1 The defendants were Fischbach & Moore, Inc., Fischbach Corp., Francis

S. Kellstrom, Commonwealth Electric Co., Howard P. Foley Co., L.K. Comstock &

Co., Inc., LKC, Inc., Commonwealth Cos., John D. Keys, Lewis E. Eastman, J.R.

Sturgill, Jr., and Paul M. Murphy.

 

2 Fischbach & Moore, Inc., Fischbach Corp., Francis S. Kellstrom,

Commonwealth Electric Co., and Howard P. Foley Co.

 

3 This section provides:

[A]ny person who shall be injured in his business or property by

reason of anything forbidden in the antitrust laws . . . shall

recover threefold the damages by him sustained, and the cost of

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_____________

No. 93-3756

_____________

LOUISIANA POWER & LIGHT COMPANY,

Plaintiff-Appellee,

versus

FRANCIS S. KELLSTROM, ET AL.,

Defendants,

FRANCIS S. KELLSTROM, ET AL.,

Defendants-Appellants.

________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

________________________________________________

(April 10, 1995)

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:

Louisiana Power & Light Co. ("LP&L") sued multiple defendants1

for antitrust and RICO violations, and the jury rendered a verdict

in LP&L's favor against five defendants2 and against LP&L on the

remainder of its claims. Pursuant to 15 U.S.C. § 153 and Fed. R.
suit, including a reasonable attorney's fee.

15 U.S.C. § 15 (1988).

 

4 Rule 54(d) provides:

Except when express provision therefor is made either in a statute

of the United States or in these rules, costs other than attorneys'

fees shall be allowed as of course to the prevailing party unless

the court otherwise directs . . . .

Fed. R. Civ. P. 54(d).

 

5 L.K. Comstock & Co. and LKC, Inc. are the only prevailing defendants

involved in this appeal.

 

6 See infra Part II (Comstock Appeal), A.

-2-

Civ. P. 54(d),4 the district court awarded attorneys' fees to LP&L

on its successful claims and to the prevailing defendants on

theirs.5 Defendants Fischbach & Moore, Inc., Fischbach Corp., and

Francis S. Kellstrom (collectively "Fischbach") appeal the award of

attorneys' fees to LP&L. Defendants L.K. Comstock & Co., Inc. and

LKC, Inc. (collectively "Comstock") appeal the amount of the

district court's taxation of costs against LP&L. We affirm in

part, modify and affirm in part, and reverse and render in part.

I

In its antitrust and RICO suit, LP&L alleged that the

defendants had conspired to rig the electrical bids for the

Waterford 3 nuclear power plant project. Shortly before trial,

Comstock made an offer of judgment to LP&L under Rule 68 of the

Federal Rules of Civil Procedure,6 which offer LP&L refused.

Following approximately six years of pretrial preparation and

eight-weeks of trial, the jury found for LP&L on its bid rigging

claims against Fischbach, Commonwealth Electric Co., and the Howard
 

7 Commonwealth Electric Co. and the Howard P. Foley Co. are not parties

to this appeal.

 

8 Under 15 U.S.C. § 15 (1988), this amount was trebled for a total

recovery of $1.5 million.

-3-

P. Foley Co.7 but found against LP&L on its claims against

Comstock. Although LP&L had requested $15-17 million in damages,

the jury awarded it only $500,000.8

After trial, LP&L filed an application for an award of

$281,668.66 in costs and $5,205,296.96 in fees. Comstock filed an

application for costs that eventually totalled $71,264.07.

Comstock also moved to amend the judgment to include its attorneys'

fees based on its Rule 68 offer of judgment.

After receiving multiple motions to review elements of the

various cost and fee applications, the district court held a

hearing on all such applications. Fischbach challenged portions of

LP&L's fee request, and LP&L challenged Comstock's cost request.

The district court took the matter under submission and eventually

entered its findings and conclusions, awarding $4,182,893.73 in

fees and costs to LP&L and $33,743.47 in costs to Comstock but

denying Comstock's Rule 68 and Rule 26 requests and Fischbach's

Rule 26 request.

Fischbach appeals the award of fees and costs to LP&L,

contending that the district court erred by 1) failing to reduce

the number of hours awarded; 2) failing to reduce the hourly rates

awarded; 3) failing to reduce the lodestar more than it actually

did; 4) awarding postjudgment interest from the date of judgment on

the merits, rather than from the date of the final fee award; and
-4-

5) awarding fees for LP&L's experts' response to discovery while

denying the same to Fischbach. Comstock appeals its award of

costs, arguing that the district court erred by 1) refusing to

award fees under its Rule 68 offer of judgment; 2) awarding fees

for LP&L's experts' response to discovery while denying the same to

Comstock; and 3) refusing to award fees and costs for pursuing its

cost recovery.

II

The Fischbach Appeal:

Fischbach challenges several elements of the award of

attorneys' fees and costs to LP&L. First, Fischbach asserts that

the district court erred in determining the "lodestar" amount by

accepting both the total hours and the hourly rates submitted by

LP&L. Second, it disputes as inadequate the district court's

downward adjustment of the lodestar. Third, Fischbach disagrees

with the date chosen by the district court for the start of

postjudgment interest. Last, it asserts that the district court

should either deny LP&L's costs for experts' response to discovery

or grant these costs to both parties.

A

In addressing Fischbach's assertion that the district court

erred in its calculation of the base lodestar, we note that

determination of reasonable attorneys' fees involves a two-step

procedure. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct.

1933, 1939, 76 L. Ed. 2d 40 (1983) Initially, the district court

must determine the reasonable number of hours expended on the
-5-

litigation and the reasonable hourly rates for the participating

lawyers. Id. Then, the district court must multiply the

reasonable hours by the reasonable hourly rates. Blum v. Stenson,

465 U.S. 886, 888, 104 S. Ct. 1541, 1544, 79 L. Ed. 2d 891 (1984)

(defining base fee to be product of reasonable hours and reasonable

rate); Hensley, 461 U.S. at 433, 103 S. Ct. at 1939 (defining

product of hours reasonably expended and reasonable hourly rates as

"[t]he most useful starting point"); Brantley v. Surles, 804 F.2d

321, 325 (5th Cir. 1986) (stating hours multiplied by rate to be

normal basis for fee). The product of this multiplication is the

lodestar, which the district court then either accepts or adjusts

upward or downward, depending on the circumstances of the case.

Brantley, 804 F.2d at 325. Determinations of hours and rates are

questions of fact. See Bode v. United States, 919 F.2d 1044, 1047

(5th Cir. 1990) (reviewing hours for clear error). Accordingly, we

review the district court's determination of reasonable hours and

reasonable rates for clear error. See Blanchard v. Bergeron, 893

F.2d 87, 89 (5th Cir. 1990) (reviewing underlying factual

determinations for clear error). 

1

Fischbach challenges the district court's allowance of certain

hours claimed by LP&L. As noted, the first step in determining

reasonable attorneys" fees is an evaluation of the number of hours

reasonably expended. Baughman v. Wilson Freight Forwarding Co.,

583 F.2d 1208, 1214 (3d Cir. 1978). The district court must

determine whether the hours claimed were "reasonably expended on
-6-

the litigation." Alberti v. Klevenhagen, 896 F.2d 927, 933-34 (5th

Cir.), vacated on other grounds, 903 F.2d 352 (5th Cir. 1990); see

also Hensley, 461 U.S. at 434, 103 S. Ct. at 1939 ("The district

court also should exclude from this initial fee calculation hours

that were not `reasonably expended.'"). Moreover, "the fee

applicant bears the burden of establishing entitlement to an award

and documenting the appropriate hours expended and hourly rates.

