.1, being accessory.” § § ed of offense level.” U.S.S.G. U.S.S.G. comment. comment, (n.l). (n.5); Gonzalez, see also 2 F.3d at 371-72. Rouse, Marks, New Or- Koch Howard Moore, leans, LA, Kellst- Fischbach & rom, Corp. Fischbach Shimamoto, Hoffmann, Peter R. Elinor Bros., City, York New Coudert & Moore. Oles, McGarry, Morrison &

Arthur D. Seattle, WA, Corp. Rinker, Fischbach Belleau, Kutcher, Ashley L. Ni- A. Robert Heller, New Or- Tygiers, Bronfin cole & S. Co., Inc. and leans, LA, & L.K. Comstock LKC, Inc. Staub, Jr., O’Keefe, Perry R. R.

Michael Orleans, LA, Lemann, New & Monroe appellees. WIENER, M. GARZA EMILIO

Before BENAVIDES, Judges. Circuit PER CURIAM: (“LP L”) Light Co. & Power & Louisiana for antitrust and multiple defendants1 sued violations, jury rendered RICO ágainst five defen- in LP & L’s favor verdict remainder against LP & L on the dants and § 153 to 15 U.S.C. of its Pursuant claims. 54(d),4 the district court and Fed.R.Civ.P. L on its attorneys’ fees awarded prevailing defen- claims and to the successful Inc., Moore, recover the antitrust ... shall den in laws Fischbach & 1. The defendants were sustained, Kellstrom, damages by him threefold the Corp., S. Common- Fischbach Francis suit, Co., Foley including attor- L.K. a reasonable Howard P. the cost of wealth Electric Co., Inc., LKC, Inc., ney's fee. Commonwealth Comstock Cos., Eastman, § Stur- Keys, Lewis E. J.R. John D. U.S.C. Jr., Murphy. gill, M. and Paul 54(d) provides: 4.Rule Inc., Moore, Corp., 2. Fischbach Except express provision therefor is Kellstrom, Electric S. Commonwealth Francis Co., States or in a the United either statute of made Foley P. Co. and Howard rules, attorneys' fees than costs other these provides: prevailing 3. This section to the be allowed as course shall .... party directs injured unless the court otherwise [A]nyperson his busi- shall be who 54(d). anything property forbid- Fed.R.Civ.P. ness or reason on theirs.5 dants Defendants Fisehbaeh & and requests Rule 26 and Fischbach’s Rule Moore, Inc., Corp., Fisehbaeh request. and Francis S. (collectively “Fisehbaeh”), Kellstrom appeal appeals Fisehbaeh the award of fees and fees to LP & L. L, costs to LP & contending that the district Co., Inc., Defendants L.K. Comstock & 1) court erred failing to reduce the num- LKC, (collectively “Comstock”), Ine. appeal awarded; 2) ber of hours failing to reduce

the amount of the district court’s taxation of hourly 3) awarded; rates failing to re- costs LP & L. part, We affirm in duce the lodestar actually did; more than it modify part, and affirm in and reverse and 4) awarding postjudgment interest from the part. render judgment date of merits, on the rather than 5) from the award; date of the final fee

I awarding fees for LP experts’ & L’s response discovery denying while the same to suit, In its antitrust and RICO L& Fisehbaeh. appeals Comstock its award of alleged that the conspired defendants had costs, arguing that the district court erred rig the electrical bids for the Waterford 3 1) refusing to award fees under its Rule 68 power plant project. Shortly nuclear before 2) judgment; offer of awarding fees for LP & trial, Comstock made an offer experts’ response L’s to discovery while de- LP L& under Rule 68 of the Federal Rules 3) nying Comstock; the same to refusing and Procedure,6 of Civil which offer LP L& to award fees and pursuing for costs its cost Following refused. approximately years six recovery. pretrial preparation eight and weeks of trial, jury found for LP & L on its II

bidriggihg against Fisehbaeh, claims Com- monwealth Electric and the Howard P. The Appeal: Fisehbaeh Foley against Co.7 but formd LP & L on its claims Comstock. Although LP L& Fisehbaeh challenges several elements of requested had damages, million in $15-17 the award of attorneys’ fees and costs to LP jury only $500,000.8 awarded it First, L.& Fisehbaeh asserts that the dis- trict court in determining erred the “lode- trial, LP After & L application an filed star” by amount accepting both the total $281,668.66 an $5,205,- in costs and hourly hours and the by rates submitted 296.96 in fees. application Comstock filed Second, & L. it disputes inadequate as eventually $71,264.07. for costs that totalled adjustment court’s downward of the Comstock also moved to amend the Third, lodestar. disagrees Fisehbaeh attorneys’ include its fees based on its date chosen the district court for the judgment. Rule 68 offer of start of postjudgment Last, interest. it as- receiving multiple After motions to review serts that the district court should either elements the various applica- cost and fee deny LP experts’ & L’s costs for response to tions, the district court hearing held a on all discovery grant or par- these costs to both applications. such challenged por- Fisehbaeh ties. tions of LP request, & L’s fee and LP L& challenged Comstock’s request. cost The A district court took the matter under submis- eventually sion and findings its entered and In addressing Fischbaeh’s assertion conclusions, $4,182,893.73 awarding in fees that the district erred in its court calculation $33,743.47 and to LP L costs & and lodestar, in costs of the base we note that determina denying Comstock but Comstock’s Rule 68 tion of attorneys’ reasonable fees involves LKC, Inc., 5. Comstock & L.K. Co. and are the 7. Commonwealth Electric Co. and the Howard only prevailing ap- defendants involved in Foley parties this appeal. P. Co. are not to this peal. (1988), § 8. Under 15 U.S.C. 15 amount was (Comstock Appeal), See Part II recovery A. $1.5 trebled for a total million. infra 324 hourly applicant ... should rates. The procedure. Hensley v. Ecker

