1

Petitioners submitted their initial fee application with an appendix in support on August 28, 2007. This

appendix included relevant procedural history that was not included in the appendices submitted on September 28 or

October 12, 2007. Since the procedural history is not in dispute, the Court refers to the August 28, 2007 appendix

(hereinafter, “Aug. 28 App.”) where appropriate.

- 1 -

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HCC AVIATION INSURANCE GROUP, §

INC., and UNIVERSAL LOSS §

MANAGEMENT, INC., §

 §

Petitioners, §

 §

v. § Civil Action No. 3:05-CV-744-M (BH)

 §

EMPLOYERS REINSURANCE §

CORPORATION, §

 §

Respondent. § Referred Motion

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

Pursuant to the District Court’s Order of Referral, filed December 19, 2007, the following

motions were referred to this Court for hearing, if necessary, and for issuance of findings of fact and

recommendations to the District Court for disposition:

(1) Petitioners’ Fee Application (“Mot.”), filed September 28, 2007;

(2) Appendix Supporting Petitioners’ Fee Application (“Mot. App.”), filed 

September 28, 2007;1

(3) Respondent’s Brief in Opposition to Petitioner’s Fee Application (“Resp.”), filed

October 12, 2007;

(4) Appendix Supporting Respondent’s Brief in Opposition to Petitioners’ Fee

Application (“Resp. App.”), filed October 12, 2007;

(5) Petitioners’ Reply in Support of Fee Application (“Reply”), filed October 19, 2007;

(6) Respondent’s Motion to Strike Petitioners’ Reply in Support of Fee Application
- 2 -

(“Mot. Strike”), filed October 24, 2007;

(7) Respondent’s Memorandum in Support of its Motion to Strike Petitioners’ Reply in

Support of Fee Application (“Mot. Strike Br.”), filed October 24, 2007;

(8) Appendix Supporting Respondent’s Motion to Strike Petitioners’ Reply in Support

of Fee Application (“Mot. Strike App.”), filed October 24, 2007;

(9) Petitioners’ Response in Opposition to ERC’s Motion to Strike Petitioners’ Reply in

Support of Fee Application (“Mot. Strike Resp.”), filed October 26, 2007;

(10) Brief in Support of Petitioners’ Response in Opposition to ERC’s Motion to Strike

Petitioners’ Reply in Support of Fee Application (“Mot. Strike Resp. Br.”), filed

October 26, 2007;

(11) Employers Reinsurance Corporation’s Reply in Support of Its Motion to Strike

Petitioners’ Reply Brief in Support of Fee Application (“Mot. Strike Reply”), filed

October 30, 2007; and

(12) Appendix Supporting Employers Reinsurance Corporation’s Reply in Support of Its

Motion to Strike Petitioners’ Reply Brief in Support of Fee Application (“Mot. Strike

Reply App.”), filed October 30, 2007. 

Having reviewed the pertinent filings above and the law applicable to the issues raised, the Court

finds that Petitioners’ Fee Application should be GRANTED in part.

I. BACKGROUND

The instant application for attorney’s fees arises from the confirmation of an arbitration

award relating to a 1996 aircraft accident. The aircraft’s student-pilot sued his instructor in West

Virginia state court for personal injuries he suffered during the crash. The instructor sought defense

and indemnification from his insurer, Ranger Insurance Company (“Ranger”), and Ranger refused.

The student-pilot and instructor settled the personal injury claims, and they jointly asserted bad faith

claims against Ranger. Subsequently, Ranger settled the bad faith claims.

Ranger and its reinsurer, Respondent Employers Reinsurance Corporation (“ERC”), filed

a lawsuit in West Virginia state court against its defense attorneys in the personal injury suit in
- 3 -

September of 2001. Ranger and ERC also sued the “claims handling facilities” responsible for

managing the Ranger insurance claims at issue, Petitioners HCC Aviation Insurance Group, Inc.

(“HCC”) and Universal Loss Management, Inc. (“ULM”). On December 2, 2002, HCC and ULM

stipulated with ERC that all claims remaining between them would be stayed and submitted to

binding arbitration as required by the reinsurance agreement between HCC and Ranger. 

The reinsurance agreement specified that the arbitration would be conducted under the

Federal Arbitration Act (“FAA”). (Aug. 28 App. at 16). It also expressly provided that after the

arbitration panel issued its decision, 

[e]ither party may apply to the United States District Court for an order confirming

any decision and the award; a judgment of that court shall thereupon be entered on

any decision or award. If such an order is issued, the attorney’s fees of the party so

applying and court costs will be paid by the party against whom confirmation is

sought. 