The applicant . . . should maintain billing time records in a

manner that will enable a reviewing court to identify distinct

claims." Hensley, 461 U.S. at 437, 103 S. Ct. at 1941; see also

Bode, 919 F.2d at 1047 ("[T]he party seeking reimbursement of

attorneys' fees . . . has the burden of establishing the number of

attorney hours expended, and can meet that burden only by

presenting evidence that is adequate for the court to determine

what hours should be included in the reimbursement."). 

Accordingly, the documentation must be sufficient for the

court to verify that the applicant has met its burden. Id. "In

determining the amount of an attorney fee award, courts customarily

require the applicant to produce contemporaneous billing records or

other sufficient documentation so that the district court can

fulfill its duty to examine the application for noncompensable

hours." Id.; see also Hensley, 461 U.S. at 433, 103 S. Ct. at

1939 ("The party seeking an award of fees should submit evidence

supporting the hours worked and rates claimed."). Thus a district

court may reduce the number of hours awarded if the documentation

is vague or incomplete. See Alberti, 896 F.2d at 931 (refusing to
-7-

accept incomplete documentation "at face value"); Leroy v. City of

Houston (Leroy I), 831 F.2d 576, 585-86 (5th Cir. 1987) (finding

clear error and abuse of discretion when district court accepted

"faulty records" without making reduction); cf. Hensley, 461 U.S.

at 433, 103 S. Ct. at 1939 (counseling that "[w]here the

documentation of hours is inadequate, the district court may reduce

the award accordingly").

Fischbach contends that the district court clearly erred in

accepting all of the hours submitted by LP&L. Fischbach first

notes that LP&L failed to provide contemporaneous billing records

for certain time periods. Specifically, Fischbach points out that

LP&L submitted (1) only quarterly summaries for the period from

February 1986 to July 1987, totalling $115,070 in requested fees;

(2) only month-end summaries for two attorneys during 1987 and

1988, totalling $154,080 in requested fees; (3) no daily time

records for November and December 1988, totalling $82,915 in

requested fees; and (4) no supporting documentation at all for the

$6,465 in fees of one attorney, J.P. Madigan. 

Failing to provide contemporaneous billing statements does not

preclude an award of fees per se, as long as the evidence produced

is adequate to determine reasonable hours. Heasley v.

Commissioner, 967 F.2d 116, 123 (5th Cir. 1992). After

painstakingly reviewing the instant record, we conclude that the

district court failed to determine properly whether some of the

hours submitted were reasonably expended and that LP&L failed to

satisfy its burden of proving its entitlement to compensation for
 

9 For example, the documentation for the fourth quarter of 1986

consisted of the following summary:

We traveled to New York and deposed defendants Comstock and

LKC,Inc. We reviewed extensive documentation concerning Fischbach

& Moore's bids to LP&L, and we deposed Fischbach & Moore in Kenner,

Louisiana. We deposed Lord Electric Company in New York City; we

-8-

some of the hours submitted.

The district court stated that it had not "undertake[n] a

dollar-by-dollar or an hour-by-hour analysis" of LP&L's records,

but that "[a] just and equitable result can be obtained by

following existing case law on what constitutes a `reasonable'

attorney's fee." As to the specific items of which Fischbach

complains, this appears to fall short of the standard required of

district courts. 

The district court is not only required to determine

whether the total hours claimed are reasonable, but also

whether particular hours claimed were reasonably

expended. The court's reference to deeming hours to be

reasonably expended is troubling because it strongly

suggests that the district court did not abide by this

standard. It is not the case that all claimed time is a

fortiori reasonably expended if the total hours claimed

by counsel appear to reflect sound legal judgment and

resulted in satisfactory results.

Alberti, 896 F.2d at 932. Similarly, we find somewhat troubling

the district court's decision to decline a full analysis on the

items complained of; therefore, as to those hours, "[i]t does not

appear from this record that the district court determined if

particular hours claimed were reasonably expended on the

litigation." Id. at 933.

Further, LP&L's challenged records do not provide this court

with sufficient information to determine whether all of the amounts

requested were reasonably expended on this litigation.9 See
traveled to Lincoln, Nebraska and deposed Commonwealth Electric

Company. We reviewed transcripts of all these depositions when

produced.

We brought formal discovery complaints to the Court and argued

them to the Magistrate, who ordered each of the defendants to

provide supplemental discovery, which we reviewed. The Magistrate

also ordered legal memoranda on the discovery of grand jury

materials, which we prepared after research. We reviewed the

memoranda filed by others.

We conferred with Company personnel and employees and

attorneys for Ebasco Services, Inc. concerning interrogatories and

requests for documents submitted to LP&L by defendants Fischbach &

Moore and Comstock. We reviewed extensive documentation produced by

Ebasco and prepared answers and response to defendants' discovery

demands. We conferred with opposing counsel and the Magistrate

concerning LP&L's production of documents.

We extensively conferred with LP&L's investigator and reviewed

reports concerning other price-fixing litigation involving

defendants, and we conferred with other attorneys of other injured

parties. We prepared bankruptcy pleadings to obtain discovery from

E.C. Ernst Company.

A fee total of $23,900 was submitted for this work. Unfortunately, this

documentation provides no basis upon which we could determine if $23,900 or

$123,900 or $2,390 was reasonably expended for these services. There is no

indication of the number of hours expended per task, by whom, for what, and at

what rate. Without such basic information, no Hensley determinations regarding

"the reasonable number of hours spent on the litigation and a reasonable hourly

rate" can be made. See Hensley, 461 U.S. at 433, 103 S. Ct. at 1939.

 

10 See Leroy I, 831 F.2d at 585-86 (vacating district court judgment and

remanding for entry of amended award); Cobb v. Miller, 818 F.2d 1227, 1235 (5th

Cir. 1987) (reversing district court and rendering judgment on fee award); see

also Home Placement Serv. v. Providence Journal Co., 819 F.2d 1199, 1211 (1st

Cir. 1987) (opting to modify fee award rather than remand).

-9-

Leroy I, 831 F.2d at 585 (reversing district court's acceptance of

total hours where billing records reflected that "some were

reconstructed, after-the-fact summaries"). Despite Fischbach's

urging us to eliminate entirely the hours covered by the quarterly

and monthly summaries and the period of November to December, 1988,

we find that the documentation supports an award of some amount of

hours. Normally, we would remand to the district court for it to

determine an appropriate reduction. Because the record contains

sufficient information to allow a fair determination of a

reasonable fee, however, we choose to exercise our option to modify

the fee award on our own.10 Therefore, in the exercise of our
-10-

discretion and after a careful analysis of the record and the

determinations of the district court, we deem appropriate a ten

percent reduction for inadequate documentation of the hours and

fees requested for 1) February 1986 to July 1987, 2) month-end

summary entries by Attorneys Slater and Stevenson during 1987 and

1988, and 3) November and December 1988. As for the request for

hours for Attorney Madigan, however, the record is virtually devoid

of any information helpful to a determination of whether or how his

hours were spent beneficially on this litigation. We accordingly

deny any award of attorneys' fees based on the hours submitted for

Attorney Madigan.

Fischbach also challenges several entries as too vague to

support a determination whether or how they were spent on this

litigation. The district court may properly reduce or eliminate

hours when the supporting documentation is too vague to permit

meaningful review. See Leroy v. City of Houston (Leroy II), 906

F.2d 1068, 1080 (5th Cir. 1990) (striking hours as "not

illuminating as to the subject matter" or "vague as to precisely

what was done"); Leroy I, 831 F.2d at 585-86 (reversing when

district court accepted all hours from records that were "scanty,"

completely missing, or lacking in explanatory detail); see also HJ,

Inc., 925 F.2d at 260 (reducing hours for vague entries such as

"legal research," "trial preparation," and "met with client"). 