two-step 1939, 424, 433, in a manner hart, billing maintain time records 461 U.S. S.Ct. reviewing identify Initially, the district that will court L.Ed.2d 40 enable Hensley, at number must the reasonable distinct claims.” U.S. determine Bode, 1941; expended litigation and the F.2d at on the at see also of hours 103 S.Ct. (“[T]he hourly participating seeking party rates reimbursement reasonable Then, must lawyers. Id. the district court ... has the burden of estab- fees reason multiply expend- lishing attorney reasonable hours the number hours Stenson, hourly Blum v. ed, only by pre- rates. able can that meet burden 1541, 1544, 79 L.Ed.2d senting adequate for the evidence product (defining base fee be what should be court to determine hours rate); reimbursement.”). reasonable hours reasonable included Hensley, at 1939 at U.S. must Accordingly, the documentation reasonably ex (defining product hours verify the court to that the be sufficient for pended hourly “[t]he rates has its burden. Id. “In deter applicant met Brantley v. starting point”); useful most award, mining attorney of an amount (5th Cir.1986) (stat Surles, .require customarily applicant courts multiplied to be normal ing hours rate contemporaneous billing records or produce fee). multipli product of this basis other sufficient documentation so lodestar, cation is the which the district duty court can fulfill to examine adjusts accepts upward or or then either noncompensable application for hours.” downward, depending the circumstances Id.; Hensley, see also De Brantley, case. at 325. (“The party seeking an award S.Ct. at questions terminations of hours rates supporting submit evidence should States, 919 fact. See Bode v. United claimed.”). rates Thus the hours worked and (5th Cir.1990) 1044, 1047 (reviewing for hours may court reduce number of a district the error). Accordingly, the dis we review clear vague hours if the documentation is awarded court’s of reasonable trict determination Alberti, incomplete. F.2d at 931 or See and rates error. hours reasonable for clear (refusing accept incomplete to documentation 87, 89 Bergeron, F.2d See Blanchard value”); Leroy City “at face Houston Cir.1990) (5th (reviewing underlying factual I), (Leroy 831 F.2d 585-86 error). clear determinations for (finding and clear error abuse of discretion accepted “faulty records” court reduction); making Hensley, 461 without cf. challenges Fischbach the district court’s 433, 103 (counseling at at 1939 that S.Ct. by LP hours claimed allowance certain the documentation of hours is inad “[w]here noted, step determining As first in L. the equate, may court the reduce is fees an evaluation accordingly”). award reasonably expended. the number of hours that Forwarding Fischbach contends Baughman Freight v. Wilson (3d Cir.1978). clearly accepting erred in all of the hours The 583 F.2d by strongly suggests cause it that the district cause record contains sufficient informa- example, 9. For for & the documentation the fourth dants Fischbach Moore and Comstock. We quarter following produced reviewed extensive documentation of consisted sum- prepared mary: by response Ebasco and and answers discovery to defendants' demands. We con- deposed We to New York and traveled defen- opposing Magis- ferred with and counsel LKC, dants Comstock and Inc. We reviewed concerning production docu- trate L's of concerning extensive documentation Fisch- ments. L, to & bach & Moore’s bids and we extensively We with LP L's in- conferred Kenner, deposed Fischbach Moore in Louisi- vestigator reports concerning and reviewed deposed Company ana. We Lord Electric price-fixing litigation involving defen- other dants, Lincoln, City; New we traveled York to Ne- attorneys and we conferred with other deposed braska and Commonwealth Electric injured parties. prepared other bank- of We transcripts Company. We reviewed of all ruptcy pleadings discovery to obtain E.C. from depositions produced. these Company. Ernst brought complaints discovery formal $23,900 total A fee was submitted for this argued Magistrate, the Court and them to the Unfortunately, pro- work. this documentation provide who each ordered defendants upon no could if vides basis which we determine supplemental discovery, we which reviewed. $23,900 $123,900 $2,390 reasonably or or Magistrate legal also ordered memoranda expended There for these services. is no indica- materials, discovery grand jury task, on the which expended per tion of the number hours whom, what, prepared we after research. We reviewed the for and at what rate. Without information, filed others. Hensley memoranda such basic no determina- Company personnel regarding We conferred with and number hours tions spent "the reasonable Services, employees attorneys litigation hourly and for Ebasco on the and Inc., concerning interrogatories requests Hensley, and rate” can be 461 U.S. at made. for documents to LP & L submitted defen- S.Ct. at support hours when reduce or eliminate of a reason- fair allow a determination tion to permit vague to is too ing documentation our however, to exercise fee, choose able City Leroy v. review. See meaningful our own.10' award on modify the fee option to (5th 1068, 1080 II), F.2d (Leroy Houston our discretion Therefore, in the exercise illuminating Cir.1990) “not (striking hours as and record analysis of the a careful and after “vague as to subject or matter” as to the court, we of the district the determinations I, done”); Leroy what was precisely for reduction percent a ten appropriate deem ac (reversing when district and hours inadequate documentation that were from records all hours cepted July 1) February 1986 to for requested fees lacking missing, or “scanty,” completely 2) by At- summary entries 1987, month-end detail); Inc. v. see also H.J. explanatory during 1987 Stevenson torneys Slater Cir.1991) Corp., Flygt 3) December November such as vague entries (reducing hours for Attor- request hours for the 1988. As research,” preparation,” and “trial “legal virtually the record ney Madigan, client”). “met to a deter- helpful any information devoid record, we reviewing instant After were his hours or how of whether mination time in LP & L’s many entries agree that ac- litigation. We beneficially on this spent subject mat- scanty toas are indeed records attorneys’ fees deny any award of cordingly Nonetheless, has not our case law ter.11 Attorney submitted the hours based on standard, if appropriate defined precisely Madigan. being defined. susceptible of thus in fact isit entries challenges illuminating also several to the sub- Fisehbach as Accordingly, “not what precisely vague support “vague determination or ject as too matter” sufficient district court spent gives on this they were was done” how or whether reject accept fee or leeway which may properly within litigation. The vague entries such contain I, (vacating L’s records 11. LP & Leroy F.2d at 585-86 10. See memorandum,” entry pleadings,” remanding for "review judgment and as “revise district court Miller, award); documents,” “correspondence.” Cobb amended "review Cir.1987) (reversing district following lack the Specifically, hours we find the award); see rendering judgment on fee court and completely support specificity to required Journal Serv. Providence Placement Home requested: (1st (opting remand). modify than rather solely LP ed applications against parties. similar that submitted to claims other See Litigants Hensley, 434-35, L. take their chances when & 461 U.S. at 103 S.Ct. at (work applications, they submitting pro such on unsuccessful claim not com- (de little from pensable); Baughman, vide information which deter mine the hours “reasonableness” of the ex fendant from compensating plaintiff relieved d pended vaguely on tasks referre to as for expended against hours litigating other “documents,” “pleadings,” “correspon defendants). or against But when claims multi stating without what dence” was done with parties ple share “common core facts” or precision. greater Hensley, 461 U.S. at theories,” legal applicant “related may a fee (instructing 103 S.Ct. at 1939 district claim all reasonably necessary hours to liti “reasonably court to hours not exclude ex gate Hensley, those issues. 461 U.S. at 434- pended”). 1940.12 S.Ct. at whole, Viewing as a the time records Proving an antitrust case involves given the district court’s famil demonstrating among multiple collusion de case, iarity with including quality this fendants; requires plaintiff this prove period work over a of several against the same facts and issues several years, say we cannot that the any parties against party. recover one clearly refusing in erred to reduce the hours (1988) § 2 (defining See 15 U.S.C. violation question vagueness. for These entries persons conspire”). who “combine or We may inadequacy border on as a matter of are here that LP & satisfied L’s claims law, practical but we mindful consid against the other defendants involved a com daily practice erations of the law in this facts, mon core of and that LP & L was thus day age preclude “writing book” to spent litigating entitled to claim hours it excruciating profession describe detail the against Consequently, the other defendants. al for each or services rendered hour fraction we conclude that district court did not that, recognize of an hour. also in refusing through err to sift LP & L’s computerized timekeeping, many era data hours and eliminate spent litigation those processing programs limit the amount of in against the other defendants.13 any put given hourly daily entry. or Nevertheless, attorneys anticipate ap who