(Article 22(D), Aug. 28 App. at 17-8).

The arbitration took place in March 2005 in Dallas, Texas. On April 8, 2005, the arbitration

panel issued its final award and denied in its entirety ERC’s request for $4.3 million in damages as

well as costs and attorney’s fees. (Id. at 131-32). The arbitration panel also denied HCC and

ULM’s request for legal fees and expenses. (Id. at 132). 

HCC and ULM filed their petition to confirm the arbitration award in the District Court for

the Northern District of Texas on April 15, 2005. (Id. at 133-37). ERC subsequently filed a motion

to vacate the arbitration award in the West Virginia state court on May 6, 2005, and a motion to

dismiss or stay the arbitration award in the District Court on May 13, 2005. After the District Court

denied ERC’s motion to dismiss, ERC filed a motion to vacate the arbitration award on July 8, 2005.

(Id. at 30, 72-84, 85-106). The District Court vacated the award on September 13, 2005, and HCC
- 4 -

and ULM appealed the decision to the Fifth Circuit. After oral argument, the Fifth Circuit reversed

the District Court on June 28, 2007. (Mot. App. at 1-13); see HCC Aviation Ins. Group, Inc. v.

Employers Reins. Corp., 243 Fed.Appx. 838 (5th Cir. 2007). Pursuant to the Fifth Circuit’s

mandate, the District Court entered its final judgment confirming the arbitration award on August

15, 2007. (Mot. App. at 1). In light of the Fifth Circuit’s ruling and the District Court’s entry of

judgment, the West Virginia state court dismissed with prejudice on September 5, 2007, ERC’s

pending motion to vacate. (Id. at 14). 

Petitioners now seek payment for more than two years of legal services provided in the postarbitration confirmation litigation in the District Court, the Fifth Circuit, and in the West Virginia

state court. (See Mot.).

II. MOTION TO STRIKE

Respondent moves to strike Petitioners’ 21-page reply brief because it exceeds the maximum

page limitation set forth in Local Rule 7.2(c). (Mot. Strike at 1). Under the local rules, “[a] reply

brief must not exceed 10 pages. Permission to file a brief in excess of these page limitations will

be granted by the presiding judge only for extraordinary and compelling reasons.” L.R. 7.2(c). 

Petitioners contend that no page limitation applies to their reply because this Court’s

September 1, 2007 order regarding the fee application did not specify page limitations or require

briefs in support. (Mot. Strike Resp. at 2). Since the September 1, 2007 order did not specify

otherwise, the page limitations of the local rules governing motion practice applied to the briefs for

the instant motion. Thus, the reply brief filed by Petitioners in support of their fee application was

limited to 10 pages. See L.R. 7.2(c). Because Petitioners did not seek leave to file their 21-page

reply brief, it does not comply with the local rules. 
- 5 -

Petitioners assert in the alternative that if a page limitation applies, the rules governing

motions for summary judgment are more applicable to fee applications than the rules governing

motion practice. (Mot. Strike Resp. at 2-4). The 25-page limit for a reply to a motion for summary

judgment is an express modification applicable only to motions for summary judgment; it does not

affect the motion practice prescribed by local rules 7.1 through 7.3 that applies to fee applications.

L.R. 56.1; L.R. 56.5(b).

Because Petitioners’ reply brief exceeded the page limit without leave to do so, only the first

ten pages will be considered. Nat’l Architectural Prods. Co. v. Atlas-Telecom Servs.-USA, 2007 WL

2051125, *3 (N.D. Tex. July 13, 2007). Accordingly, Respondent’s motion should be GRANTED.

III. RECOVERY OF FEES AND COSTS

The parties initially dispute whether Petitioners are entitled to recover their attorney’s fees

and costs in connection with post-arbitration proceeding in the District Court. The parties also

dispute whether Petitioners may recover their fees and costs for proceedings in the Fifth Circuit and

West Virginia court.

A. District Court

Ordinarily, attorney’s fees are not awarded to a prevailing party absent statutory authority

or contractual language. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).

In the instant case, HCC and ERC agreed to arbitrate their disputes in accordance with the

reinsurance agreement between HCC and Ranger. (Aug. 28 App. at 16). Under the express terms

of the agreement, if the United States District Court entered an order confirming any decision and

the award and judgment, “the attorney’s fees of the party so applying and court costs will be paid

by the party against whom confirmation is sought.” (Article 22(D), Aug. 28 App. at 17-8) (emphasis
2

Because the Court finds that the express contractual language of the arbitration agreement supports

Petitioner’s entitlement to fees, it need not consider their alternative arguments for fees under Federal Rules of Civil

Procedure 54(c) and 10(c). See Mot. at 11-13; Resp. at 5-10.

