United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. MILLER UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff Fantastic Sams Franchise
Corporation's (“Fantastic Sams”) motion for
attorneys' fees, litigation expenses, and court costs.
Dkt. 31. Having considered the motion, evidentiary record,
and applicable law, the court is of the opinion that the
motion (Dkt. 31) should be GRANTED IN PART AND DENIED IN
August 3, 2016, Fantastic Sams filed a complaint against
defendant Gerald Mosley for preliminary injunctive relief,
alleging breach of contract, unfair competition, and
trademark and trade dress infringement and dilution under the
Lanham Act and Texas common law. Dkt. 1. Mosley is a former
franchisee of Fantastic Sams. Id. On April 18, 2005,
Mosley entered into a ten-year franchise agreement with
Fantastic Sams by contracting with Salons Corp. (the parent
company to Fantastic Sams). Dkt. 2, Ex. A at 12
(“Franchise Agreement”). Mosley did not exercise
his opportunity to renew the franchise, and the Agreement
expired on April 17, 2016. Dkt. 1 at 7; Dkt. 16 at 7. The
Franchise Agreement contains a Mediation and Arbitration
provision for dispute resolution. Dkt. 2, Ex. A. at 31.
However, Fantastic Sams reserved the right to seek temporary
injunctive relief from a court of competent jurisdiction.
Sams's sought an injunction against Mosley because he was
operating a competing hair salon, Shear Perfection of
Cypress, in violation his contractual obligations under the
Franchise Agreement. Dkt. 11. Mosley filed a motion to
dismiss Fantastic Sams's claim. Dkt. 16. On November 29,
2016, the court held a hearing on the motion for a
preliminary injunction. Dkts. 18. On December 23, 2016, the
court granted in part Fantastic Sams's motion for
preliminary injunction solely on the breach of contract cause
of action. Dkt. 20. The court also denied Mosley's motion
to dismiss. Dkt. 20.
January 9, 2017, Fantastic Sams filed a motion to enforce the
preliminary injunction. Dkt. 21. On January 13, 2017,
Fantastic Sams filed a motion for summary judgment. Dkt. 22.
The court denied the motion to enforce and granted in part
Fantastic Sam's motion for summary judgment and issued a
permanent injunction on the breach of contract cause of
action. Dkt. 29. The court order enjoined Mosley, for a
period of two years, from operating a competing hair salon
within a five mile radius of his former Fantastic Sams
franchise location, as required by his franchise agreement.
Dkts. 20, 29.
February 21, 2017, Fantastic Sams filed a motion for
attorneys' fees, litigation expenses, and court costs.
Dkt. 31. Mosley did not respond. The Franchise Agreement
includes a clause that states:
In the event it becomes necessary for either party to
institute any action or proceeding to secure or protect such
party's rights under this Agreement, the successful party
shall be entlted to recover in any judgment its
attorneys' fees, together with court costs, and any and
all filing fees and litigation expenses.
Dkt. 2, Ex. A at 34.
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 ...