plying for reimbursement of should en

deavor to be terse. less Next, challenges Fischbach LP criticizing addition hourly L’s district court’s determination of the inadequate vague, records as rates to LP awarded & L. This too complains that the district court failed to review for error. clear Powell Commis sioner, exclude hours L expended litigat prevail A (holding the other defendants. that determination

ing litigant may fact, subject not recover hours question devot- to clear rates Rivera, City adjust 12. See also Riverside v. results obtained the lodestar accord 436-37, 561, 570, 2686, 2692, 91 L.Ed.2d 466 ingly. Hensley, 461 U.S. at 103 S.Ct. at facts); (finding common core of Abell v. ("The attempt may identify Potomac Ins. Cir. eliminated, specific hours that should be or it 1991) (“[W]here spent time on unsuccessful is may simply account reduce award to for the segregate, sues is difficult to no reduction of fees success.”); HJ, Inc., limited F.2d at 925 260 denied, 911, required."), is cert. 504 U.S. 112 (permitting district court to either cut non-suc 1944, (1992); S.Ct. 118 L.Ed.2d 549 Nash v. cessful reduce hours or lodestar reflect suc Cir.1988) Chandler, 567, (5th (f 848 F.2d 572 indi cess); League United States Football v. National ng no clear where error unsuccessful claims 408, (2d Cir.1989) League, 887 Football F.2d 414 claim); "highly relevant” to successful Cobb v. (holding that court abuse did not discre Miller, 1227, (5th Cir.1987) (hold 818 F.2d 1233 reducing cutting tion in lodestar rather than non- against multiple compen- claims defendants hours), denied, 1071, interrelated). successful 493 cert. U.S. sable because 1116, (1990). 110 107 S.Ct. L.Ed.2d 1022 plaintiff's When a 13. claims be disentan- cannot B. address this issue in section infra gled, the district court's focus should shift to the 328 Hensley, plaintiffs. See City standard); v. vide a windfall Islamic Ctr. error 4, (5th Cir.1989) n. at 1938 4

Starkville, 465, 461 at 430 n. 103 S.Ct. 468 U.S. 876 F.2d statutory goal avoiding (explaining wind hour (using to evaluate clear error standard Riverside, awarded). attorneys); see falls also To reasonable ly determine rates 580, (“Congress rates, regu 106 S.Ct. at U.S. at court considers the statutory ‘ade HJ, fee awards be intended prevailing as rates. lar rates well counsel, Inc., competent but ... regular quate to attract (considering F.2d at 260 ” rates); attorneys.’ (quot produce Laffey v. not windfalls prevailing rates as well as 1011, 4, Cong., Airlines, Inc., ing S.Rep. No. 94th 2d Sess. 6 Northwest 5908, (D.C.Cir.1984) (1976), reprinted in 1976 U.S.C.C.AN. (calling for “reference to the 5913)). Nevertheless, paid amount by compari the actual customary billing rate followed question the community dispositive in not prevailing to en fees is the rate son to Stenson, attorney’s rates. See Blum customary the rate is reasonable sure that 1541, 1547, 1021, 886, 895-96, reasonable”), denied, S.Ct. cert. (determining that courts During L.Ed.2d 891 87 L.Ed.2d 622 rates, not cost-based litigation, LP should use market part the latter of the instant Inc., Stores, they rates); Safeway hourly Alizadeh v. attorneys rates L’s reduced the Cir.1990) (suggesting contingent 238 n. 6 charged by exchange 25% in for a always “attorneys’ are any recovery. its fees awards not fee share of eventual nature”); Brantley purely compensatory in requested LP L application, Surles, attorneys’ usual rate.14 (“That amount of fee award exceeds the the customary attorney’s billing When an rate by opposing the counsel is also amount billed attorney requests rate is the at which the Berg determinative.”). not In Blanchard v. computed and that rate the lodestar be is eron,16 Supreme the Court refused to limit range prevailing the market within judges to trial the contract between the rates, the court should consider this rate his plaintiff and counsel. 489 U.S. at fixing hourly rate to allowed. be agreement pro S.Ct. at 946. “Should fee contested, pri- not When that rate is it is ..., vide than a the de less reasonable requested ma reasonable. When facie required be fendant should nevertheless attor- compensation rate of exceeds the pay higher amount.” Id. [market-based] ney’s charge usual remains but within at 109 S.Ct. at 944. customary community, in range district court should consider whether the appeal The issue we review on here requested rate is reasonable. attorneys charged is not how much the but Islamic, Powell, 469; at see whether the fees awarded customary (holding billing 891 F.2d at 1175 reasonable; reasonable, if they are reasonable). prima After rate to be facie then definition there will be no windfall. consideration, the due found Moreover, at “[t]he Id. 946. requested that LP & L’s rate was reason- represent opportunity established rates able. away cost of what firm turned order to litigation.” argues Laffey, that LP & L take 746 F.2d at 24.

Fischbach any of Our of the record reveals that both should not recover amount excess review Otherwise, charged requested rates actually paid.15 Fisch- the rates contends, range prevailing LP L a wind were within the bach & will receive well rates Attorneys’ pro- community. ap- fall. fees awards The district court should generally inappropriate). en- 14. & L affidavits from other also submitted enhancements cases, however, attorneys supporting request. refer local its rate hancements these requests multipliers of a in excess Therefore, argument inap- requested characterizes LP & L’s rate. Fischbach's "contingen- plicable improper "multiplier” or to the facts of case. rate as an cy Pennsylvania v. Delaware enhancement.” See Council, 711, 731, 67 Valley 109 S.Ct. 103 L.Ed.2d 483 U.S. 16. 489 Citizens’ 3078, 3089, (holding L.Ed.2d 585 S.Ct. rates, Adjustment proved requested the and we no find of the lodestar this Circuit clear error this choice. involves the assessment of dozen factors. opinion Georgia

Our in Johnson Highway Express, Inc.18 identifies these factors.19 B challenges Fischbach also the dis Primarily, Fischbach contests the adjustment trict court’s of the lodestar.17 district court’s refusal to reduce the lodestar adjustments We review lodestar for abuse of success,” to reflect LP L’s& “limited the Corp. discretion. Palmco v. American Air eighth of the Johnson factors. In consider (5th Cir.1993) lines, Inc., ing factor, this the district court ruled: (reviewing award of fees for abuse obtained, though The results disappointing discretion). important, of “It remains how plaintiff quantum, were nonetheless ever, provide for the district court to a con involved, significant. The amount the $15— explanation cise but clear of its reasons sought $500,000 17 million as opposed to Hensley, the fee award.” 461 U.S. at jury awarded the insignificant is not 1941; at Brantley, see also inherent is principle therein the of the (“Our F.2d at concern is not that a matter.... be [I]t should remembered complete litany given, findings be but that be that plaintiff instance the is entitled complete enough to assume a review which mandatory shifting award, fee not a can determine whether the court has used discretionary one based on limited success proper factual in exercising criteria dis achieved. just compensation.”); cretion to fix Nisby v. Court, Commissioners