- 6 -

added). Petitioners submitted a petition to the District Court to confirm the arbitration award on

April 15, 2005. Pursuant to the Fifth Circuit’s mandate, the District Court entered judgment

confirming the arbitration award on August 15, 2007. (Mot. App. at 1). Since the District Court

issued the order of confirmation, a plain reading of the express contractual language of Article 22(D)

indicates that Petitioners are entitled to recover their attorney’s fees and court costs arising from the

confirmation proceedings in the District Court.2

Notwithstanding the express contractual language of the arbitration agreement, Respondent

contends that Petitioners waived their right to recover their fees and costs by failing to plead their

intention to seek attorneys’ fees as special damages when they filed their petition to confirm the

arbitration award. (Resp. at 3-4). In support of this contention, Respondent cites to Federal Rule

of Civil Procedure 9(g), which requires special damages (such as attorney’s fees) to be specifically

stated in a complaint in order to be claimed. (Mot. Resp. at 4); Fed. R. Civ. P. 9(g); see United

Industries v. Simon-Hartley, 91 F.3d 762, 764-65 (5th Cir. 1996) (considering attorney’s fees to be

special damages). The premise underlying this assertion is that Petitioners’ application for

confirmation is a pleading. The FAA, which applies to the arbitration proceedings between the

parties, considers an application for confirmation of an award to be a motion, not a pleading

initiating an action. 9 U.S.C. § 6. Indeed, relevant case law from this circuit distinguishes motions

to confirm arbitration awards from pleadings initiating actions. Alstom Power, Inc. v. S&B Eng’rs

& Constructors, Ltd., 2007 WL 1284968, *2 (N.D. Tex. Apr. 30, 2007) (motion to confirm

arbitration award is not an action and thus is not subject to voluntary dismissal under Rule 41);
- 7 -

SmartPrice.com, Inc. v. Long Distance Servs., Inc., 2007 WL 1341412, *3 (W.D. Tex. May 4, 2007)

(citing D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 108 (2d Cir. 2006)) (motion to confirm

arbitration award is a motion in an ongoing proceeding, rather than a complaint initiating a plenary

action). Since Petitioners’ April 15, 2005 filing with the District Court is a motion and not a

pleading, it is not subject to the specific pleading requirements of Rule 9(g). Petitioners therefore

were not required to specifically state their request for attorney’s fees when they filed their motion

to confirm the arbitration award. 

B. Fifth Circuit

Having determined that Petitioners are entitled to recover their attorney’s fees and costs from

the post-arbitration proceedings in the District Court, the Court next considers whether they may

also recover expenses from proceedings in the Fifth Circuit. 

It is well-established precedent that a party entitled to recover attorney’s fees and costs at

trial is also entitled to recover them for successfully defending the case on appeal. DP Solutions,

Inc. v. Rollins, Inc., 353 F.3d 421, 436 (5th Cir. 2003) (finding that plaintiff was entitled to

attorney’s fees relating to its defense of the district court judgment on appeal) (citing Gunter v.

Bailey, 808 S.W.2d 163, 165-66 (Tex.App.-El Paso1991, no writ)). In the instant case, the fees and

costs Petitioners incurred on appeal to the Fifth Circuit necessarily were incurred as part of their

request for judicial confirmation. Since the parties entered into an agreement that the fees and costs

incurred in securing judicial confirmation would be paid by the party against whom confirmation

is sought, the Court finds that Petitioners are entitled to attorney’s fees and court costs incurred on

appeal to the Fifth Circuit. DP Solutions, 353 F.3d at 436. 
- 8 -

C. West Virginia State Court

The Court next considers whether Petitioners are entitled to recover fees and expenses

incurred from the post-arbitration proceedings in the West Virginia state court. Respondent initiated

a motion to vacate the arbitration award in West Virginia on May 6, 2005, approximately three

weeks after Petitioners filed their motion to confirm in the District Court. The Anti-Injunction Act

precluded Petitioners from requesting the District Court to enjoin the West Virginia proceedings.

See 28 U.S.C. § 2283. Petitioners therefore were required to continue litigation in the parallel state

court proceeding to prevent the West Virginia court from vacating the arbitration award. 

