United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge
before the court is plaintiff Kiewit Offshore Services,
Ltd.'s (“Kiewit”) motion for attorneys'
fees and costs. Dkt. 77. Having considered the motion,
response, and applicable law, the court is of the opinion
that Kiewit's motion for attorneys' fees and costs
should be GRANTED IN PART and DENIED IN PART.
motion for attorneys' fees stems from a business dispute
between Kiewit and defendant Dresser-Rand Global Services,
Inc. (“Dresser-Rand”) for services that Kiewit
rendered in engineering, designing, and fabricating two 1220
ton litoral compression modules for Dresser-Rand. Dkts. 1,
62. The contract between the two parties included an
estimated “contract price before Change Orders”
of approximately $27 million. Dkt. 62; Dkt. 77-1, Ex. A
(“Contract”). While working on the project,
Kiewit submitted eight invoices to Dresser-Rand. Id.
Dresser-Rand paid the first four invoices, totaling
approximately $33 million. Id. However, Dresser-Rand
refused to pay the remaining four invoices, totaling
approximately $9.5 million. Id. Dresser-Rand alleged
that Kiewit invoiced Dresser-Rand without submitting a Change
Order for “Changes in the Scope of Work” as
required under their contract. Id.
14, 2015, Kiewit filed this lawsuit against Dresser-Rand,
raising claims for breach of contract, promissory estoppel,
and unjust enrichment. Dkt. 1. On June 12, 2015, Dresser-Rand
filed an answer and a counterclaim for breach of contract.
Dkt. 3. The parties filed a series of motions for summary
judgment. See Dkts. 15-23, 46-47. On September 1,
2016, the court issued its memorandum opinion and order
granting Kiewit's five motions for partial summary
judgment on Dresser-Rand's counterclaims and Kiewit's
claims for payment of invoices. Dkt. 62. The court held that
Dresser-Rand was liable for breach of contract for its
failure to pay Kiewit $9, 572, 271.90. Id. The court
also granted Dresser-Rand's motion for summary judgment
in part on Kiewit's claims for Project Impact Damages,
promissory estoppel, and unjust enrichment. Id. The
Project Impact Damages claim is based on allegations that
Dresser-Rand failed to timely provide information that Kiewit
and its subcontractor needed to design the modules.
Id. The court held that Kiewit could not recover for
these costs, because Kiewit did not follow the procedures
outlined in the Contract. Id.
September 21, 2016, Kiewit filed a proposed final judgment
seeking $9, 527, 271.90 for outstanding invoices, interest on
the payments, and reasonable attorneys' fees and costs.
Dkt. 64. Dresser-Rand objected and sought to delay final
judgment until after the court has ruled on its motion for
reconsideration (Dkt. 63) and has assessed an award of
attorneys' fees. Dkt. 65.
September 20, 2016, Dresser-Rand filed a motion for
reconsideration of the court's summary judgment order.
Dkt. 63. In October 2016, the parties filed their respective
response and reply, and the court held a hearing on the
matter. Dkts. 67, 68, 70. On November 29, 2016, the court
issued an order denying Dresser-Rand's motion for
reconsideration (Dkt. 63). Dkt. 71. The court also issued an
order outlining the briefing schedule for Kiewit's motion
on attorneys' fees. Dkt. 72.
December 12, 2017, Dresser-Rand filed a motion to modify the
briefing schedule for attorneys' fees and sought
post-judgment discovery. Dkt. 73. On January 3, 2017, Kiewit
filed its response (Dkt. 74), and the next day the court
issued its order denying Dresser-Rand's motion to modify
the briefing schedule for attorneys' fees and
post-judgment discovery. Dkt. 75.
January 5, 2017, Kiewit filed a motion for attorneys'
fees and costs seeking $2, 272, 399.62. Dkt. 77. On January
26, 2017, Dresser-Rand responded. Dkts. 79, 80. The motion
has been fully briefed and is ripe for disposition.
court has determined that a plaintiff is entitled to
attorneys' fees, then it must determine the amount.
Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000).
The district court has “broad discretion in determining
the amount of a fee award.” Associated Builders
& Contractors of La., Inc. v. Orleans Par. Sch. Bd.,
919 F.2d 374, 379 (5th Cir. 1990). Courts use a two-step
process to calculate reasonable attorneys' fees.
Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047
(5th Cir. 1998).
the court calculates a “lodestar” fee by
multiplying the reasonable number of hours spent on the case
by the reasonable hourly rates for the participating lawyers.
Id. Where “a plaintiff has achieved only
partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount. This will be true
even where the plaintiff's claims were interrelated,
nonfrivolous, and raised in good faith.” Saizan v.