After reviewing the instant record, we agree that many entries
 

11 LP&L's records contain vague entries such as "revise memorandum,"

"review pleadings," "review documents," and "correspondence." Specifically, we

find the following hours lack the required specificity to support completely the

fees requested:

Slater: 290.75 hours, totalling $66,348.75 in fees

Stevenson: 229.25 hours, totalling $47,442.50

O'Keefe: 19.7 hours, totalling $3622.50

Lewis: 0.3 hours, totalling $67.50

O'Brien: 2.8 hours, totalling $490.00

Staub: 96.0 hours, totalling $16,140.00

Burns: 6.0 hours, totalling $960.00

Thomas: 7.0 hours, totalling $980.00

Rodriguez: 36.0 hours, totalling $5040.00

McGrew: 1.3 hours, totalling $182.00

Van Horn: 0.5 hours, totalling $60.00

Chalker: 32.0 hours, totalling $3840.00

McAlister: 1.0 hours, totalling $120.00

Schooley: 52.0 hours, totalling $5200.00

Brown: 1.75 hours, totalling $175.00

Friend: 124.04 hours, totalling $12,404.00

Readinger: 236.25 hours, totalling $11,812.50

Walker: 42.15 hours, totalling $2107.50

Pate: 32.25 hours, totalling $1612.50

Hughs: 61.75 hours, totalling $2778.75

Carrigan: 5.0 hours, totalling $225.00

Goodwin: 33.8 hours, totalling $1521.00

Evans: 9.05 hours, totalling $407.25

Helwig: 30.75 hours, totalling $1383.75

Gullo: 0.35 hours, totalling $15.75

Whittington: 0.5 hours, totalling $22.50

Fleming: 4.25 hours, totalling $191.25

-11-

in LP&L's time records are indeed scanty as to subject matter.11

Nonetheless, our case law has not precisely defined the appropriate

standard, if in fact it is susceptible of being thus defined.

Accordingly, "not illuminating as to the subject matter" or "vague

as to precisely what was done" gives the district court sufficient

leeway within which to accept or reject fee applications similar to

that submitted by LP&L. Litigants take their chances when

submitting such fee applications, as they provide little

information from which to determine the "reasonableness" of the

hours expended on tasks vaguely referred to as "pleadings,"

"documents," or "correspondence" without stating what was done with

greater precision. See Hensley, 461 U.S. at 434, 103 S. Ct. at
-12-

1939 (instructing district court to exclude hours not "reasonably

expended"). 

Viewing the time records as a whole, however, and given the

district court's familiarity with this case, including the quality

of the attorneys' work over a period of several years, we cannot

say that the district court clearly erred in refusing to reduce the

hours in question for vagueness. These entries may border on

inadequacy as a matter of law, but we are mindful that practical

considerations of the daily practice of law in this day and age

preclude "writing a book" to describe in excruciating detail the

professional services rendered for each hour or fraction of an

hour. We also recognize that, in this era of computerized time

keeping, many data processing programs limit the amount of input

for any given hourly or daily entry. Nevertheless, attorneys who

anticipate applying for reimbursement of fees should endeavor to be

less terse.

In addition to criticizing LP&L's records as inadequate and

vague, Fischbach also complains that the district court failed to

exclude hours that LP&L expended litigating against the other

defendants. A prevailing litigant may not recover for hours

devoted solely to claims against other parties. See Hensley, 461

U.S. at 434-35, 103 S. Ct. at 1940 (work on unsuccessful claim not

compensable); Baughman, 583 F.2d at 1214 (defendant relieved from

compensating plaintiff for hours expended litigating against other

defendants). But when claims against multiple parties share a

"common core of facts" or "related legal theories," a fee applicant
 

12 See also City of Riverside v. Rivera, 477 U.S. 561, 570, 106 S. Ct.

2686, 2692, 91 L. Ed. 2d. 466 (1986) (finding common core of facts); Abell v.

Potomac Ins. Co., 946 F.2d 1160, 1169 (5th Cir. 1991) ("[W]here time spent on

unsuccessful issues is difficult to segregate, no reduction of fees is

required."), cert. denied, ___ U.S. ___, 112 S. Ct. 1944, 118 L. Ed. 2d 549

(1992); Nash v. Chandler, 848 F.2d 567, 572 (5th Cir. 1988) (finding no clear

error where unsuccessful claims "highly relevant" to successful claim); Cobb v.

Miller, 818 F.2d 1227, 1233 (5th Cir. 1987) (holding claims against multiple

defendants compensable because interrelated).

 

13 When a plaintiff's claims cannot be disentangled, the district

court's focus should shift to the results obtained and adjust the lodestar

accordingly. Hensley, 461 U.S. at 436-37, 103 S. Ct. at 1941 ("The district

court may attempt to identify specific hours that should be eliminated, or it may

simply reduce the award to account for the limited success."); HJ, Inc., 925 F.2d

at 260 (permitting district court to either cut non-successful hours or reduce

lodestar to reflect success); United States Football League v. National Football

League, 887 F.2d 408, 414 (2d Cir. 1989) (holding that district court did not

abuse discretion in reducing lodestar rather than cutting nonsuccessful hours),

cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed. 2d 1022 (1990). We

address this issue infra in section B.

-13-

may claim all hours reasonably necessary to litigate those issues.

Hensley, 461 U.S. at 434-35, 103 S. Ct. at 1940.12 

Proving an antitrust case involves demonstrating collusion

among multiple defendants; this requires the plaintiff to prove the

same facts and issues against several parties to recover against

any one party. See 15 U.S.C. § 2 (1988) (defining violation for

persons who "combine or conspire"). We are here satisfied that

LP&L's claims against the other defendants involved a common core

of facts, and that LP&L was thus entitled to claim the hours it

spent litigating against the other defendants. Consequently, we

conclude that the district court did not err in refusing to sift

through LP&L's hours and eliminate those spent in litigation

against the other defendants.13

2

Next, Fischbach challenges the district court's determination

of the hourly rates awarded to LP&L. This too we review for clear
 

14 LP&L also submitted affidavits from other local attorneys supporting

its rate request.

-14-

error. Powell v. Commissioner, 891 F.2d 1167, 1173 (5th Cir. 1990)

(holding that determination of reasonable rates is question of

fact, subject to clear error standard); Islamic Ctr. v. City of

Starkville, 876 F.2d 465, 468 (5th Cir. 1989) (using clear error

standard to evaluate hourly rates awarded). To determine

reasonable rates, a court considers the attorneys' regular rates as

well as prevailing rates. HJ, Inc., 925 F.2d at 260 (considering

regular rates as well as prevailing rates); Laffey v. Northwest

Airlines, Inc., 746 F.2d 4, 23 (D.C. Cir. 1984) (calling for

"reference to the customary billing rate followed by comparison to

the prevailing community rate to ensure that the attorney's

customary rate is reasonable"), cert. denied, 472 U.S. 1021, 105 S.

Ct. 3488, 87 L. Ed. 2d 622 (1985). During the latter part of the

instant litigation, LP&L's attorneys reduced the hourly rates they

charged by 25% in exchange for a contingent share of any eventual

recovery. In its fee application, however, LP&L requested its

attorneys' usual rate.14 

When an attorney's customary billing rate is the rate at

which the attorney requests the lodestar be computed and

that rate is within the range of prevailing market rates,

the court should consider this rate when fixing the

hourly rate to be allowed. When that rate is not

contested, it is prima facie reasonable. When the

requested rate of compensation exceeds the attorney's

usual charge but remains within the customary range in

the community, the district court should consider whether

the requested rate is reasonable.

Islamic, 876 F.2d at 469; see also Powell, 891 F.2d at 1175

(holding customary billing rate to be prima facie reasonable).
 

15 Fischbach characterizes LP&L's requested rate as an improper

"multiplier" or "contingency enhancement." See Pennsylvania v. Delaware Valley

Citizens' Council, 483 U.S. 711, 731, 107 S. Ct. 3078, 3089, 97 L. Ed. 2d 585

(1987) (holding enhancements generally inappropriate). The enhancements in these

cases, however, refer to requests for multipliers in excess of a reasonable rate.

Therefore, Fischbach's argument is inapplicable to the facts of this case.

-15-

After due consideration, the district court found that LP&L's

requested rate was reasonable.

Fischbach argues that LP&L should not recover any amount in

excess of the fees actually paid.15 Otherwise, Fischbach contends,

LP&L will receive a windfall. Attorneys' fees awards should not

provide a windfall to plaintiffs. See Hensley, 461 U.S. at 430

n.4, 103 S. Ct. at 1938 n.4 (explaining statutory goal of avoiding

windfalls to attorneys); see also Riverside, 477 U.S. at 580, 106

S. Ct. at 2697 ("Congress intended that statutory fee awards be

`adequate to attract competent counsel, but . . . not produce

windfalls to attorneys.'" (quoting S. Rep. No. 1011, 94th Cong., 2d

Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 5913)). 

Nevertheless, the actual amount paid in fees is not dispositive on

the question of reasonable rates. See Blum v. Stenson, 465 U.S.

886, 895-96, 104 S. Ct. 1541, 1547, 79 L. Ed. 2d 891 (1984)

(determining that courts should use market rates, not cost-based

rates); Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 238 n.6

(5th Cir. 1990) (suggesting that "attorneys' fees awards are not

always purely compensatory in nature"); Brantley v. Surles, 804

F.2d 321, 327 (5th Cir. 1986) ("That the amount of the fee award

exceeds the amount billed by opposing counsel is also not
 

16 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989).

 

17 The district court reduced the lodestar 15% for overstaffing and made

no other adjustments.

-16-

determinative."). In Blanchard v. Bergeron,

16 the Supreme Court

refused to limit trial judges to the contract between the plaintiff

and his counsel. 489 U.S. at 96, 109 S. Ct. at 946. "Should a fee

agreement provide less than a reasonable fee . . . , the defendant

should nevertheless be required to pay the higher [market-based]

amount." Id. at 93, 109 S. Ct. at 944. 

The issue we review on appeal here is not how much the

attorneys charged but whether the fees awarded by the district

court are reasonable; if they are reasonable, then by definition

there will be no windfall. Id. at 96, 109 S. Ct. at 946. Moreover,

"[t]he established rates represent the opportunity cost of what the

firm turned away in order to take the litigation." Laffey, 746

F.2d at 24. Our review of the record reveals that both the rates

charged and the rates requested were well within the range of

prevailing rates in the community. The district court approved the

requested rates, and we find no clear error in this choice.

B

Fischbach also challenges the district court's adjustment of

the lodestar.17 We review lodestar adjustments for abuse of

discretion. Palmco Corp. v. American Airlines, Inc., 983 F.2d 681,

688 (5th Cir. 1993) (reviewing award of attorneys' fees for abuse

of discretion). "It remains important, however, for the district

court to provide a concise but clear explanation of its reasons for
 

18 488 F.2d 714 (5th Cir. 1974).

 

19 The factors include: 1) the time and labor required for the

litigation; 2) the novelty and complication of the issues; 3) the skill required

to properly litigate the issues; 4) whether the attorney had to refuse other work

to litigate the case; 5) the attorney's customary fee; 6) whether the fee is

fixed or contingent; 7) whether the client or case circumstances imposed any time

constraints; 8) the amount involved and the results obtained; 9) the experience,

reputation, and ability of the attorneys; 10) whether the case was "undesirable;"

11) the type of attorney-client relationship and whether that relationship was

long-standing; and 12) awards made in similar cases. 488 F.2d at 717-719.

-17-

the fee award." Hensley, 461 U.S. at 437, 103 S. Ct. at 1941; see

also Brantley, 804 F.2d at 325-26 ("Our concern is not that a

complete litany be given, but that findings be complete enough to

assume a review which can determine whether the court has used

proper factual criteria in exercising its discretion to fix just

compensation."); Nisby v. Commissioners Court, 798 F.2d 134, 137

(5th Cir. 1986) ("When the district court does not explain its

reasons for the attorney's fee it awards, we are unable adequately

to review the propriety of the fee award."); Baughman, 583 F.2d at

1219 (requiring explanation of district court's adjustment of

lodestar). 

We therefore inspect the district court's lodestar analysis

only to determine if the court sufficiently considered the

appropriate criteria. Moreover, Fischbach bears the burden of

showing that further reduction is warranted. See USFL, 887 F.2d at

413 ("[A] party advocating the reduction of the lodestar amount

bears the burden of establishing that a reduction is justified.").

Adjustment of the lodestar in this Circuit involves the

assessment of a dozen factors. Our opinion in Johnson v. Georgia

Highway Express, Inc.18 identifies these factors.19 
 

20 The district court's implication that, as to the limited success

factor, some distinction exists between mandatory and discretionary fee shifting

is, at most, unfortunate surplusage; the portion of the court's findings and

conclusions that follow demonstrate beyond cavil that the court did indeed

"consider" LP&L's degree of success and implicitly explained why there was no

additional lodestar reduction on account of it. 

 

21 Citing United States Football League v. National Football League, 887

F.2d 408 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed.

2d 1022 (1990). USFL, however, does not stand for the proposition that all fees

requested by a prevailing antitrust plaintiff are reasonable; therefore, the

language quoted by the district court does not necessarily support its

conclusion.

-18-

Primarily, Fischbach contests the district court's refusal to

reduce the lodestar to reflect LP&L's "limited success," the eighth

of the Johnson factors. In considering this factor, the district

court ruled:

The results obtained, though disappointing to plaintiff

in quantum, were nonetheless significant. The amount

involved, the $15-17 million sought as opposed to

$500,000 awarded by the jury is not insignificant for

inherent therein is the principle of the matter. . . .

[I]t should be remembered that in this instance the

plaintiff is entitled to a mandatory fee shifting award,

not a discretionary one based on limited success

achieved.

. . . 

Significant here is the fact that plaintiff exposed

the rapacious avarice of educated executives and

professionals. . . . Such conduct cuts the thread of the

fabric of our society and consequences invariably get

borne by the citizenry. The Court considers exposure of

this antitrust violation and racketeering activity to be

an important and highly significant result obtained.20

Moreover, in commenting on various cases cited by the parties, the

district court mentioned with approval language such as "recovery

of the[] reasonable attorney's fees must be sustained regardless of

the amount of damages awarded."21

Fischbach contends that the district court misapplied the law

when it refused to reduce the lodestar for LP&L's limited success.
-19-

See Farrar v. Hobby, ___ U.S. ___, ___, 113 S. Ct. 566, 574, 121 L.

Ed. 2d 494 (1992) (calling the degree of success the most crucial

element in determining the amount of a reasonable fee); Hensley,

461 U.S. at 440, 103 S. Ct. at 1943 ("A reduced fee award is

appropriate if the relief, however significant, is limited in

comparison to the scope of the litigation as a whole."). 

But it is one thing to consider a factor (which is required)

and quite another to act upon it (which is discretionary with the

district court). In his partial dissent, Judge Garza makes the

unqualified statement that the district court "did not even

consider the magnitude of LP&L's success"SQa statement that is

puzzling in light of the portion of the district court's opinion

that is quoted in the text accompanying note 20 supra. When that

court's analysis and pronouncements are read in the context of the

deferential abuse-of-discretion standard that we must apply when

reviewing this issue, we cannot help but disagree with Judge

Garza's statement. Not only did the district court expressly

advert to the magnitude of LP&L's recovery, reciting the quantums

of both the demand and the recovery; that court expressly

"considered" the significance of the countervailing, non-pecuniary

aspects of LP&L's victory, and also explained, at least implicitly,

why it made no additional reduction to the lodestar. If, in its

discretion, the district court had made a reasonable reduction of

the lodestar for limited success, we undoubtedly would have

affirmed that decision as being a proper exercise of discretion:

As we and Judge Garza note, such a reduction is "appropriate" under
 

22 The statute at issue in Ingalls was the Longshore and Harbor Workers'

Compensation Act, 33 U.S.C. § 901-950 (1988). Like the Clayton Act, see 15

U.S.C. § 15 (1988), the LHWCA provides that a successful plaintiff "shall be

awarded a reasonable attorney's fee . . . ." 33 U.S.C. § 928(a) (1988) (emphasis

added).

 

23 Neither case cited by the district court mandates an opposite

conclusion. Sciambra v. Graham News, 892 F.2d 411 (5th Cir. 1990), only

discussed the right to fees, not the amount thereof. Indeed, Sciambra explicitly

declined to address a "limited success" argument because it was not timely made.

Id. at 417. United States Football League v. National Football League, 887 F.2d

408 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1116, 107 L. Ed. 2d

-20-

Hensley. But "appropriate" is not synonymous with "required."

Inasmuch as the district court here clearly did consider limited

success and explain its reasons for not further reducing the

lodestar therefor, that court cannot be said to have abused its

discretion for failure to reduce the lodestar on the basis of that

considered factor. 

We acknowledge at the outset that, to a degree, the district

court's ruling appears to confuse determination of the right to

recover fees with determination of the reasonable amount of that

fee. See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist.,

489 U.S. 782, 793, 109 S. Ct. 1486, 1494, 103 L. Ed. 2d 866 (1989)

("[T]he degree of the plaintiff's overall success goes to the

reasonableness of the award . . . , not to the availability of a

fee award vel non."); Ingalls Shipbuilding, Inc. v. Director,

Office of Workers' Compensation Programs, 991 F.2d 163, 166 (5th

Cir. 1993) (applying "limited success" analysis to mandatory fee

shifting statute);22 see also George Hyman Constr. Co. v. Brooks,

963 F.2d 1532, 1536 (D.C. Cir. 1992) (holding that Hensley standard

regarding amount of reasonable fee applies to all fee shifting

statutes, including mandatory ones).23
1022 (1990), does state that the nominal damages received "does not affect the

entitlement to an award," but it also states that limited results "may be a

factor used in reducing a fee award." (emphasis added). 

LP&L also urges us to affirm the district court's award because a fee award

need not be proportional to the damages to be reasonable. See Meineke Discount

Muffler v. Jaynes, 999 F.2d 120, 126 (5th Cir. 1993) ("[T]he disparity of these

amounts . . . alone will not support a reversal . . . ."). The issue here,

however, is not whether the award should be reversed because it is

disproportional, but whether it is reasonable in light of all factors, one of

which is the degree of success obtained.

-21-

Although the district court found that LP&L's limited victory

was "an important and highly significant result obtained," the

Supreme Court has held that a finding of significant result alone

does not satisfy the district court's duty to evaluate the

magnitude of that result.

We are unable to affirm the decisions below, however,

because the District Court's opinion did not properly

consider the relationship between the extent of success

and the amount of the fee award. The court's finding

that `the [significant] extent of the relief clearly

justifies the award of a reasonable attorney's fee' does

not answer the question of what is `reasonable' in light

of that level of success. We emphasize that the inquiry

does not end with a finding that the plaintiff obtained

significant relief. A reduced fee award is appropriate

if the relief, however, significant, is limited in

comparison to the scope of the litigation as a whole.

Hensley, 461 U.S. at 438-39, 103 S. Ct. at 1942-43 (emphasis

added); see also Blum, 465 U.S. at 900, 104 S. Ct. at 1549

(criticizing fee award because although the award "was based in

part on the District Court's determination that the ultimate

outcome of the litigation `was of great benefit to a large class of

needy people,'" the district court "did not explain . . . exactly

how this determination affected the fee award"). In that respect,

the district court's finding here appears to fall a bit short of

the required analysis. The court's analysis also appears to fall
-22-

short in another respect: LP&L failed to recover at all from

several defendants; and if the district court considered this facet

of this shortfall in LP&L's success, it did not clearly indicate

that it did so. See supra n.15. Nevertheless, we are not prepared

to find that the district court failed to consider LP&L's

relatively limited success; neither are we prepared to hold that

the court abused its discretion in refusing to reduce LP&L's

lodestar further to reflect less than total success, either

monetarily or against all defendants. We find important the fact

that degree of success is but one of 12 Johnson factors, and that

in our deferential testing of the discretion of the court we look

only to consideration of that factor without requiring that a

reduction in lodestar necessarily follow. We, therefore affirm the

district court's handling of limited success and its effectSQor

lack thereofSQon the lodestar factor in this case.

Fischbach also asserts generally that the district court

failed to consider sufficiently other Johnson factors. A district

court's Johnson analysis, however, need not be meticulously

detailed to survive appellate review: "If the district court has

articulated and clearly applied the criteria . . . , we will not

require the trial court's findings to be so excruciatingly explicit

in this area of minutiae that decisions of fee awards consume more

paper than did the cases from which they arose." Blanchard, 893

F.2d at 89; see also Longden v. Sunderman, 979 F.2d 1095, 1100 (5th

Cir. 1992) (finding no abuse when district court discussed each

factor); Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987)
-23-

(refusing to reverse award when, although district court did not

analyze every Johnson factor, the "district court has utilized the

Johnson framework as the basis of its analysis, has not proceeded

in a summary fashion, and has arrived at an amount that can be said

to be just compensation"). As in the instance of the limited

success factor, the district court did not abuse its discretion

when it refused to reduce the lodestar further on the basis of its

consideration of the other Johnson factors.

C

Fischbach next contends that the district court should have

awarded postjudgment interest only from the date of the order

quantifying the fee award, rather than from the date of the

underlying judgment. 28 U.S.C. § 1961 (1988) provides that

postjudgment "interest shall be calculated from the date of the

entry of the judgment . . . ." The question here is whether the

judgment on the merits or the supplemental judgment verifying the

fee award should be used. In Copper Liquor, Inc. v. Adolph Coors

Co., 701 F.2d 542 (5th Cir. 1983) (en banc), we stated:

The relevant judgment for purposes of determining when

interest begins to run is the judgment establishing the

right to fees or costs, as the case may be. . . . If, as

in the usual course, the amount of costs is later

determined by the clerk, interest will nonetheless run

from the date of the judgment allowing costs either

expressly or by legal implication. If a judgment is

rendered that does not mention the right to attorneys'

fees, and the prevailing party is unconditionally

entitled to such fees by statutory right, interest will

accrue from the date of judgment.
 

24 Because LP&L recovered under a mandatory fee shifting statute, it

became entitled to fees on the date of judgment on the merits.

 

25 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990).

 

26 Midamerica Fed. Sav. & Loan Ass'n v. Shearson/American Express, Inc.,

962 F.2d 1470, 1476 (10th Cir. 1992) (stating that "[k]ey to the Kaiser holding

is the date damages are `ascertained' in a meaningful way"); Fleming v. County

of Kane, 898 F.2d 553 (7th Cir. 1990) (awarding interest from date of award of

fees).

 

27 Jenkins v. Missouri, 931 F.2d 1273, 1276-77 (8th Cir.) (adopting

Copper Liquor rule), cert. denied, ___ U.S. ___, 112 S. Ct. 338, 116 L. Ed. 2d

278 (1991).

-24-

Id. at 544-45.24

In Kaiser Aluminum & Chemical Corp. v. Bonjorno,

25 the Supreme

Court refused to calculate interest from the date of an original

judgment that was invalidated because it was not supported by the

evidence. 494 U.S. at 835-36, 110 S. Ct. at 1576. "Where the

judgment on damages was not supported by the evidence, the damages

have not been `ascertained' in any meaningful way." Id. Fischbach

contends that, because attorneys' fees are not quantified at the

time of the judgment on the merits, Kaiser must have overruled

Copper Liquor. Since Kaiser, three Circuits have addressed this

issue. The Seventh and Tenth Circuits held that Kaiser does

supersede Copper Liquor.

26 The Eighth Circuit disagreed,27 deciding

that Kaiser did not squarely address the issue in Copper Liquor.

Jenkins, 931 F.2d at 1276 n.3. We agree with the Eighth Circuit.

Because the earlier judgment in Kaiser was invalid, the party had

no entitlement to damages on that date. Thus, the reasoning in

Kaiser is consistent with Copper Liquor's mandate that interest

should not accrue until the party becomes entitled to the award.
-25-

Indeed, Copper Liquor and Kaiser are consistent in that in neither

case does interest accrue for amounts later reversed. See Copper

Liquor, 701 F.2d at 545 ("If a judgment for attorneys' fees is

later modified by the district court or an appellate court, whether

the award is increased or reduced, interest on the revised award

will run from the date of the original judgment unless, of course,

the allowance of any amount is reversed."). We therefore hold that

Kaiser did not overrule Copper Liquor, so that the district court

here did not err in awarding postjudgment interest from the date of

the judgment on the merits.

D

In its final challenge, Fischbach contests the award of

$45,330.96 in fees for LP&L's experts' response to discovery.

Ordinarily, recovery of expert fees is limited to the statutory

amounts authorized under 28 U.S.C. §§ 1821 and 1920. See Crawford

Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439, 107 S. Ct.

2494, 2496, 96 L. Ed. 2d 385 (1987) ("[W]hen a prevailing party

seeks reimbursement for fees paid to its own expert witnesses, a

federal court is bound by the limit of § 1821(b), absent contract

or explicit statutory authority to the contrary."); see also West

Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, ___, 111 S. Ct.

1138, 1140-41, 113 L. Ed. 2d 68 (1991) (limiting witness fees to

statutory amounts, absent express statutory authority). 

Rule 26(b)(4)(c), however, provides an independent basis for

recovery of expert fees as part of discovery. See Fed. R. Civ. P.
 

28 Rule 26(b)(4)(C) provides:

[T]he court shall require that the party seeking discovery shall pay

the expert a reasonable fee for time spent in responding to

discovery . . . .

Fed. R. Civ. P. 26(b)(4)(C).

 

29 499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).

-26-

26 (b)(4)(C);28 see also Chambers v. Ingram, 858 F.2d 351, 361 (7th

Cir. 1988) (affirming award of Rule 26(b)(4)(C) costs as separate

from § 1821 witness fees). Accordingly, the district court

correctly granted LP&L's request for Rule 26(b)(4)(C) costs. 

But Rule 26(b)(4)(C) applies to both parties, not just to the

prevailing party. The district court should also have awarded Rule

26(b)(4)(C) costs to Fischbach. The court considered this argument

but found the issue moot, concluding that, even if Fischbach was

entitled to these costs, LP&L could have recovered them under the

fee shifting provisions of the antitrust laws. See 15 U.S.C. § 15

(1988) (allowing recovery of cost of suit). We disagree. 

Previously, we have allowed a prevailing antitrust plaintiff to

recover all expenses of the litigation. See, e.g., Copper Liquor,

Inc. v. Adolph Coors Co., 684 F.2d 1087, 1100 (5th Cir. 1982)

(holding that "the Clayton Act embraces all the ordinary and

reasonable expenses of litigation"), modified on other grounds on

appeal after remand, 701 F.2d 542 (5th Cir. 1983). In West

Virginia University Hospitals, Inc. v. Casey,

29 however, the Supreme

Court ruled that a prevailing plaintiff cannot recover expert fees

under a fee shifting statute unless the statute expressly provides

for the recovery of expert fees. 499 U.S. at ___, 111 S. Ct. at

1141-43 (absent specific statutory authorization, shifting of
-27-

attorneys' fees does not include expert witness fees). We

therefore conclude that expert fees are Rule 26(b)(4)(C) costs and

are not recoverable under Casey. Consequently, we reverse the

district court's denial of Fischbach's entitlement to recover Rule

26(b)(4)(C) costs. And, as Fischbach documented its costs and LP&L

did not refute the quantum, we render judgment in favor of

Fischbach and against LP&L in the requested amount of $10,994.21

for Fischbach's expert witness expenses.

The Comstock Appeal:

Comstock challenges several elements of the district court's

final award of costs and fees. First, it contests the denial of

Rule 68 fees. Second, Comstock disputes the final assessment of

certain elements of the taxation of costs. Last, it insists that

the district court neglected to award fees and costs that Comstock

incurred in connection with the instant fee and costs portion of

the suit.

A

Comstock argues that the district court erred in ruling that

it should not recover fees and costs from LP&L under Rule 68 of the

Federal Rules of Civil Procedure. Interpretation of Rule 68 is an

issue of law which we review de novo. Knight v. Snap-On Tools

Corp., 3 F.3d 1398, 1404 (10th Cir. 1993); Erdman v. Cochise

County, 926 F.2d 877, 879 (9th Cir. 1991). Rule 68 states:

At any time more than 10 days before the trial begins, a

party defending against a claim may serve upon the

adverse party an offer to allow judgment to be taken

against the defending party.... If within 10 days after

the service of the offer the adverse party serves written

notice that the offer is accepted, either party may then
 

30 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981).

-28-

file the offer and notice of acceptance together with

proof of service thereof and thereupon the clerk shall

enter judgment.... If the judgment finally obtained by

the offeree is not more favorable than the offer the

offeree must pay the costs incurred after the making of

the offer....

Fed. R. Civ. P. 68.

The purpose of Rule 68 is to encourage the settlement of

litigation by providing an incentive to settle "in those cases in

which there is a strong probability that the plaintiff will obtain

a judgment but the amount of the recovery is uncertain." Delta

Airlines, Inc. v. August, 450 U.S. 346, 352, 101 S. Ct. 1146, 1150,

67 L. Ed. 2d 287 (1981). Rule 68 requires a prevailing plaintiff

to pay the costs of litigation "in the single circumstance where

the plaintiff does not accept the defendant's offer of judgment

which is more favorable than the judgment the plaintiff ultimately

obtains." Johnston v. Penrod Drilling Co., 803 F.2d 867, 869 (5th

Cir. 1986). Consequently, when a plaintiff rejects a Rule 68 offer

of judgment, "he will lose some of the benefits of victory if his

recovery is less than the offer." Delta, 450 U.S. at 352, 101 S.

Ct. at 1150.

If a plaintiff takes nothing, however, Rule 68 does not apply.

In Delta Airlines, Inc. v. August,

30 the Supreme Court limited Rule

68 to cases in which a plaintiff obtains a judgment against the

defendant; the rule is not applicable when a defendant actually

prevails over the plaintiff. See 450 U.S. at 351-52, 101 S. Ct. at

1149-50 (finding Rule 68 "simply inapplicable to this case because
-29-

it was the defendant that obtained the judgment"); see also Landon

v. Hunt, 938 F.2d 450, 452 n.1 (3d Cir. 1991) (commenting that

defendant could not recover under Rule 68 when plaintiff's claim

was dismissed); Allen v. United States Steel Corp., 665 F.2d 689,

697 (5th Cir. 1982) (refusing Rule 68 costs to a defendant who

prevailed). The Court noted that costs are usually assessed

against a losing plaintiff as a normal incident of defeat but that

this exception is created so that "a nonsettling plaintiff does not

run the risk of suffering additional burdens that do not ordinarily

attend to a defeat . . . ." 450 U.S. at 352, 101 S. Ct. at 1150.

Comstock contends that it should recover Rule 68 costs

because, instead of a take nothing judgment, LP&L recovered

$500,000. Comstock argues that Delta is inapplicable because LP&L

was not defeated, and it should lose some of the "benefits of

victory" for failing to accept Comstock's reasonable offer of

judgment.

Here, plaintiff LP&L's recovery was against other defendants,

however; plaintiff LP&L took nothing against defendant Comstock.

In other words, defendant Comstock actually prevailed totally

against plaintiff LP&L. Comstock has not presented any argument

that would compel a Rule 68 comparison of its offer of judgment to

LP&L and the judgment that LP&L obtained against other defendants.

Rule 68 operates by comparing two clearly defined amounts.

Johnston, 803 F.2d at 870. This comparison is of the "money or

property," including "costs then accrued," set out in the offer and

the "judgment finally obtained by the offeree." Fed. R. Civ. P.
 

31 We have previously encountered the question whether recovery against

one defendant may apply to a Rule 68 determination with respect to another

defendant-offeror. In Johnston v. Penrod Drilling Co., 803 F.2d 867, 870 (5th

Cir. 1986), two defendants made an unapportioned joint offer of judgment to the

plaintiff. We vacated the district court's decision because it had not included

the settlement against the first defendant in the Rule 68 calculation for the

second defendant. Johnston is distinguishable, however, because the settlement

was made with a joint offeror, not with an unrelated defendant.

 

32 Comstock also appealed the district court's finding that its Rule 68

offer of judgment was not timely. Our decision regarding the applicability of

Delta renders that issue moot.

-30-

68. Accordingly, Rule 68 compares the amount of an offer of

judgment, whether made by one defendant or jointly made by multiple

defendants,31 and the amount of the judgment, if any, taken by the

offeree against the offeror or offerors. If no judgment is taken

by the offeree plaintiff against the offeror defendant or joint

offeror defendants, the Delta rule applies. 

Comstock made an offer of judgment to LP&L, and LP&L took

nothing against Comstock. LP&L's recovery against other nonofferor defendantsSQnone of which were joint offerors with

ComstockSQis irrelevant to the Rule 68 inquiry. Consequently,

Comstock cannot recover its fees under Rule 68.32

B

Additionally, Comstock challenges the district court's

approval of the clerk of court's final taxation of costs against

LP&L, arguing that the clerk erroneously struck certain items. We

will not overturn the district court's taxation of costs absent a

clear abuse of discretion. Nissho-Iwai Co. v. Occidental Crude

Sales, Inc., 729 F.2d 1530, 1551 (5th Cir. 1984);

Studiengesellschaft Kohle mbh v. Eastman Kodak Co., 713 F.2d 128,

131 (5th Cir. 1983). Although Rule 54(d) of the Federal Rules of
 

33 Rule 54(d) provides:

Except when express provision therefor is made either in a statue of

the United States or in these rules, costs other than attorneys'

fees shall be allowed to the prevailing party unless the court

otherwise directs . . . .

Fed. R. Civ. P. 54(d).

 

34 Comstock's experts, David Pike and E.J. Janik, attended 38 and 11

days of trial, respectively. Pike testified on three days, and Janik testified

on one day. The district court actually granted five days for Pike and three

days for Janik. This equated to the number of days spent testifying plus travel

before and after.

-31-

Civil Procedure directs a district court to award costs to a

prevailing party,33 that court cannot award any costs not authorized

by statute. "[E]xpenditures for those categories of expenses

listed in 28 U.S.C. § 1920 may be recovered only if they are

allowed by that section." Copper Liquor, Inc. v. Adolph Coors Co.,

684 F.2d 1087, 1101 (5th Cir. 1982). Section 1920 provides:

A judge or clerk of any court of the United States may

tax as costs the following:

. . . 

(3) Fees and disbursements for printing and

witnesses;

(4) Fees for exemplification and copies of

papers necessarily obtained for use in the

case;

. . . .

28 U.S.C. § 1920 (1988). Moreover, "[i]tems proposed by winning

parties as costs should always be given careful scrutiny." Farmer

v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S. Ct. 411, 416,

13 L. Ed. 2d 248 (1964).

Comstock first contends that the district court erred when it

refused to allow witness fees for each day that two of its experts

attended the trial.34 It is true that a party may recover witness

fees not only for days on which the witness testified, but also for

days spent attending the trial beforehand. See Nissho-Iwai, 729
-32-

F.2d at 1552-53 (allowing fees for days prior to witnesses'

testimony). Fees for these preliminary days are limited, however,

to days that witnesses spend holding themselves available to

testify. See Hurtado v. United States, 410 U.S. 578, 584, 93 S.

Ct. 1157, 1161, 35 L. Ed. 2d 508 (1973) (allowing fees for days

spent "in readiness to testify"); Nissho-Iwai, 729 F.2d at 1552

(granting fees for days witness expected to, but did not actually,

testify). The district court approved its clerk's determination

that only a portion of the days Pike and Janik attended the trial

were expended in the expectation that they would testify on those

days. We find no abuse of discretion in this decision.

Comstock next insists that the district court should have

allowed recovery of the costs of defendants' trial exhibits. A

district court may authorize the production of trial exhibits if so

doing would "facilitate the just, speedy, and inexpensive

disposition of the action." Fed. R. Civ. P. 16(c)(16); see also

Johns-Manville Corp. v. Cement Asbestos Prods. Co., 428 F.2d 1381,

1385 (5th Cir. 1970) (looking to Rule 16 for pretrial authorization

of models and charts). Absent pretrial approval of the exhibits,

however, a party may not later request taxation of the production

costs to its opponent. Johns-Manville, 428 F.2d at 1385; see also

Studiengesellschaft, 713 F.2d at 133 (reversing award of exhibit

costs where party had not obtained pretrial authorization).

Comstock asserts that the pretrial order authorized the production

of its exhibits by requiring exhibits to be "exchanged prior to

trial in accordance with this order." We find no such
 

35 See supra Part II (Fischbach Appeal), D.

-33-

authorization in this language: Requiring the exchange of exhibits

prior to trial does not imply authorization of production of those

exhibits. Accordingly, the district court did not err in denying

recovery by Comstock of the costs of its exhibits.

Comstock also challenges the district court's affirmance of

the clerk of court's valuation of Comstock's allowable photocopying

charges. On this claim Comstock presents virtually no legal

argument; instead, it simply alleges conclusionally that both the

clerk and the district court abused their discretion. After

reviewing the record, we find that the clerk of court carefully

assessed each item in the request. Consequently, we find no abuse

of discretion by either the clerk or the district court.

And, like Fischbach, Comstock challenges the district court's

simultaneous award of Rule 26(b)(4)(C) costs to LP&L and denial of

the same costs to Comstock. It submitted requests for its share of

such cost in the sum of $7,254.98; and although LP&L contests the

timeliness of Comstock's request and complains in a conclusionary

manner that Comstock overstated its claim and failed to offer

evidence of its method of calculation, the dollar amount itself is

not truly disputed. We have already discussed Rule 26(b)(4)(C) in

our review of Fischbach's appeal,35 and that analysis applies here

as well. Comstock is thus entitled to these costs in the amount

requested.

LP&L responds that, even if Comstock is allowed recovery of

Rule 26(b)(4)(C) costs, its request for these costs was not timely
 

36 Local Rule 5.04E provides:

Within thirty days after receiving notice of entry of judgment,

unless otherwise ordered by the court, the party in whose favor

judgment is rendered and who claims and is allowed costs, shall

. . . file with the Clerk a notice of application to have the costs

taxed . . . .

Fed. Local Ct. Rules, E.D. La., Rule 5.04E.

 

37 We do not mean to imply that, under all circumstances, a party may

file a request for Rule 26(b)(4)(C) costs nine months after judgment on the

merits. The record reflects multiple changes and disputes about the fees

extending over a period of many months. Accordingly, we merely hold that on the

specific facts of this case, Comstock may recover its Rule 26(b)(4)(C) costs.

-34-

under Local Rule 5.04E.36 Comstock timely filed its original

application for taxation of costs, but did not add its request for

Rule 26 costs until nine months later. Although Local Rule 5.04E

imposes a thirty day limit on cost applications and supporting

memoranda, this rule specifically refers to costs recoverable by

"the party in whose favor judgment is rendered." Fed. Local Ct.

Rules, E.D. La., Rule 5.04E. We have already noted that Rule

26(b)(4)(C) costs are not limited to prevailing parties; and we

hold that Rule 26(b)(4)(C) fees do not fall within the kinds of

costs covered by Local Rule 5.04E. See also Chambers, 858 F.2d at

360-61 ("The advisory committee notes to Rule 26(b)(4)(C) state

that the court may issue an order to pay fees as a condition to

discovery `or it may delay the order until after discovery.'"

(quoting Fed. R. Civ. P. 26(b)(4)(C))). Accordingly, we hold that

the district court improperly denied Comstock's Rule 26(b)(4)(C)

request and render judgment in favor of Comstock and against LP&L

in the sum of $7,254.98 to cover those items.37

C

Comstock's last contention is that the district court erred
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when it refused to award costs and fees to Comstock for pursuing

its cost application. A district court may award costs and fees

for time spent litigating a cost or fee request. See Alberti v.

Klevenhagen, 896 F.2d 927, 937-38 (5th Cir.) (affirming taxation of

costs for expenses solely related to fee litigation), vacated on

other grounds, 903 F.2d 352 (5th Cir. 1990). We shall not,

however, disturb a district court's decision regarding fees for

cost recovery litigation absent an abuse of discretion. See id.;

see also Chemical Mfrs. Ass'n v. U.S.E.P.A., 885 F.2d 1276, 1283

(5th Cir. 1989) (approving compensation for time spent on fee

application because amount was within district court's discretion);

Spray-Rite Serv. Co. v. Monsanto Co., 684 F.2d 1226, 1250 (5th Cir.

1982) (affirming district court's discretion in awarding fees and

costs for time spent litigating its right to fees). Comstock

recovered only part of the costs and fees it requested. In

challenging Comstock's request, LP&L too was only partially

successful. Refusing to tax fees and costs for the instant cost

litigation fell well within the district court's proper exercise of

its discretion.

III

For the foregoing reasons, we affirm the district court's

determination of LP&L's reasonable hourly rates for its attorneys,

but we modify the district court's determination of LP&L's

reasonable hours, reducing by 10% the specific portions of those

fees challenged by Fischbach as inadequately detailed, and

eliminating entirely the portion of the district court's award that
 

38Percentage reduction applicable to (1) $115,070 reflected in quarterly

summaries for period from February 1986 to July 1987; (2) $154,080 reflected in

month-end summaries for two attorneys during 1987 and 1988; and (3) $82,915 for

charges in November and December 1988, for which no time records were submitted,

totaling in the aggregate $352,065.00. 

 

39This reduction was imposed by the district court. 

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allowed $6,465.00 in fees for Attorney Madigan. We also affirm the

district court's (1) 15% overstaffing reduction of LP&L's lodestar

amount; (2) award of postjudgment interest from the date of the

judgment on the merits; (3) award to LP&L of costs (including

Rule 26(b)(4)(C) costs, other expenses, and fees for other

attorneys). Further, we affirm the district court's award of

attorneys' fees to Comstock and its denial of Rule 68 costs to

Comstock, and we affirm the quantum of the district court's costs

taxation to Comstock; but we reverse the district court's denial of

Rule 26 (b)(4)(C) costs to Fischbach and to Comstock, and render

judgment therefor against LP&L and in favor of Comstock in the

amount of $7,254.98, and in favor of Fischbach in the amount of

$10,994.21. 

As modified, the award to LP&L against Fischbach is as

follows: 

Original fee request: $ 4,327,276.30

10% reduction - inadequate documentation:38 (35,206.50)

 Fees disallowed for Attorney Madigan (6,465.00)

Lodestar $ 4,285,604.80

15% reduction - overstaffing:39 (642,840.72)

Reasonable Attorneys Fees: $ 3,642,764.08

Costs $ 172,246.61

Other expenses 322,876.90

Fees for other attorneys 9,585.36
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GROSS AWARD: $ 4,147,472.95

LESS: Rule 26 costs from LP&L to Fischbach (10,994.21)

Net Award: LP&L against Fischbach $ 4,136,478.74

 

In conclusion we hereby enter judgment in the net sum of

$4,136,478.74, plus postjudgment interest, against Fischbach and in

favor of LP&L; and we increase the district court's judgment

against LP&L and in favor of Comstock by $7,254.98 for its Rule 26

costs. 

AFFIRMED in part; MODIFIED and, as modified, AFFIRMED in part; and

REVERSED and RENDERED in part. 

EMILIO M. GARZA, Circuit Judge, concurring in part, and dissenting

in part:

I concur in the above opinion with the exception of Part II.B.

In my view, the district court applied the wrong legal standard and

abused its discretion in refusing to adjust the lodestar for LP&L's

limited success. The district court stated that "recovery of the[]

reasonable attorney's fees must be sustained regardless of the

amount of damages awarded," and explained that cases such as Farrar

v. Hobby, ___ U.S. ___, ___, 113 S. Ct. 566, 574, 121 L. Ed. 2d 494

(1992) (calling the degree of success the most crucial element in

determining the amount of a reasonable fee), and Hensley v.

Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 1943, 76 L. Ed. 2d

40 (1983) ("A reduced fee award is appropriate if the relief,

however significant, is limited in comparison to the scope of the
 

1 See supra, per curiam opinion, text accompanying note 21.

 

2 The majority finds this statement "puzzling" and suggests that the

district court did consider the magnitude of LP&L's success. The district court,

however, only "considered" LP&L's limited success as a threshold question, that

is, whether a mandatory fee statute permits any consideration of limited success.

Because the district court answered this question "no," it never reached the

question of whether to "act on [the limited success]." It is the failure to

reach this secondary question which I challenge and to which I refer here.

 

3 See supra per curiam opinion, text accompanying notes 22-23,

explaining that the district court's ruling confuses the right to recover fees

with the determination of the amount of that fee, and that a finding of

significant result alone does not satisfy the district court's duty to evaluate

the magnitude of that result. As in Hensley, the district court's finding that

LP&L's success was significant "does not answer the question of what is

`reasonable' in light of that level of success." 461 U.S. at 439, 103 S. Ct. at

1942.

litigation as a whole."), did not apply to mandatory fee statutes.1

Accordingly, the district court did not even consider the magnitude

of LP&L's success.2 The Supreme Court explicitly has dictated

otherwise: Farrar and Hensley apply to all cases.3 Because the

district court failed to apply the correct legal standard, I would

reverse. Moreover, in my view, a recovery of less than five

percent of the damages requested and against only two of twelve

defendants warrants some reduction of fees. For these reasons, I

would hold that the district court abused its discretion in

refusing to reduce the lodestar, and either remand to the district

court to apply the proper standard and to determine what percentage

reduction, if any, is warranted by the record's demonstration of

LP&L's limited success, or, alternatively, reduce the lodestar by

an additional twenty percent. Because the per curiam opinion

affirms the district court's ruling on this point, I respectfully

dissent.