Respondent maintains that it filed its motion to vacate in West Virginia because the

December 2, 2002 order from the West Virginia Court retained jurisdiction over the matters referred

to arbitration. (Resp. at 12; Aug. App. at 50). This argument ignores the express contractual

language of Article 22(D) of the reinsurance treaty, which stated that the District Court was the

appropriate forum for requesting the order of confirmation. See also 9 U.S.C. § 9 (agreement

specifies the court for confirmation). Additionally, Respondent declined to follow the Federal

Arbitration Act, which designates the District Court as the appropriate forum for a motion to vacate.

9 U.S.C. § 10. 

Respondent also contends that the motion to vacate was not a proceeding to confirm the

arbitration award and therefore does not fall within the purview of Article 22(D). (Resp. at 12). The

motion to vacate, however, necessarily raised the legal issue of the confirmation of the arbitration

award. Indeed, the issue of confirmation was so central to the motion to vacate that once the District

Court confirmed the petition for confirmation, the West Virginia court dismissed the motion to

vacate with prejudice. See Mot. App. at 14. 
- 9 -

Essentially, Respondent seeks to prevent Petitioners from recovering legal expenses incurred

as a direct result of its own decision to pursue a parallel state court proceeding despite express

contractual language designating the District Court as the appropriate forum. The expenses incurred

by Petitioners’ defense of the motion to vacate were part of the confirmation proceedings, and under

Article 22(D), Petitioners are entitled to recover attorney’s fees and costs incurred in West Virginia

state court proceedings. 

IV. PETITIONERS’ ATTORNEY’S FEES

Having determined that Petitioners are entitled to recover their fees and expenses incurred

in the District Court, Fifth Circuit and West Virginia state court, the Court turns to whether the fees

and expenses are reasonable. Petitioners seek $335,936.45 in attorney’s fees by this application:

$327,811.45 for attorney’s fees in the confirmation litigation prior to September 1, 2007, and

$8,125.00 for attorney’s fees in conjunction with this application. (Mot. at 13). 

A. Methodology for Calculation of Attorney’s Fees

In adjudicating an attorney’s fees award, a court first calculates a “lodestar” fee by

multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for

the participating lawyers. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Louisiana Power

& Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The fee applicant bears the burden of

proof on this issue. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); Louisiana

Power & Light Co., 50 F.3d at 324. In the second step of the lodestar method, a court must consider

whether the lodestar figure should be adjusted upward or downward depending on its analysis of the

twelve factors established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
3

The twelve 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. Cobb v. Miller,

818 F.2d 1227, 1231 n.5 (5th Cir. 1987) (citing Johnson, 488 F.2d at 717-19). 

4

The affidavit of Richard Colquitt states that Petitioners billed a total of 838.65 hours of attorney time in the

confirmation litigation. (Mot. App. at 2, ¶6). Petitioners do not offer an explanation for the discrepancy between the

two numbers sought, so the Court utilizes the lower number of 746.95 hours.

- 10 -

Cir.1974).3 Riley, 99 F.3d at 760; Louisiana Power & Light, 50 F.3d at 331. “Many of these factors

usually are subsumed within the initial calculation of hours reasonably expended at a reasonable

hourly rate and should not be double-counted.” Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d

205, 209 (5th Cir. 1998) (internal citations omitted). The most critical factor in determining the

reasonableness of an attorney’s fee award is the degree of success obtained. Hensley, 461 U.S. at

436.

B. Calculation of the Lodestar

The first step in the lodestar analysis requires the court to determine the reasonable number

of hours expended by Petitioners’ counsel, as well as their reasonable hourly rate. Petitioners offer

time records and affidavits in support of their application.

1. Reasonable Number of Hours

Petitioners contend that they expended a total of 746.95 hours of attorney time in the

confirmation litigation prior to September 1, 2007. (Mot. at 13).4

 When this number is combined

with the 25 hours expended in preparation of this fee application, (see Mot. at 13; Mot. App. at 4,

¶12), the 771.95 hours sought by Petitioners are divided as follows:

Richard P. Colquitt 609.9 hours

William J. Boyce 162.05 hours
- 11 -

Respondent raises a number of objections to Petitioners’ fee application.

a. Use of Block Billing

Respondent objects to Petitioners’ use of “block billing” to record the amount of time spent

on each task. (Resp. at 16-23). “Block billing” is a “time-keeping method by which each lawyer

and legal assistant enters the total daily time spent working on a case, rather than itemizing the time

expended on specific tasks.” Glass v. U.S., 335 F.Supp.2d 736, 739 (N.D. Tex. 2004) (citing

Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1534 n. 15 (10th Cir.1996)). The

use of “block billing” or “lumped” time entries is problematic because it prevents the court from

evaluating the reasonableness of the bill. Hollowell v. Orleans Regional Hosp., LLC, 217 F.3d 379,

392-93 (5th Cir. 2000). Respondent does not cite to specific entries, but rather alleges that all of the

time entries are lumped together. 