Delta Concrete Prods. Co., Inc., 448 F.3d 795, 801 (5th
Cir. 2006) (citing Hensley v. Eckerhart, 461 U.S.
424, 436, 103 S.Ct. 1933 (1983)).
the court considers whether the lodestar should be adjusted
upward or downward depending on the circumstances of the
case, under the twelve Johnson factors.
Migis, 135 F.3d at 1047 (citing Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)). The factors are: (1) the time and labor required for
the litigation; (2) the novelty and difficulty of the
questions presented; (3) the skill required 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; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the result
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 Id
. Texas courts weigh similar factors under Rule 1.04 of
the Texas Disciplinary Rules of Professional Conduct to
determine reasonable fees. See Arthur Andersen & Co.
v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
movant seeking attorneys' fees bears the initial burden
of submitting adequate documentation of the hours expended
and hourly rates. Hensley v. Eckerhart, 461 U.S.
424, 437, 103 S.Ct. 1933 (1983) (“The applicant should
exercise ‘billing judgment' with respect to hours
worked . . . and should maintain billing time records in a
manner that will enable a reviewing court to identify
contends that because it is the prevailing party in this
case, it is entitled to attorneys' fees. Dkt. 77 (citing
Dkt. 71). Although Kiewit did not prevail on its Project
Impact Claim seeking approximately $7 million in damages, the
court granted summary judgment in favor of Kiewit on its
breach of contract claims for approximately $9.5 million in
unpaid invoices and dismissed all of Dresser-Rand's
counterclaims. Dkt. 62.
law controls both the award of and the reasonableness of
attorneys' fees awarded where state law supplies rule of
decision.” Mathis v. Exxon Corp., 302 F.3d
448, 461 (5th Cir. 2002). The court finds that an award of
attorneys' fees is warranted based on the Contract
between the parties. See Dkt. 77, Ex. A (Contract,
Art. 913) (“[I]f suit is brought . . . then the
prevailing Party shall be entitled to recover reasonable
attorneys' fees and costs from the other Party.”).
Here, Kiewit's breach of contract claim was governed by
Texas law, and Kiewit is entitled to fees incurred in
successfully litigating its breach of contract claim.
See Tex. R. Civ. Pro. § 38.001.
first step in determining an award of attorneys' fees is
to calculate the lodestar by multiplying the reasonable
number of hours spent on the case by the reasonable hourly
rates for the participating lawyers. Migis, 135 F.3d
at 1047. Kiewit incurred $2, 239, 321.75 in attorneys'
fees and $216, 442.20 in costs. Dkt. 77 at 22; Dkt. 77-4, Ex.
B-2. After voluntarily reducing its fees and costs by 15% to
account for the segregation of fees and a billing judgment
deduction in costs, Kiewit seeks $1, 903, 423.75 in
attorneys' fees; $183, 975.90 in costs; $35, 000 in
post-judgment fees for the additional time incurred
responding to Dresser-Rand's motion to modify the
court's attorneys' fees briefing schedule; and $150,
000 in conditional appellate fees. Dkt. 77 at 22. In total,
Kiewit seeks $2, 272, 399.62 in attorneys' fees and
does not dispute the rates charged by Kiewit's counsel,
but objects to the excessive amount of time Kiewit's
counsel spent on each task. Dkt. 79. Specifically,
Dresser-Rand asserts that the fees should be reduced because
Kiewit's attorneys: (1) failed to exercise good billing
judgment, (2) billed for paralegal clerical work which is not
recoverable, (3) reduced the total fee for hours worked on
its unsuccessful claims by 15% instead of by 30%, (4) did not
substantiate the $35, 000 requested in post-judgment fees,
and (5) did not substantiate the $150, 000 requested in
conditional appellate fees. Dkt. 79.
Reasonable Hourly Rate
reasonable rate for an award of attorneys' fees is the
“prevailing market rates in relevant community”
for attorneys of comparable experience employed in cases of
similar complexity. Blum v. Stenson, 465 U.S. 886,
895-96 n.11 (1984). Kiewit's fees are based on average
hourly rates for partners ($353-$402 per hour), associates
($241-$242 per hour), and paralegals ($150-$160). Dkt. 77-2
(Fogler expert report); Dkt. 77-4, Ex. B-2 (fee summary
chart). Kiewit's expert witness on attorneys' fees,
Murray Fogler, attests that these hourly rates are
customarily charged in Houston for similar legal services and
are on the “low side.” Dkt. 77-2 at 8.
Dresser-Rand does not dispute the rates. The court finds the
rates charged are reasonable given the level of complexity of