Cir.1986) (“When Significant the district court does not here is fact plaintiff the that explain attorney’s exposed rapacious its reasons for the it the avarice of educated awards, adequately professionals.... we are unable to review executives and Such award.”); propriety the of Baugh the fee conduct cuts the thread of the fabric of our man, (requiring explanation society F.2d at 1219 consequences invariably get and lodestar). adjustment citizenry. district court’s borne the The Court consid- exposure ers of this antitrust violation and inspect We therefore the district court’s racketeering activity important to be an analysis only lodestar if the determine highly significant result obtained.20 sufficiently appropriate considered the Moreover, Moreover, criteria. Fischbach bears the bur- in commenting on various cases showing den of that further reduction parties, is war- cited the district court men- USFL, (“[A] ranted. See at approval language tioned with such as “re- party advocating covery the reduction of attorney’s the lode- the[] star establishing amount bears the regardless burden must be sustained the amount justified.”). that a reduction damages awarded.”21 12) 17. long-standing; court reduced the lodestar 15% made in awards similar overstaffing adjustments. and made no other cases. 488 F.2d at 717-19. 1974). that, implication 18. 488 F.2d 714 Cir. 20. The district court's factor, success limited some distinction exists 1) mandatory discretionary 19. The factors include: the time between fee shift- and labor is, most, 2) required litigation; surplusage; por- novelty for the unfortunate issues; 3) complication findings required tion the court's that the skill and conclusions issues; 4) properly litigate beyond follow demonstrate whether the cavil the court attorney degree litigate had to did indeed "consider" LP & L’s suc- refuse other work to case; 5) fee; 6) implicitly explained why attorney’s customary cess and no there was whether 7) contingent; the fee is fixed or additional lodestar reduction on account of it. whether imposed any client or case circumstances time constraints; 8) Citing League the amount involved and re- United States Football v. Nation obtained; 9) (2d Cir.1989), experience, reputation, sults League, al Football 10) denied, ability attorneys; whether the case was cert. "undesirable;" 11) (1990). USFL, however, type attorney-client L.Ed.2d 1022 does not relationship relationship proposition requested and whether that stand for the all fees 330 undoubtedly success, we for limited star court the district that contends being a as that decision affirmed to would have reduce it refused law when the

misapplied As we discretion: of exercise proper limited success. L’s LP & the lodestar — “ap- is —, note, —, a such reduction Judge U.S. Hobby, Garza v. See Farrar (1992) “appropri- Hensley. But 494 574, L.Ed.2d 566, under propriate” 121 In- “required.” most cru with synonymous the degree of success the is not (calling ate” a clearly did amount determining the here court the district in cial element asmuch at U.S. its rea- fee); Hensley, explain 461 success reasonable limited consider (“A is fee award lodestar reducing reduced the at 1943 103 further S.Ct. for not sons relief, significant, however have if the be said appropriate therefor, cannot court that the scope of to the comparison in the is limited failure reduce its discretion abused whole.”). litigation as a fac- considered of that the basis lodestar a factor tor. thing to consider it is one But act another to quite (which required) and is that, to a outset acknowledge at the the dis- discretionary with (which is upon it ruling appears to court’s district degree, the dissent, Judge court). his partial trict to recover right of the determination confuse that unqualified statement the makes Garza the reasonable determination the even consider not “did court the district Teach Texas State that fee. amount state- success” —a LP & L’s magnitude Dist., 489 Indep. Sch. v. Garland ers Ass’n portion light of the in puzzling is ment 782, 793, 109 S.Ct. U.S. quoted is opinion that court’s the district (“[T]he the (1989) degree of L.Ed.2d 866 supra. When note accompanying the text the reason goes to success plaintiffs overall pronouncements analysis and that court’s ..., avail not the the award ableness abuse- the deferential context in the read non.”); Ingalls vel a fee ability of apply must that we standard of-discretdon Director, v. Inc. Shipbuilding, Office of help issue, cannot reviewing this F.2d Programs, 991 Compensation Workers’ statement. Judge Garza’s disagree with but suc (5th “limited (applying 163, 166 expressly ad- court district only did the Not shifting statu mandatory fee analysis cess” recovery, LP & L’s magnitude of the vert to Co. George Hyman Constr. te);22 also see demand of both reciting quantums (D.C.Cir.1992) Brooks, v. “con- expressly court recovery; that and the regarding Hensley standard (holding that countervail- significance sidered” all fee applies to reasonable amount L’s victo- aspects of ing, non-pecuniary mandatory statutes, including shifting why implicitly, least explained, at ry, ones).23 to the lode- reduction no it additional made LP found Although the district discretion, district court If, in its star. important and victory was “an L’s limited the lode- & reduction a reasonable had made League, 887 reasonable; League Football v. National Football plaintiff are antitrust by prevailing denied, Cir.1989), (2d cert. therefore, quoted language (1990), L.Ed.2d necessarily support its conclusion. does not damages received nominal that the state does award,” to an entitlement affect the "does not Long- Ingalls was the statute issue 22. The "may abe results limited also states that but it Act, Compensation and Harbor Workers' shore (emphasis reducing award.” a fee factor used added). Clayton §§ Like U.S.C. (1988), pro- Act, § LHWCA see 15 U.S.C. be award- plaintiff “shall successful that a vides urges us to affirm & L also attorney’s 33 U.S.C. fee-” a reasonable ed be not fee award need because a court's award added). 928(a) (emphasis § damages be reasonable. proportional to the Jaynes, 999 F.2d Discount See Meineke Muffler Cir.1993) (“|T|he disparity of these court man- cited case 23. Neither support reversal will not ... alone Gra- amounts Sciambra opposite conclusion. dates here, not whether Cir.1990), ”). is only News, issue .... ham it is dis- because reversed fees, award should be amount there- right not the discussed light whether it is proportional, but Indeed, to ad- explicitly declined of. Sciambra degree factors, one of which of all argument it because success” a “limited dress obtained. success United timely at 417. States made. Id. obtained, handling highly significant the court s of limited result Su- success its finding signif- preme has held that Court effect—or lack thereof—on fac- the lodestar satisfy district icant result alone does not the tor in this ease. duty magnitude court’s to evaluate the generally Fischbach also asserts that that result. the district court to failed consider sufficient to affirm the We are unable decisions be- ly other A Johnson factors. district court’s low, however, the because District Court’s however, analysis, Johnson need not be me opinion properly did the not consider rela- ticulously appellate detailed to survive re tionship between the extent of success and “If view: the district court has articulated the amount of the fee award. The court’s clearly ..., applied the criteria we will finding [significant] that ‘the extent the require findings the trial court’s to be so clearly justifies the of a relief rea- excruciatingly explicit in this area minuti attorney’s sonable fee’ does not answer the ae that decisions of fee awards consume question light of what is ‘reasonable’ in paper more than did the eases from which emphasize that level of success. that Blanchard, they 89; arose.” at see inquiry a finding the does not end with Sunderman, Longden also plaintiff significant that the obtained relief. (5th Cir.1992) (finding no abuse when A if appropriate reduced fee award is the factor); district court discussed each Cobb v. relief, significant, is limited Miller, (5th Cir.1987) litigation comparison scope to the of the as when, (refusing although to reverse award a whole. analyze every district court did not Johnson 438-39,

Hensley, 461 at U.S. 103 S.Ct. at factor, the “district court has utilized the added); Blum, (emphasis see also analy Johnson the framework as basis (criticizing at sis, fashion, summary proceeded has not in a although fee award because the award “was and has arrived at an amount that be can part based in on the District Court’s determi- just compensation”). said to be As in the nation litiga- that the ultimate outcome of the factor, instance the limited success the great large tion “was of benefit to a class of did not abuse its discretion needy people,’” the district court “did not it to refused reduce the lodestar fur exactly explain ... how determination on ther the basis of its the consideration of award”). respect, In affected fee that other Johnson factors. finding appears the district court’s here required analysis. fall a short bit of the The analysis appears

court’s short in fall C respect: LP L another & failed to recover at Fischbach next contends that defendants; all from several and if the dis- post- district court should have awarded trict facet court considered this of this short- judgment only from interest the date of success, fall in it clearly LP & L’s did not award, quantifying fee rather order than that it did See supra indicate so. n. 15. underlying judgment. from the date Nevertheless, prepared we are not to find (1988) provides § post- U.S.C. district court failed to consider judgment “interest shall be calculated from success; relatively & L’s limited neither are ” entry judgment the date of the .... hold prepared we that the court abused its question judgment here is whether the refusing discretion to reduce LP & L’s supplemental judgment or the merits lodestar further reflect less than total verifying award should be used. success, or monetarily either all de- Liquor, Adolph Inc. Copper Coors important fendants. We find the fact that (en (5th Cir.1983) banc), we stated: degree of success but one of 12 Johnson purposes de- factors, The relevant testing and that our deferential termining begins to run is only the discretion of the when interest look right judgment establishing requir- of that consideration factor without costs, If, may necessarily that a reduction in or as the case be.... lodestar We, course, follow. affirm the usual the amount of costs is therefore court, clerk, appellate whether will district court or an interest later determined reduced, judg- interest from the date of the the award is increased or nonetheless run expressly byor allowing ment costs either will run from the date on the revised award judgment unless, ren- legal implication. course, If is judgment a original right reversed.”). that not mention the to dered does any is the amount allowance of fees, party attorneys’ prevailing and the is that Kaiser not over- We therefore hold did by unconditionally to such fees entitled Copper rule so that the district court Liquor, statutory right, from interest will accrue awarding postjudgment here did not err judgment. the date of judgment on the interest from the date the merits. Id. at 544-45.24 Corp. Chemical v. Kaiser Aluminum & D

Bonjorno,25 Supreme Court refused to the original from the date calculate interest challenge, con In its final judgment it that invalidated because was $45,330.96in for LP tests the fees award by U.S. at supported not the evidence. 494 discovery. experts’ response L’s to Ordi 835-36, judg 110 at 1576. “Where the S.Ct. narily, expert fees is limited recovery of to damages supported ment on was not the statutory under 28 the amounts authorized evidence, damages not ‘ascer the have been §§ U.S.C. 1821 and 1920. See Fit Crawford any meaningful way.” Id. Fisch- tained’ Inc., Gibbons, 437, ting 482 v. J.T. U.S. Co. that, attorneys’ bach contends because fees 439, 2494, 2496, 96 L.Ed.2d 385 107 S.Ct. judg quantified are time of the not the (1987) (“[W]hen prevailing party re a seeks merits, must over ment on the Kaiser have paid expert to its imbursement for fees own Kaiser, Copper Liquor. ruled Since three witnesses, a court is federal bound the have this issue. The Sev Circuits addressed 1821(b), explicit § limit of absent contract or Tenth held that Kaiser enth and Circuits supersede Copper Liquor,26 statutory authority contrary.”); to see does disagreed,27 Eighth deciding Hosps., that Virginia Circuit Inc. v. also West Univ. squarely 83, 84-88, Kaiser not address the issue in Casey, 1138, did 111 499 U.S. S.Ct. Jenkins, Copper Liquor. 931 F.2d at 1276 n. (1991) 1140-41, (limiting 113 L.Ed.2d wit agree Eighth 3. We with Circuit. Be amounts, statutory ness to ex fees absent judgment cause the earlier Kaiser was statutory authority). press invalid, party had no entitlement to dam 26(b)(4)(C), provides an in- Rule Thus, ages reasoning in on that date. dependent recovery expert basis for fees Copper Liquor’s Kaiser is consistent part discovery. See Fed.R.Civ.P. not mandate that interest should accrue until 26(b)(4)(C);28 Ingram, also Chambers v. see party becomes entitled the award. (7th Cir.1988) 351, (affirming 858 F.2d Indeed, Copper Liquor and Kaiser are con 26(b)(4)(C) separate Rule award of costs as in that in case interest sistent neither does fees). Accordingly, § from Cop 1821 witness accrue for amounts later reversed. See (“If correctly granted court per Liquor, judgment 701 F.2d at L’s 26(b)(4)(C) request for Rule costs. fees later modified (7th (awarding 24. Because LP & L recovered under a mandato- F.2d 553 interest statute, fees). ry shifting it date of became entitled from on the date merits. Missouri, 1273, v. 27. Jenkins 931 F.2d (8th Cir.) rule), Liquor (adopting Copper cert. 108 L.Ed.2d denied, 116 L.Ed.2d (1990). 26(b)(4)(C) provides: 28. Rule 26. MidAmerica Sav. & Loan v. Shear Fed. Ass’n Inc., Express, require party seeking [T]he court shall that son/American (10th Cir.1992) (stating "[k]ey discovery pay expert Kaiser shall reasonable fee damages holding spent responding discovery is the date in a time .... 'ascertained' Kane, 26(b)(4)(C). meaningful way”); Fleming County v. Fed.R.Civ.P. 26(b)(4)(C) But applies Rule A parties, just both prevailing party. argues Comstock The district court should also have awarded ruling erred in that it should not recov 26(b)(4)(C) Rule costs to Fisehbach. The er fees and costs from LP & L under Rule 68 argument considered this but found the of the Federal Rules of Civil Procedure. In moot, that, issue concluding even if Fisch terpretation of Rule 68 is an issue of law bach costs, was entitled to these LP & L which we review de novo. Knight Snap- could have recovered them under the fee On Corp., Tools shifting provisions of the antitrust laws. See Cir.1993); Erdman Cochise County, 926 § 15 U.S.C. (allowing recovery of Cir.1991). Rule 68 states: suit). cost of disagree. anyAt time days more than 10 before the Previously, we prevailing have allowed a begins, trial party a defending against a plaintiff antitrust expenses recover all of may claim upon serve the party adverse See, litigation. the e.g., Copper Liquor, Inc. judgment offer to allow against be taken Adolph v. 1087, 1100(5th Coors 684 F.2d the defending party.... days If within 10 Cir.1982) (holding Clayton that “the Act em after the of service the offer the adverse braces all ordinary the and reasonable ex party serves written notice that the offer is penses litigation”), of on other modified accepted, party either may then file the grounds appeal remand, after offer and notice acceptance together (5th Cir.1983). 542 Virginia West Uni proof of service thereof and there- versity Hospitals, Casey,29 however, Inc. v. upon the clerk shall judgment.... enter Supreme the Court ruled that a prevailing If judgment the finally obtained the plaintiff cannot expert recover fees under a offeree is not more favorable than the offer fee shifting statute unless the statute ex the pay offeree must the costs incurred pressly provides recovery for the expert making after the of the offer.... 86-92, fees. 499 U.S. at 111 at S.Ct. (absent specific statutory authorization, Fed.R.Civ.P. 68. shift fees does not expert include purpose The of Rule 68 is to encourage the fees). witness We therefore conclude that litigation settlement of by providing an incen- expert 26(b)(4)(C) fees are Rule costs and are tive to settle “in those cases in which there is Casey. recoverable Consequently, under strong a probability that plaintiff the will we reverse the district court’s denial of obtain judgment a but the amount of the Fischbach’s entitlement to recover Rule recovery is Airlines, uncertain.” Delta Inc. 26(b)(4)(C) And, costs. as Fisehbach docu v. 346, 352, August, 450 1146, 101 S.Ct. mented its costs & L did not refute (1981). 67 L.Ed.2d 287 Rule re- 68 quantum, the judgment render in favor of quires a plaintiff prevailing pay the costs against Fisehbach and LP & inL the re litigation “in single the circumstance quested $10,994.21 amount of for Fischbaeh’s plaintiff where the accept does not the defen- expert expenses. witness dant’s offer of judgment which is more favor- Appeal: Comstock able than the judgment plaintiff ultimate- ly obtains.” Johnston v. Drilling Penrod Comstock challenges several elements of Co., Cir.1986). 869 Conse- the district court’s final award of costs and quently, when a plaintiff rejects a Rule 68 First, fees. it contests the denial of Rule 68 offer judgment, “he will lose some of the Second, fees. disputes Comstock the final of victory recovery benefits if his is less than assessment certain elements the taxa- Delta, offer.” 450 U.S. at 101 S.Ct. Last, tion of costs. it insists that the district at 1150. , court neglected to award fees and costs that Comstock incurred in connection with plaintiff If a nothing, however, takes Rule instant portion fee-and-costs of the suit. Airlines, not apply. does In Delta Inc. 29. 499 U.S. S.Ct. L.Ed.2d by com- operates Rule 68 other defendants. Rule 68 limited Court Supreme

August,30 the John- amounts. clearly defined paring two judg a plaintiff obtains to cases which is of comparison ston, 870. This F.2d at defendant; rule is not against ment “costs including “money property,” or actually prevails a defendant applicable accrued,” offer and out 351-52, set then plaintiff. over by the offeree.” obtained finally “judgment “simply (finding Rule 68 at 1149-50 com- Rule Accordingly, Fed.R.Civ.P. it was the because this case inapplicable to judgment, an offer the amount pares judgment”); see obtained defendant jointly or defendant by one made whether n. 1 Hunt, Landon defendants,31 by multiple made (commenting that defendant Cir.1991) (3d by the any, taken if judgment, amount plain Rule 68 when under not recover could If no or offerors. offeror against the offeree dismissed); v. United Allen claim tiff’s plaintiff offeree is taken judgment 689, Corp., Steel States joint offeror or defendant the offeror against to a defen 68 costs (refusing Rule applies. defendants, rule the Delta noted that Court prevailed). The dant who losing usually assessed costs an offer made Comstock of defeat but incident as normal plaintiff a nothing against L, L took and LP LP & “a non- so that exception is created this recovery against other L’s LP & Comstock. of risk not run the settling plaintiff does were of which defendants —none non-offeror ordi not that do burdens suffering additional irrelevant with Comstock —is joint offerors defeat_” 450 U.S. at to a narily attend Consequently, Corn- inquiry. 68 the Rule 352, at 1150. 101 S.Ct. 68.32 under Rule its fees recover stock cannot recover it should contends that Comstock because, of a take instead B costs Rule 68 $500, L recovered LP & nothing judgment, chal Additionally, Comstock inappli is that Delta argues Comstock of the approval court’s the district lenges defeated, not L LP & was because cable against of costs final taxation court’s clerk of of victo “benefits of the some it lose should erroneously clerk L, that the arguing reason accept Comstock’s failing

ry” not overturn will items. We certain struck judgment. of able offer a of costs absent taxation court’s Co. Nissho-Iwai of discretion. recovery was clear abuse Here, LP & L’s plaintiff Sales, Inc., F.2d Crude however; v. Occidental defendants, plaintiff against other (5th Cir.1984); Studiengesell 1530, 1551 Com- nothing defendant against LP & L took Co., 713 Kodak v. Eastman Kohle mbh words, Comstock defendant In other stock. schaft Cir.1983). (5th Although Rule 128, 131 against totally plaintiff actually prevailed 54(d) Procedure Rules of Civil of Federal any argu- presented not has L. Comstock to a to award costs a district compari- directs Rule compel a that would ment court cannot party,33 that prevailing & L judgment to LP of of its offer son “[E]x- statute. not authorized any costs L LP & obtained judgment that joint a was made with 1146, cause the settlement 67 L.Ed.2d offer- 101 S.Ct. 30. or, unrelated defendant. with an not (1981). court's appealed also 32. Comstock question previously encountered 31. We have not offer of finding Rule 68 that its may recovery against defendant one of whether applicability regarding the timely. decision Our respect to determination with apply to Rule moot. that issue renders of Delta v. Penrod In Johnston defendant-offeror. another Cir.1986), 54(d) provides: Co., 33. Rule Drilling is joint provision unapportioned express of- therefor Except made when two defendants or the United States vacated the a statute of plaintiff. We either in judgment to the made fer of rules, attorneys’ fees than costs other had not in- these because it decision court’s party unless prevailing to the allowed defendant be against the first shall the settlement cluded .... directs court otherwise the second defen- Rule 68 calculation in the 54(d). Fed.R.Civ.P. distinguishable, be- Johnston dant. penditures categories expenses may for those district court production authorize the may § doing be if listed in 28 U.S.C. recovered trial exhibits so would “facilitate the they just, only speedy, inexpensive disposition are allowed that section.” if Co., 16(c)(16); Copper Liquor, Adolph Inc. v. Coors 684 the action.” Fed.R.Civ.P. see also Cir.1982). Corp. Section 1920 Johns-Manville v. Cement Asbestos Co., 1381, 1385(5th Cir.1970) Prods. provides: (looking pretrial to Rule 16 for authorization judge any or A clerk the United charts). pretrial ap of models and Absent may following: States tax costs proval exhibits, however, party may request production not later taxation of the (3) printing Fees and disbursements Johns-Manville, opponent. costs to its witnesses; 1385; F.2d at see Studiengesellschaft, exemplification copies Fees for (reversing 713 F.2d at 133 award of exhibit papers necessarily use in obtained for party pretrial costs where had obtained case; authorization). Comstock asserts that

pretrial order production authorized the (1988). Moreover, requiring its exhibits § exhibits to be 28 U.S.C. “ex “[i]tems changed prior to proposed by winning parties as trial accordance with this costs should order.” find always given scrutiny.” be no such authorization in careful Farmer language: Requiring exchange v. Arabian American Oil exhib prior imply to trial does not L.Ed.2d authorization production Accordingly, those exhibits. Comstock first contends that the dis the district court did not in denying err trict court erred it refused to allow recovery by of Comstock the costs of its each day witness fees for that two of its exhibits. experts It attended trial.34 is true that a party may only recover witness fees not for challenges Comstock also testified, days on which the witness but also court’s affirmance of the clerk of court’s valu- spent attending for days the trial beforehand. ation of Comstock’s allowable photocopying (allow Nissho-Iwai, 729 F.2d at 1552-53 charges. presents On this claim Comstock days prior for fees to witnesses’ testimo instead, virtually legal argument; no it sim- ny). preliminary days Fees for these ply alleges conelusionally that both clerk limited, however, days that witnesses and the district court abused their discretion. spend holding testify. themselves available to record, reviewing After we find that the States, See Hurtado v. United of carefully clerk assessed each item 1157, L.Ed.2d request. Consequently, we find no abuse (1973) (allowing days spent for “in readi fees of discretion either the clerk or the dis- Nissho-Iwai, testify”); ness to 729 F.2d at trict court. for (granting days expected fees witness And, Fischbach, challenges like Comstock to, actually, testify). but did not The district the district court’s simultaneous award approved its clerk’s determination that 26(b)(4)(C) Rule to LP costs & L and denial only portion days a Pike Janik and It same costs to Comstock. submitted expended attended the trial were in the ex requests its share such cost the sum pectation they testify would on those $7,254.98; although LP L and & contests days. We find no abuse of discretion request the timeliness Comstock’s and decision. complains eonclusory ain manner that Com-

Comstock next insists that the dis stock overstated its claim and failed to offer calculation, recovery trict court should have allowed evidence of its method of truly disputed. costs defendants’ trial A itself is exhibits. dollar amount not experts, days days 34. Comstock’s Pike Jan- David and EJ. for Pike three for Janik. This ik, trial, days respectively. attended 38 equated days spent testifying number of days, Pike testified on three and Janik testified on plus travel before and after. day. actually granted one The district court five 26(b)(4)(C) litigation), on other to fee vacated already related Rule have discussed We Cir.1990). (5th grounds, appeal,35 of Fischbach’s in our review not, court’s disturb shall applies as well. Comstock analysis here recovery liti regarding for cost decision fees costs in the amount to these is thus entitled id.; an of discretion. See gation absent abuse requested. U.S.E.P.A., Ass’n see also Chemical Mfrs. that, if Com- responds LP & L even (approving 26(b)(4)(C) recovery of Rule allowed stock is spent applica compensation for time costs, was not request these costs its amount was within district tion because timely Rule 5.04E.36 Comstock under Local discretion); Co. v. Spray-Rite Serv. court’s timely original application for taxa filed its Cir. Monsanto costs, request for not add its tion of but did 1982) (affirming court’s discretion later. Al Rule costs until nine months spent liti awarding for time costs imposes thirty though 5.04E Local Rule fees). right recov gating Comstock supporting day applications cost limit on and fees it re only part ered the costs memoranda, specifically refers to this rule request, challenging quested. Comstock’s party in by “the whose costs recoverable only partially LP & L too was successful. Ct. favor is rendered.” Fed.Local instant Refusing tax fees and costs Rules, E.D.La., 5.04E. We have al Rule litigation fell well within the district cost 26(b)(4)(C) ready that Rule costs are noted proper court’s exercise of its discretion. prevailing parties; and we hold limited 26(b)(4)(C) fees do not fall within that Rule III of costs covered Local Rule kinds reasons, foregoing For the we affirm Chambers, F.2d at 360- 5.04E. See also L’s determination district court’s (“The advisory committee notes Rule hourly attorneys, rates for its but 26(b)(4)(C) may issue state that the court modify the district court’s determination pay discovery condition to order to fees as a hours, reducing LPof & L’s reasonable delay may ‘or it order until after discov specific portions of chal- 10% the those fees 26(b)(4)(C))). ery.’” (quoting Fed.R.Civ.P. lenged by inadequately de- Fischbach as Accordingly, we that the district court hold tailed, entirely eliminating portion of and improperly denied Comstock’s Rule court’s award that allowed 26(b)(4)(C) request judgment render in and $6,465.00 Attorney Madigan. for in fees in against LP L favor of Comstock and (1) also affirm the district court’s 15% over- $7,254.98 cover items.37 sum of those staffing LP & L’s lodestar reduction of (2) amount; postjudgment award of interest

C merits; judgment from of the on the the date (3) (including LP & L Rule last contention is that award to of costs Comstock’s 26(b)(4)(C) costs, expenses, fees for when it refused to other and erred Further, attorneys). pursu and other we affirm award costs fees to Comstock Rule application. may A district court district court’s denial of 68 costs its cost Comstock, quantum we spent litigating award costs and for time and affirm Comstock; request. cost v. taxation to or fee See Alberti Kleven court’s costs (af (5th Cir.) hagen, but we reverse district court’s denial 26(b)(4)(C) solely Rule and to firming expenses taxation of costs costs Fischbach E.D.La., (Fischbach Rules, supra Appeal), Part D. Fed. Local Ct. Rule 5.04E. II that, imply all 37.We do not mean to under provides: 36. Local Rule 5.04E circumstances, party may request file a 26(b)(4)(C) thirty judg- days receiving after Within after notice of Rule costs nine months multiple entry judgment, unless ordered ment on the merits. The record reflects otherwise court, changes disputes extending party judgment whose favor and about the fees in is costs, Accordingly, period many we and and allowed over a months. rendered who claims case, applica- merely specific file Clerk a that on the facts of this shall ... with the notice of hold 26(b)(4)(C) may costs. to have the costs taxed .... Comstock recover its Rule tion Comstock, judgment and render modified, therefor As to LP against & L against LP L& and in favor in Comstock is as Fischbach follows: $7,254.98, the amount of and in favor of $10,994.21. Fischbach in the amount of Original request: $4,327,276.30 inadequate 10% documentation: (35,206.50) reduction — Attorney

Fees Madigan disallowed for (6,465.00) Lodestar $4,285,604.80 overstaffing:39 15% (642,840.72) reduction — Attorneys Reasonable Fees: $3,642,764.08 Costs 172,246.61 $ expenses Other 322,876.90 attorneys Fees for other 9,585.36 GROSS AWARD: $4,147,472.95 LESS: Rule 26 costs from LP & L to Fischbach (10,994.21) Net Award: LP L against $4,136,478.74 hereby judgment conclusion enter in success. The district court stated that “re $4,136,478.74, the net sum of plus post- covery the[] reasonable attorney’s fees judgment interest, against Fischbach in must be regardless sustained of the amount L; favor of LP & and we increase the dis- of damages awarded,” explained trict court’s LP L& in — cases as Hobby, such Farrar $7,254.98 favor of Comstock for its Rule —, —, 566, 574, 113 S.Ct. 121 L.Ed.2d 26 costs. (calling degree of success the most crucial in element determining the part; and, AFFIRMED in MODIFIED fee), amount aof Hensley modified, AFFIRMED in part; and RE- Eckerhart, 424, 440, VERSED part. RENDERED (1983) (“A 76 L.Ed.2d 40 reduced fee GARZA, EMILIO Judge, M. Circuit appropriate relief, award is if the however concurring part, and dissenting part: significant, is limited comparison to the I scope litigation concur opinion whole.”), in the above as a did not exception of view, apply Part II.B. my mandatory In fee statutes.1 Accord district applied court wrong ingly, legal stan- did not court even consider dard and abused discretion refusing magnitude of LP & L’s success.2 The adjust the lodestar for LP & L’s Supreme limited explicitly Court has other- dictated Percentage (1) $115,- 38. applicable reduction majority 2. The finds "puzzling” this statement quarterly 070 reflected in period summaries for suggests and that the district court did consider 1987; (2) February $154,080 from July 1986 to magnitude of LP & success. L’s The district reflected in month-end summaries two attor- court, however, only "considered” LP L's lim- neys 1988; (3) $82,915 during 1987 and is, ited question, success as a threshold charges in November and December mandatory permits any whether fee statute submitted, which no totaling time records were consideration limited success. Because the $352,065.00. aggregate in the “no,” question district court answered this it question never 39. reached the imposed by This of whether “act reduction was the district court. [the limited It success].” is the failure to reach secondary question this challenge which I and to supra, 1. per opinion, curiam accompany- text which I refer here. ing note 21. all cases.3 Hensley apply Farrar

wise: apply the failed to

Because standard, I reverse. would legal

correct view, recovery less than

Moreover, my damages requested percent of

five twelve defendants.war- only five of For these of fees. reduction some

rants the district

reasons, hold that I would refusing to reduce its discretion

abused lodestar, dis- either remand proper standard apply the court to

trict reduction, if percentage what to determine demonstra- by the record’s

any, is warranted or, success, alterna- L’s limited

tion of by an additional the lodestar

tively, reduce per curiam Because the

twenty percent. ruling on court’s affirms

opinion respectfully I dissent. point, America, STATES

UNITED

Plaintiff-Appellee, CHERRY, Leon

Renard a/k/a Custody, Dean,

Jimmy

Defendant-Appellant.

No. 94-20456. Appeals, Court of States

United

Fifth Circuit.

April Hensley, the magnitude result. As accompa- of that opinion, text supra, per curiam 3. See 22-23, finding & L’s success explaining that LP that the district nying district court's L. notes submitted Fischbach first district court must determine whether “reasonably expended provide contemporane- that LP & L to hours claimed were on failed litigation.” Klevenhagen, billing periods. Alberti v. 896 ous for certain time records Cir.), Specifically, points other vacated on out that (5th Cir.1990); (1) grounds, only quarterly see L for 903 F.2d submitted summaries Hensley, February period July at at from 1986 to (“The (2) $115,070 fees; totalling requested only district court also exclude should attorneys this that dur- from initial fee calculation hours month-end summaries two $154,080 ‘reasonably expended.’”). 1988, totalling More- were not 1987 and re- (3) over, fees; daily applicant quested “the burden of no bears the time records establishing 1988, totalling entitlement to an award and doc- November December and $82,915 fees; umenting appropriate expended requested sup- no hours $6,465 porting at all for the court did not abide this It documentation standard. is Madigan. attorney, fees of one J.P. not the that all case claimed time is a reasonably expended fortiori if the total contemporaneous Failing provide appear hours claimed counsel to reflect preclude not an billing does statements legal judgment sound and resulted in satis- se, per long as the evidence award of factory results. produced adequate is to determine reason Alberti, at Similarly, 932. we find Commissioner, Heasley v. able hours. troubling somewhat (5th Cir.1992). district court’s deci- painstak After sion full analysis to decline a on items record, ingly reviewing instant we con of; therefore, hours, complained as to those clude the district court failed to deter that appear “[i]t does not from this that record properly mine whether some the hours the district court determined if reasonably expended particular were submitted reasonably expended hours claimed were on satisfy that LP L & failed burden litigation.” Id. at proving compensation its entitlement to some of the hours submitted. Further, LP & L’s challenged rec court stated it not The district had provide not ords do this sufficient dollar-by-dollar or an “undertake[n] hour- information to determine whether all records, by-hour analysis” LPof & L’s but requested reasonably expend amounts were just equitable result “[a] can be I, litigation.9 Leroy ed on this by following existing obtained case law (reversing acceptance district court’s attorney’s what a ‘reasonable’ constitutes of total billing hours where records reflected specific fee.” As to the items of which Fisch reconstructed, that “some were after-the-fact appears complains, summaries”). bach to fall short Despite urging Fischbach’s us required the standard of district courts. entirely to eliminate the hours covered is only required quarterly monthly The district court summaries period December, the total hours claimed determine whether of November to reasonable, particular but also find that supports whether the documentation reasonably expended. Normally, hours claimed were some amount of hours. deeming court’s reference hours we would remand the district court for it reasonably troubling appropriate expended be be- to determine an reduction. Be

Notes

notes right question to recover fees ruling confuses the of what significant court's "does not answer fee, of that of the amount with the determination light level of success.” of that is 'reasonable' finding significant result alone does that a and not at 1942. U.S. at duty evaluate satisfy court's

Case Details

Case Name: Louisiana Power & Light Co. v. Kellstrom

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 10, 1995

Citation: 50 F.3d 319

Docket Number: 93-03756

Court Abbreviation: 5th Cir.