In support of their fee application, Petitioners provide invoices of the work performed in

connection with the lawsuit. As required by this Court’s September 1, 2007 order, each entry

contains the date, the name of the attorney, the amount of time expended down to the tenth of an

hour, and a brief description of the work performed. (See docket #40 at 3-4). While many of the

daily entries contain multiple tasks without an itemization of the amount of time spent on each task,

the descriptions are sufficiently detailed for the Court to assess the reasonableness of the work

performed. Hollowell, 217 F.3d at 392-93. Moreover, without objections to specific entries,

Respondent has not shown that the entries are unreasonable. 

b. Time Unrelated to the Litigation

Respondent contends that Petitioners billed for work unrelated to the confirmation

proceedings. Specifically, Respondent objects to the 42.6 hours Mr. Colquitt billed for contacts with
5

Respondent contends that Petitioners billed for 1.7 hours for discussions with the Dan Schmidt, one of

HCC’s arbitrators, on April 22, 2005. (Resp. at 17). The billing records do not reflect this conversation took place

on this date. (See Mot. App. at 37). The Court therefore overrules Respondent’s objection to these 1.7 hours.

- 12 -

HCC’s arbitrators.5 (Resp. at 17-21; see Mot. App. at 37-38, 41-43, 46, 48, 53-54). Respondent also

objects to the 0.5 hours Mr. Colquitt billed for discussions on matters that were not referred to

arbitration. (Resp. at 19; see Mot. App. at 48). 

Hours which are not “reasonably expended on the litigation” should be excluded from any

award. Alberti v. Klevenhagen, 896 F.2d 927, 933-34 (5th Cir. 1990), vacated in part on other

grounds, 903 F.2d 352 (5th Cir.1990); see also Hensley, 461 U.S. at 434. All of Mr. Colquitt’s

contacts with the arbitrator took place after the arbitration award was issued on April 8, 2005.

Petitioner has not shown that these 42.6 hours were reasonably expended since the arbitrator was

not involved in the confirmation litigation. Some of the entries to which Respondent objects contain

tasks in addition to contact with the arbitrator. (See Mot. App. at 38, 41-43) (entries for May 19,

2005; June 6, 2005; September 19, 2005; October 5, 2005). Petitioners did not provide the number

of hours spent on each task within a given entry, and the Court therefore cannot segregate the

specific number of hours expended on contact with the arbitrator from the other tasks performed.

As a result, the Court excludes all time in those entries. Rappaport v. State Farm Lloyds, 2000 WL

769224, at *4 (N.D. Tex. June 13, 2000) (denying fees requested for a specific period after finding

that the failure to segregate made it “impossible for the Court to determine the amount of time

reasonably expended”) (emphasis in original). As for the 0.5 hours requested for discussions with

attorneys on matters not referred to arbitration, these hours were not reasonably expended on the

confirmation litigation. Accordingly, 43.1 hours are deducted from the total hours expended by Mr.

Colquitt. Alberti, 896 F.2d at 933-34. 
- 13 -

c. Unreasonable, Excessive, and Duplicative Entries

Respondent also objects that many of Petitioners’ entries are unreasonable, excessive, or

duplicative. 

Respondent objects to Petitioners’ request for non-attorney work performed by attorneys.

On April 26, 2005, Mr. Colquitt billed 1.8 hours to review a returned package for attempted service

and to investigate the location of an agent for service. (Resp. at 17; Mot. App. at 37). Mr. Colquitt

also billed 0.2 hours on September 30, 2005, to review a file-stamp notice of appeal. (Resp. at 18;

Mot. App. at 43). Mr. Boyce requested 2 hours for work he performed on July 28, 2006, to prepare

a table of contents and an index of authorities. (Resp. at 21; Mot. App. at 53). None of these tasks

required the involvement of an attorney, and Petitioners present no argument for why senior partners

should be compensated at their customary rate for non-attorney work. See Johnson, 488 F.2d at 717

(administrative work performed by attorneys may command a lesser rate). Since Petitioners did not

meet their burden to provide evidence of a reasonable rate for non-attorney work, (see Mot. App.

at 32-35, 66-68), these 4 hours are eliminated from the fee request. 

Respondent next objects to the 77.9 hours Mr. Colquitt spent on issues related to the

appellate brief and oral argument because it was Mr. Boyce who drafted the appellate brief and

presented oral argument to the Fifth Circuit. (Resp. at 20-21; see Mot. App. at 49-50, 53, 56).

Respondent contends that given Mr. Boyce’s experience in appellate matters, the hours requested

by Mr. Colquitt are duplicative and should be stricken. The Court recognizes the benefits of

collaboration between two attorneys on a complex issue; one attorney may be more skilled in

researching and preparing a portion of the brief and oral argument than the other. However, given

Mr. Boyce’s experience in appellate matters (as evidenced by his hourly rate) it is not apparent that
6

The 153.6 hours is the sum of the 128.6 hours for the fee application prior to September 1, 2007, and the

25 hours thereafter. See Mot. App. at 35, 59, 62-63.

- 14 -

the 77.9 hours of assistance Mr. Colquitt provided were reasonably expended. Petitioners did not

write off any of these hours, and the Court finds that the request is unreasonable. The Court

therefore reduces Mr. Colquitt’s request for 77.9 hours performed on appellate matters by half to

38.95 hours. 

Respondent also objects to Petitioners’ request for 2.5 hours to obtain a consensual extension

of time to file a brief and 13.9 hours to prepare a final judgment confirming the arbitration award.

(Resp. at 20, 23; Mot. App. at 49). The request for these 16.4 hours is excessive given the

consensual nature of the request for extension and the fact that the one page final judgment by the

District Court required no action by counsel. The failure to reduce these two requests for simple

matters demonstrates a lack of good billing judgment. See Hensley, 461 U.S. at 433; see also

Alberti, 896 F.2d at 930 (“Ideally, billing judgment is reflected in the fee application, showing not

only hours claimed, but hours written off”); Scribner v. Waffle House, Inc., 1997 WL 446453, at *2

(N.D. Tex. July 28, 1997) (“Because there is no record that the Plaintiff exercised billing judgment,

Plaintiffs are ordered to resubmit its hourly billing report to include evidence that they in fact

exercised billing judgment.”). Accordingly, the Court reduces the request for these two tasks from

16.4 hours to two hours.

Respondent also contends that Mr. Colquitt expended an excessive amount of time

researching and drafting briefs related to the motion to vacate as well as the motion for fees. (Resp.

at 17-18, 23). Petitioners request approximately 250 hours related to the motion to vacate and

approximately 153.6 hours related to the motion for fees.6

 Id. Respondent contends that neither of

these motions was so complex as to require the amount of time expended. A review of the pleadings
- 15 -

finds that Petitioners were required to address a number of complex issues, such as vacatur in a

parallel court proceeding and whether Article 22(D) of the arbitration provision encompassed fees

for work performed in the 5th Circuit and West Virginia courts. The Court notes, however, that

there is no indication that Petitioners wrote off any excessive, redundant, or unproductive hours that

might have been part of the hours at issue. See Scribner, 1997 WL 446453, at *2. The Court

therefore reduces the hours requested by ten percent to 225 hours for the motion to vacate and

138.24 hours for the fee application. 

d. Travel Time

Respondent next objects to how Petitioners billed their travel time to New Orleans for

argument before the Fifth Circuit. (Resp. at 22). “Time spent for travel should not be billed at the

same hourly rate sought for active legal work.” Hopwood v. State of Texas, 999 F. Supp. 872, 914

(W.D. Tex. 1998), rev’d on other grounds 236 F.3d 256 (5th Cir. 2000). Mr. Boyce billed a total

of 14 hours for his travel, preparation, and participation related to oral argument. His entries on

February 4 and 5, 2007, fail to segregate between travel time and active legal work. (See Mot. App.

at 57). Since the Court cannot distinguish between travel time and active legal work and since travel

time should be billed at a lower hourly rate, the Court reduces the 14 hours requested by Mr. Boyce

by fifty percent to seven hours. Hopwood, 999 F.Supp. at 914 (citing Watkins v. Fordice, 7 F.3d

453, 459 (5th Cir. 1993) (affirming the district court’s decision to completely disallow compensation

for travel time)); Rappaport, 2000 WL 769224, at *4.

Mr. Colquitt billed 8.5 hours for travel to oral argument, but he did not participate in oral

argument. He has therefore not met his burden to show that these 8.5 hours were reasonable, and

they will be deducted from the amount of time he claimed.
- 16 -

e. Vagueness

Respondent objects to the specificity of Mr. Boyce’s entries and contends that they are too

vague to describe the actual work performed on file. (Resp. at 19, 22). The majority of Mr. Boyce’s

entries are very brief descriptions of the work performed, such as “draft appellants brief, “reply

brief,” “edit reply brief,” and “oral argument preparation.” (See e.g., Mot. App. at 49, 53). The

Fifth Circuit has found that these entries, as a general rule, are too vague to sufficiently describe the

work performed on litigation. See League of United Latin Am. Citizens No. 4552 (LULAC) v.

Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1236 (5th Cir. 1997) (disapproving of “research and review

of cases” and noting that a complete entry would show “the date, the number of hours spent

(calculated to the tenth of an hour), and a short but thorough description of the services rendered”)

(emphasis added); see also Hopwood, 999 F. Supp. at 916 n.93 (finding that “REVIEW AND

REVISE BRIEF,” and “LEGAL RESEARCH RE 5TH CIRCUIT ISSUES,” were “too vague and

brief to inform the Court precisely what work was done”)). Since the Court cannot accurately assess

the reasonableness of the work performed by Mr. Boyce, and since Mr. Boyce did not comply with

the instructions this Court issued in its September 1, 2007, order, the Court finds that a twenty

percent reduction in all hours billed by Mr. Boyce is appropriate. Wegner v. Standard Ins. Co., 129

F.3d 814, 822 (5th Cir. 1997) (“Litigants clearly ‘take their chances’ that the district court will reject

or reduce fee awards if they submit vague or incomplete applications”).

To summarize, the hours awarded to Mr. Colquitt and Mr. Boyce are as follows:
7

This sum includes: (1) the 153.6 hours Petitioners spent on the fee application; (2) the 25 hours deducted

from the motion to vacate (10% of the 250 hours requested); and (3) 106.95 hours in other deductions (43.1 + 2 +

38.95 + 14.4 + 8.5). 

- 17 -

requested deducted overall

reduction

awarded

Mr. Colquitt 609.9 285.557 none 324.35

Mr. Colquitt 

(fee application)

153.6 none 10% 138.24

Mr. Boyce 162.05 9 20% 122.44

2. Reasonable Hourly Rates

Petitioners assert that the hourly rate of $325 is reasonable for Mr. Colquitt. They further

assert that the hourly rate of $475 prior to January 1, 2007, and $530 thereafter is reasonable for Mr.

Boyce. In support of these assertions, they present affidavits by their counsel attesting to their

qualifications, experience, reputation, and ability. (See Mot. App. at 32-35, 66-68). 

a. Rates Charged by Petitioners

Mr. Colquitt’s rate of $325 per hour is a reasonable rate in the Dallas legal community for

legal services by attorneys with the level of ability, competence, twenty-five years of experience,

and skill of Mr. Colquitt in the field of insurance coverage and post-arbitration confirmation

litigation. Mr. Boyce’s rate of $475 per hour is a reasonable rate in the Dallas legal community for

legal services by attorneys with the level of ability, competence, twenty years of experience, and

skill of Mr. Boyce in the field of civil appellate law. The Court, however, does not consider Mr.

Boyce’s fee of $530 for work performed after January 1, 2007, to be reasonable because petitioners

offer no explanation for the $55 per hour increase. (See Mot. App. at 67). The Court therefore
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limits all work performed by Mr. Boyce to a rate of $475 per hour. In assessing the reasonableness

of Petitioners’ rates, the Court considered the affidavits of Mr. Colquitt and Mr. Boyce submitted

in support of the fee application. The Court further makes its determination based on its knowledge

of rates charged for legal services by attorneys with the level of skill, competence, and ability of

Petitioners’ counsel in the Dallas legal community, and its experience in setting attorney’s fees in

other cases. 

b. Failure to Use Associate Attorneys

Respondent contends that it was unreasonable for Petitioners to bill at a partner rate for work

that could have been performed by an associate attorney. (Resp. at 16-23). Respondent raises

specific objections to the 291.6 hours Petitioners spent on legal research, analyzing case law, and

drafting briefs on various days. (Resp. at 16, 18, 23) (objecting to 103, 150, and 38.6 hours,

respectively). 

Two of the factors a court must consider in whether a rate is reasonable are the skill required

to perform the legal services properly and the experience, reputation, and ability of the attorneys.

Johnson, 488 F.2d at 717-19. Here, Respondent contends that an associate who charges a lower rate

could have achieved the same result as the partner did in the 291.6 hours Petitioners billed for their

services. The assumption underlying this argument is that a less experienced and cheaper associate

attorney could achieve the same result as the more experienced but more expensive partner who

performed the task at hand. Even assuming that this same work could have been performed by an

associate at a lower fee, a less-experienced associate would presumably spend more hours on the

task at hand. It is therefore not apparent that any meaningful reduction on the total amount would

be achieved. Without such a showing, the Court declines to adjust the hourly rate for the work
8

While the Fifth Circuit has yet to address this issue, a number of courts in this circuit have found that the

cost of reasonable computerized legal research is recoverable as attorney’s fees. Camargo v. Trammell Crow

Interest Co., 318 F.Supp.2d 448, 451 (E.D. Tex. 2004) (citations omitted); Javelin Investments, LLC v. McGinnis,

2007 WL 1003856, at *4 (S.D. Tex. Mar. 30, 2007) (charges for computer-aided legal research is arguably

recoverable as attorney’s fees but declining to award them to defendant because plaintiff objected and because it was

unclear that the charges were paid by the law firm to the third-party provider). 

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performed on these 291.6 hours due to the relative efficiency gained by assigning the task to a

partner.

Respondent also raises general objections to the work Petitioners performed by partners

instead of associates between November 2005 and October 17, 2006. (Resp. at 19, 21, 23). Since

these assertions are conclusory, they will not be considered by the Court. 

c. Rate for Fee Application

Respondent objects to Mr. Colquitt’s use of his normal rate of $325 per hour for time spent

seeking reimbursement of fees. (Resp. at 23). An attorney should not command his normal rate for

work spent on computing and enforcing attorney’s fees. Hopwood, 999 F.Supp. at 918 (citing Leroy

v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990)). The Court therefore finds that a rate of

$275 for the time Mr. Colquitt spent on the fee application is appropriate. See id. 

3. Computer-based Legal Research

Petitioners request $29,238.70 for computer-based legal research charges as part of their

attorney’s fees. (Mot. at 13, n. 1). Respondent raises no objection to this amount, and the Court

therefore grants the request.8

4. Lodestar

After consideration of Respondent’s objections and making appropriate reductions to

requested hours, the Court calculates the lodestar as follows:
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awarded rate lodestar

Mr. Colquitt 324.35 $ 325 $ 105,413.75

Mr. Colquitt (fee application) 138.24 $ 275 $ 38,016

Mr. Boyce 122.44 $ 475 $ 58,159

Computer-based legal research $ 29,238.70

TOTAL $ 230,827.45

The Court thus finds that a reasonable number of hours times a reasonable hourly rate yields a

lodestar of $230,827.45. 

C. Adjustments to Lodestar Calculation

In the second step of the lodestar method, the Court must consider whether the lodestar

figure should be adjusted upward or downward. Riley, 99 F.3d at 760. The Court has considered

each of the Johnson factors in determining what constitutes reasonable attorney’s fees in this action

and applied them where appropriate. Many of the Johnson factors usually are subsumed within the

initial calculation of hours reasonably expended at a reasonable hourly rate and should therefore not

be double-counted. Jason D.W., 158 F.3d at 210. Moreover, some factors deserve more weight than

others. Id. As noted above, the Supreme Court has held that “the most critical factor” in

determining reasonableness of an attorney’s fee award “is the degree of success obtained.” Hensley,

461 U.S. at 436; Migis, 135 F.3d at 1047.

Neither party presented an argument for an enhancement or reduction of the fee award, and

the Court finds that no further adjustment to the fee award is warranted.

V. COSTS

A prevailing party in a civil action is entitled to recover its costs “unless the court otherwise
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directs.” Fed. R. Civ. P. 54(d). Taxable costs include: (1) fees paid to the clerk and marshal; (2)

court reporter fees for all or part of a deposition transcript; (3) witness fees and related expenses;

(4) printing costs; and (5) fees for copies of papers necessarily obtained for use in the case. See 28

U.S.C. §§ 1821, 1920. A district court may decline to award statutory costs but may not award costs

omitted from the statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987);

Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir.1993).

Petitioners seek $5,873.02 in taxable costs and nontaxable expenses. (Mot. at 13). This

request is supported by the itemized billing records for recoverable costs. (See Mot. App.).

Respondent raises no objections to the costs sought by Petitioners, and Petitioner’s request should

therefore be granted.

VI. CONCLUSION

For the reasons stated above, the Court recommends that Petitioners’ Fee Application should

be GRANTED in part. Petitioners should recover the amount of $230,827.45 as reasonable

attorney’s fees. The amount of awarded costs should be $5,873.02. The total awarded for attorney’s

fees and costs on Petitioners’ Fee Application should be $236,700.47. 

SO RECOMMENDED on this 25th day of February, 2008.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE