IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NATURES WAY MARINE, LLC, )

)

)

)

)

)

)

)

)

)

)

Plaintiff,

vs. CIVIL ACTION NO. 12-316-CG-M

EVERCLEAR OF OHIO, LTD., 

and NIRK MAGNATE HOLDING 

CORP.,

Defendants.

ORDER

Natures Way Marine, LLC (“Natures Way”) filed a motion for prejudgment interest, attorneys’ fees, and litigation expenses. (Doc. 212, Exhs. 1 

– 4). Everclear of Ohio, Ltd. (“Everclear”) and Nirk Magnate Holding Corp. 

(“Nirk Magnate”) (together, “Defendants”) filed a response in opposition. 

(Doc. 213). Natures Way then filed a reply (Doc. 223, Exhs. 1 – 2),1 and 

Defendants responded. (Doc. 224). The motion is now ripe for disposition. For 

the reasons explained below, the Court finds that Natures Way’s motion for 

prejudgment interest, attorneys’ fees, and litigation expenses should be 

GRANTED IN PART and DENIED IN PART.

I. Background

 1 Natures Way filed two replies. (Docs. 214, 216, 219, 221, 223). The 

Court allowed Natures Way to file a second reply after it filed its first reply in 

error. The Court then gave Defendants an opportunity to respond to the 

corrected, second reply. (Doc. 222). 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 1 of 24
2

Natures Way initiated this breach of contract action. Natures Way 

brought the case in diversity jurisdiction, though the parties agreed general 

maritime law governs the contract. (Doc. 1, p. 2; Exh. 1, p. 2). The complaint 

sought three forms of compensation based on Defendants’ breach: 1) invoiced 

debt, 2) lost profits, and 3) attorneys’ fees and expenses. (Doc. 1, pp. 3 – 5). 

Defendants answered and asserted breach of contract counterclaims against 

Natures Way. (Docs. 23, 53). The contract underlying the case includes a 

default provision, which reads:

Default: In the event that either party hereto violates or 

breaches the terms of this Charter and the other party hereto 

engages legal counsel for purposes of enforcing its rights and 

remedies hereunder or otherwise protecting its interests in 

connection with this Charter, said nondefaulting party, in 

addition to all other relief to which it may be entitled, shall also 

be entitled, in the event of [sic] it prevails against the breaching 

party, to recover all of the costs and expenses it incurs in 

enforcing this Charter and protecting its interests, including its 

reasonable attorneys’ fees and expenses. (Doc. 1, Exh. 1, p. 1). 

The parties tried this case before a jury in November 2014. (Doc. 209). 

The trial lasted six days. (Doc. 209). During the trial, Natures Way presented

its breach of contract claim,2 and Defendants presented their breach of 

contract counterclaims. The jury found in favor of Natures Way on its claim 

for invoiced debt, and awarded it $205,512.00. (Doc. 209, Exh. 1, p. 3). The 

jury did not find that Defendants proved their affirmative defenses to 

overcome Natures Way’s breach of contract claim. (Doc. 209, Exh. 1, p. 2). 

 2 The Court granted Defendants’ motion in limine to exclude evidence of 

the alleged lost profits and outside towing damages. (Doc. 210, p. 3). Thus the 

jury did not award Natures Way any damages for its lost profits claim.

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 2 of 24
3

The jury also found Defendants proved two of their breach of contract 

counterclaims, but decided Natures Way proved its affirmative defense of 

waiver to overcome Defendants’ counterclaims.3 (Doc. 209, Exh. 1, pp. 3 – 4). 

As a result, the jury did not award Defendants any compensatory damages. 

(Doc. 209, Exh. 1, p. 4). 

Natures Way now seeks post-trial recovery of attorney’s fees, expenses, 

and prejudgment interest. In its initial post-trial motion, Natures Way 

claimed it is entitled to recover $226,286.26, consisting of prejudgment 

interest in the amount of $43,465.78, attorneys’ fees and expenses in the 

amount of $148,727.33, and expert fees in the amount of $34,093.15. (Doc 

212, pp. 2 – 4). In their first response, Defendants argue 1) Natures Way is 

not entitled to recover fees and expenses because it is not a “nondefaulting 

party” under the terms of the contract, (Doc. 213, p. 4), 2) Natures Way has 

not established that the requested attorneys’ fees are reasonable, (Doc. 213, 

pp. 9 – 18), 3) Natures Way is not entitled to recover its expert fees because 

the Court excluded the expert witnesses, (Doc. 213, pp. 18 – 20), 4) Natures 

Way should not be awarded prejudgment interest because of the peculiar 

facts presented in this case, and Natures Way cites the incorrect prejudgment 

interest statute, (Doc. 213, pp. 21 – 25), and 5) the Court should not award 

 3 A waiver occurs when there is an intentional relinquishment of a 

known right. Edwards v. Allied Home Mortg. Capital Corp., 962 So. 2d 194, 

208 (Ala. 2007).

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 3 of 24
4

Natures Way expenses or costs because it did not provide the required 

documentation for such an award. (Doc. 213, p. 26). 

In its reply, Natures Way reduced the amount of its request to 

$214,704.61 to address some of the issues Defendants raised in their 

response. (Doc. 223, Exh. 1, p. 3; Doc. 224, p. 2). Natures Way acknowledged 

it used the incorrect interest rate for its prejudgment interest calculation 

(Doc. 223, p. 15), and included a few incorrect time entries in its earlier 

motion. (Doc. 223, Exh. 1, p. 3). Defendants maintain Natures Way is not 

entitled to attorneys’ fees, and raise an additional argument in their second 

response concerning attorneys’ fees for work performed by an attorney who is 

not licensed to practice in Alabama or admitted in this district. (Doc. 224, p. 

12). The arguments raised in the motion, responses, and replies are 

addressed below. 

II. DISCUSSION

A. Natures Way is the Prevailing Party

A “prevailing party” is a party in whose favor a judgment is entered. 

Buckhannon Bd. & Care Home, Inc. v. W. Va Dep’t of Health & Human Res., 

532 U.S. 598, 603 (2001), superseded by statute 5 U.S.C. § 552(a)(4)(E)(ii), 

Open Government Act of 2007, Pub.L. 110–175,121 Stat. 2524 (2007), as 

recognized in Warren v. Colvin, 744 F.3d 841, 845 (2d Cir. 2014) (further 

expanding definition of prevailing party as it pertains to Freedom of 

Information Act actions). Even an award of nominal damages suffices under 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 4 of 24
5

this test. See Farrar v. Hobby, 506 U.S. 103 (1992);4 see also Hanrahan v. 

Hampton, 446 U.S. 754, 757 (1980) (prevailing party must establish its 

entitlement to some relief on the merits of its claims, either in the trial court 

or on appeal). Here, Natures Way prevailed at trial when the jury awarded it 

$205,512 for its breach of contract claim, and found Natures Way proved its 

affirmative defense of waiver.

“The prevailing party in an admiralty case is not entitled to recover its 

attorneys’ fees as a matter of course.” Natco Ltd. P’ship v. Moran Towing of 

Fla., Inc., 267 F.3d 1190, 1193 (11th Cir. 2001) (citing Noritake Co., Inc. v. 

M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir. 1980)). Generally, the 

“American Rule” requires each party to pay its own attorney’s fees. Smith v. 

GTE Corp., 236 F.3d 1292, 1305 (11th Cir. 2001) (citing Ex Parte Horn, 718 

So. 2d 694, 702 (Ala. 1998)). There are exceptions to the general rule 

precluding recovery of attorneys’ fees. Attorneys’ fees may be awarded to the 

prevailing party in maritime cases if: “(1) they are provided by the statute 

governing the claim, (2) the nonprevailing party acted in bad faith in the 

course of the litigation, or (3) there is a contract providing for the 

indemnification of attorneys’ fees.” Natco, 267 F.3d at 1193; see also Coastal 

Fuels Mktg., Inc. v. Fla. Express Shipping Co., 207 F.3d 1247, 1250 (11th Cir. 

 4 However, in some circumstances such a “prevailing party” should still 

not receive an award of attorney’s fees. See Farrar v. Hobby, at 115–16.

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 5 of 24
6

2000) (“A party is not entitled to attorney’s fees in an admiralty case unless 

fees are statutorily or contractually authorized.”) (citation omitted).

In this case, a contract provision awards attorneys’ fees to the 

nondefaulting party that prevails against the breaching party. (Doc. 1, Exh. 

1, p. 1). Thus the issue is whether Natures Way is entitled to attorneys’ fees 

as a “nondefaulting” party that “prevailed” at trial. Natures Way argues it 

should receive attorneys’ fees because it is the prevailing party, exemplified 

by the jury verdict awarding it damages for its claim. (Doc. 223, pp. 4 – 5). 

Defendants rebut this position and argue Natures Way is not entitled to 

recover attorneys’ fees because it is also a defaulting party. “As noted in the 

verdict, the jury specifically found that Natures Way breached the Charter 

Agreement by (1) ‘failing to timely deliver barges to East Liverpool for the 

first shipment of recycled fuel oil,’ and (2) ‘failing to complete the round-trip 

between East Liverpool and Avondale within 26 to 28 days, as necessary for 

Natures Way to make the twelve (12) monthly round trips required by the 

Charter Agreement, within the one year term of the agreement.’” (Doc. 213, 

pp. 6 – 7). Defendants cite a Delaware case to support their argument that 

Natures Way is a defaulting party that is not entitled to attorneys’ fees under 

the default provision found in the contract. (Doc. 213, p. 7, citing Dittrick v. 

Chalfant, CIV.A. 2156-S, 2007 WL 1378346, (Del. Ch. May 8, 2007)). 

Defendants also point to Jet Sales of Stuart, LLC v. Jet Connection Travel, 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 6 of 24
7

GMBH, 240 Fed. App’x 839 (11th Cir. 2007) for this proposition. (Doc. 224, 

pp. 6 – 9). 

Whether a contract is ambiguous is a question of law for the trial 

court. Mega Life & Health Ins. Co. v. Pieniozek, 516 F.3d 985, 991 (11th Cir. 

2008) (citation omitted). A court interpreting a contract should give the words 

of the contract their plain and ordinary meaning. Id. Additionally, “[t]he 

traditional rule of construction in admiralty cases is to construe the contract

language most strongly against the drafter....” Edward Leasing Corp. v. 

Uhlig & Assocs., Inc., 785 F.2d 877, 889 (11th Cir. 1986) (citations and 

quotations omitted).

In this case, the default provision includes the word “nondefaulting,” 

which could suggest Natures Way should not receive attorneys’ fees because 

the jury found Natures Way breached the contract, and thus “defaulted.” But 

the jury verdict must be read as a whole. The jury decided Natures Way 

proved its affirmative defense of waiver. The affirmative defense of waiver 

means Defendants excused Natures Way’s otherwise wrongful actions, and 

wanted Natures Way to continue to perform its part of the bargain. As a 

result, the Court does not find Defendants’ argument on this point 

persuasive. Natures Way prevailed on its breach of contract claim and on its 

affirmative defense. 

Similarly, the default provision in the contract must be read as a 

whole. The provision states the “nondefaulting party... shall also be entitled, 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 7 of 24
8

in the event of [sic] it prevails against the breaching party, to recover all costs 

and expenses ... including its reasonable attorneys’ fees and expenses.” (Doc. 

1, Exh. 1, p. 1). Giving the words of the contract their plain and ordinary 

meaning, the default provision provides that the party that prevails against 

the breaching party is entitled to recover its reasonable attorneys’ fees and 

expenses. (Doc. 1, Exh. 1, p. 1). The mere use of the word “nondefaulting” 

does not change the entire meaning of this provision. 

Additionally, Jet Sales and Dittrick are distinguishable from this case. 

First, the contract language in each case varies – albeit slightly. See Jet 

Sales, 240 Fed. App’x at 841; Dittrick, 2007 WL 1378346 at *1;. Second, as 

the Dittrick court observes, it is possible for a party to a contract to 

materially perform, and thus even if it technically “defaults” it could 

theoretically meet its contractual obligations. 2007 WL 1378346 at *2 (“The 

contractual discussion of a ‘defaulting party’ and ‘nondefaulting’ party 

necessarily contemplates exactly what it says – that attorneys’ fees are only 

available if one party has not fully (or, at least, not materially) met its 

obligations, while the other has.”). Finally, in both cases, the courts did not 

find one party prevailed over the other. Rather, the cases were essentially a 

draw. Jet Sales, 240 Fed. App’x at 841 (“Per the Court’s findings, there was 

no ‘Defaulting Party.’”); Dittrick, 2007 WL 1378346 at *2 (finding one party 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 8 of 24
9

“no more in default” than the other for non-performance).5 Here, the jury 

awarded Natures Way compensation for its invoiced debt claim, and 

concluded Defendants waived their breach of contract claims. As the 

prevailing party, Natures Way is entitled to its reasonable attorneys’ fees 

under the terms of the contract. 

B. Reasonable Attorneys’ Fees

Generally, the determination of reasonable attorneys’ fees begins with 

a determination of the reasonable hourly rate multiplied by the “hours 

reasonably expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th 

Cir. 2008). “The product of these two figures is the lodestar and there is a 

strong presumption that the lodestar is the reasonable sum the attorneys 

deserve.” Id. (internal citations and quotation omitted). When making this 

“lodestar” determination, the Court may consider the twelve factors identified 

in Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552–53 (Ala. 2004) (quoting 

 5 Furthermore, where an action involves a counterclaim, the party that 

obtains the net judgment is generally considered the “prevailing party” for 

purposes of awarding attorneys’ fees. See Coastal Fuels Mktg., Inc. 207 F.3d 

at 1251 (discussing attorneys’ fees and whether the contractual provision 

which provides for attorneys’ fees should be construed to allow the party that 

was successful on all but one minor issue to recover fees). A court may refuse 

to award attorneys’ fees where a contractual provision grants attorneys’ fees 

to the prevailing party if both parties breached the terms of the agreement, 

but it is not obligated to do so. See, e.g., Walton Gen. Contractors, Inc./Malco 

Steel, Inc. v. Chicago Forming, Inc., 111 F.3d 1376, 1384 – 85 (8th Cir. 1997) 

(affirming district court ruling that denied attorneys’ fees because jury found 

both parties breached the subcontract, and awarded damages to each at 

trial).

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 9 of 24
10

Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)). These 

factors are: 

(1) the time and labor required; (2) the novelty and difficulty of 

the questions; (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 in the 

community; (6) whether the fee is fixed or contingent; (7) time 

limitations imposed by the client or circumstances; (8) the 

amount involved and the results 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. Id.

After the lodestar is determined by multiplication of a reasonable 

hourly rate times hours reasonably expended, the court must next consider 

the necessity of an adjustment for results obtained. If the party achieved an 

excellent result, then the court should compensate for all hours reasonably 

expended. Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). 

If the party achieved limited success, then the court may reduce the amount 

of fees that is reasonable in relation to the results obtained. Hensley v. 

Eckerhart, 461 U.S. 424, 436–37 (1983). In doing so, the court may attempt to 

identify specific hours spent in unsuccessful claims, or it may simply reduce 

the award by some proportion. Id.

Natures Way has the burden of supplying the court with sufficient 

evidence from which the court can determine the reasonable hourly rate for 

the attorneys and staff who worked on the litigation. Norman v. Hous. Auth. 

of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable 

hourly rate is often “the prevailing market rate in the relevant legal 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 10 of 24
11

community for similar services by lawyers of reasonably comparable skills, 

experience, and reputation.” Garrett Investments, LLC v. SE Prop. Holdings, 

LLC, 956 F. Supp. 2d 1330, 1339 (S.D. Ala. 2013). In that regard, 

“[s]atisfactory evidence at a minimum is more than the affidavit of the 

attorney performing the work.” Norman, 836 F.2d at 1299 (citation omitted).

When reviewing attorneys’ fees, the court may rely upon its own “knowledge 

and experience” to form an “independent judgment” as to a reasonable hourly 

rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing 

Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp. 

2d at 1340 – 41 (compiling market rates for attorneys with varied amounts of 

experience).

Here, Natures Way relies upon the affidavits of two attorneys, Mr. 

Frank Dantone and Mr. Edward Lamar, who performed work on its behalf to 

support its claim for attorneys’ fees. (Doc. 212, Exh. 3; Doc. 223, Exhs. 1 – 2). 

Mr. Dantone’s affidavit states that he is an admiralty lawyer with more than 

35 years experience. (Doc. 212, Exh. 3, p. 2). The affidavit does not address 

whether the rates charged, specifically $195 per hour, are in accord with the 

prevailing market rates in the Southern District of Alabama. Rather he 

states his rates are “reasonable and customary for the services” provided. 

(Doc. 223, Exh. 1, p. 3). Relying on its own knowledge and experience, the 

Court finds that in this district an hourly rate of $195 is reasonable for an 

attorney with more than 35 years experience. Thus after reviewing the 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 11 of 24
12

motion and exhibits, the Court finds that an appropriate, reasonable rate for 

Mr. Dantone is $195 per hour. 

In its initial motion for attorneys’ fees, Natures Way included invoices 

for three timekeepers (“LBH”, “NRJ”, and “EDL”) that were not named or 

otherwise identified as assistants, paralegals, or attorneys. (Doc. 212, Exh. 2). 

Natures Way subsequently identified “EDL” as Edward Lamar in its 

response. (Doc. 223, p. 11; Exh. 2). Mr. Lamar submitted an affidavit 

explaining that he is a licensed maritime attorney in Mississippi with more 

than 33 years experience. (Doc. 223; Exh. 2). Mr. Lamar also charges $195 

per hour. (Doc. 223, Exh. 2, pp. 2 – 3). Mr. Lamar further states he spent 

123.2 hours working on this case, compared to the 502.8 hours billed by Mr. 

Dantone.6 As Defendants note, however, Mr. Lamar is not admitted in 

Alabama, nor did he file a motion to appear pro hac vice.7 (Doc. 224, p. 12);

LOCAL RULE 83.5; cf. Martin & Martin v. Jones, 541 So. 2d 1, 1 (Ala. 1989) 

(“[A]n unlicensed attorney should be estopped from enforcing a contract to 

provide legal services.”).8 Based on his extensive time entries and his in-

 6 In contrast, Mr. Danton’s affidavit states he worked 506.90 hours on 

this case, and Mr. Lamar worked 125.10 hours. (Doc. 223, Exh. 1, p. 3). The 

Court is using the smaller figures. 

7 Mr. Dantone filed a motion to appear pro hac vice, which the Court 

granted. (Docs. 2, 7). 

8 Although not binding in this circuit, the Court finds the reasoning of 

other circuits helpful on this point. The Ninth Circuit has held that an out-ofstate attorney can recover fees for work so long as the attorney (1) was 

eligible to be admitted pro hac vice as a matter of course, or (2) did not 

“appear” before the court. Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 

815, 822–23 (9th Cir. 2009). In Winterrowd, the out-of-state attorney’s role 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 12 of 24
13

person appearance, the Court concludes Mr. Lamar actively participated in 

this case and appeared before this Court without proper admittance. Thus 

after reviewing Mr. Lamar’s time entries, the Court, in its discretion, 

reduces his billable time by 50%. The Court finds that an appropriate, 

reasonable rate for Mr. Lamar is $195 per hour, and he can recover only for 

61.6 hours billed. 

The Court is not obligated to research the names and qualifications of 

the two remaining timekeepers for the benefit of the fee applicant. Mr. 

Dantone’s revised affidavit alleviates some of the problem by stating he 

“deleted 19.6 hours . . . from the statements of Henderson Dantone, P.A. for 

the time of our firms [associates], and for time which was mistakenly charged 

this litigation by our staff.” (Doc. 223, Exh. 1, p. 3). Regardless of the time 

entries removed, the Court finds that an appropriate, reasonable rate for the 

unidentified timekeepers (“LBH” and “NRJ”) is $0.00 per hour. 

 

was limited to “advising [California lead counsel],” “reviewing pleadings,” and 

“minimal, nonexclusive contact with the client.” Id. 556 F.3d at 823–24.

Similarly, courts in the Third Circuit examine whether an out-of-state 

attorney plays a “consulting role” or “actively participates” in the case. See

Bilazzo v. Portfolio Recovery Assoc., 876 F. Supp. 2d 452 (D. N.J. 2012). 

Other courts have also mulled over this question, deciding “[t]he court 

believes that it possesses the authority to reduce the fees sought by attorneys 

who are found to be practicing law in this district without being licensed.” 

Mortenson v. Barnhart, No. CA 2:07-1621-JFA, 2009 WL 4267218, at *3 

(D.S.C. Nov. 24, 2009) aff’d in part sub nom. Mortensen v. Astrue, 428 Fed. 

App’x 248 (4th Cir. 2011) and aff’d in part, vacated in part sub nom. Priestley 

v. Astrue, 651 F.3d 410 (4th Cir. 2011).

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 13 of 24
14

Natures Way also has the burden of establishing reasonable hours. Lee 

v. Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013). Reasonable hours 

are established through billing statements or invoices that state with 

sufficient particularity the nature of the work performed and by whom so the 

court may determine the reasonableness of the time expended. And if fee 

applicants do not exercise billing judgment, courts are obligated to do it for 

them, to cut the amount of hours for which payment is sought, pruning out 

those that are excessive, redundant, or otherwise unnecessary. Norman, 836 

F.2d at 1301. “Courts are not authorized to be generous with the money of 

others.” ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). 

As aforementioned, the invoices submitted for the two unnamed 

timekeepers are not sufficient. Thus any fees for the unidentified timekeepers 

are not recoverable. Additionally, there are time entries included on the 

invoices that do not appear related to this lawsuit because they name other 

parties and legal issues that are not part of this case. (Doc. 212, Exh. 2, pp. 7, 

14 – 15). Natures Way’s reply addresses some of these errors, but it did not 

identify exactly which time entries it deleted. (Doc. 223, Exh. 1, p. 3). To be 

sure, these unrelated fees are not recoverable. The remaining attorneys’ fees 

are reviewed to ensure “excessive, redundant or otherwise unnecessary” 

hours are excluded from the amount claimed. Norman, 836 F.2d at 1301.

It is difficult to determine the hours spent on excessive, redundant, or 

unnecessary tasks because the invoices submitted include several charges 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 14 of 24
15

that are inappropriately block billed. (Doc. 212, Exh. 2). For instance, a 

charge in March 2014 bills six hours for an “Office Conference with Chris 

Hume and Fred Helmsing regarding deposition of experts” and “Return to 

Greenville,” without stating which amount of time is attributable to the 

conference or travel.9 (Doc. 212, Exh. 2, p. 19). Another charge on March 7, 

2014 bills eight hours for “Office Conference with clients” and “Return to 

Greenville” and “Telephone Conference with Fred Helmsing and Chris Hume 

regarding deposition of Jorge Mesa.” (Doc. 212, Exh. 2, p. 19). Again, within 

this eight-hour block of time there is no indication of the amount of time 

spent on travel or the time spent on the office conference or telephone 

conference. On August 12, 2014, there is an eight-hour charge for 

“Preparation for final pretrial conference” and “Conference with attorneys” 

and “Attend pretrial conference.” (Doc. 212, Exh. 2, p. 24). The pretrial 

conference took place at 1:00pm that day, and it did not last long. How 

counsel calculated this figure is unclear. There is also an eight hour charge 

simply for “trial prep re: jury instructions” on November 20, 2014. (Doc. 212, 

Exh. 2, p. 29). Because of the block billing issues throughout the invoices, the 

Court finds a 10% reduction in the attorneys’ hours appropriate. See Krystal 

Co., 918 F. Supp. 2d at 1271 (a court faced with unreasonable hours “has two 

choices: it may conduct an hour-by-hour analysis or it may reduce the 

requested hours with an across-the-board cut.”) (citations omitted).

 9 Natures Way elected to hire counsel located in Greenville, Mississippi, 

which is roughly 300 miles from Mobile, Alabama. 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 15 of 24
16

Natures Way provided the Court with two sets of numbers for time 

billed by each of its attorneys. (Doc. 223, Exhs. 1, 2). The Court has elected to 

use the somewhat smaller figures provided in Mr. Lamar’s affidavit. After a 

thorough review of the time sheets submitted for Natures Way and 

considering the twelve factors set forth in Pharmacia Corp., the Court 

concludes Mr. Dantone reasonably worked 502.8 hours taking this case to 

trial. As mentioned above, Mr. Lamar’s recoverable time is limited to 61.6 

hours. Together, this amounts to 564.4 billable hours at the rate of $195 per 

hour. This sum is reduced by 10% to address the block billing issues. The 

lodestar amount for Natures Way is therefore $99,052.20 ($195 multiplied 

by 507.96 hours). 

When a party achieves limited success at trial, the Court may reduce 

the amount of reasonable attorneys’ fees. Hensley, 461 U.S. at 436–37; 

Norman, 836 F.2d at 1301 (stating the district court must deduct time spent 

on discrete or unsuccessful claims) (emphasis added). In this case, Natures 

Way sought $747,000.90 in damages prior to trial, $550,000 of which 

represented its lost net profits. (Doc. 170, Exh. 11, p. 1). Ultimately, Natures 

Way sought only $260,000 in lost profits and $205,512 in invoiced debt. (Doc. 

213, pp. 15 – 16). The jury awarded Natures Way $205,512 for the invoiced 

debt. (Doc. 212, p. 1). Natures Way thus received approximately 30% of the 

damages it sought pre-trial. (Doc. 170, Exh. 11). Put differently, Natures Way 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 16 of 24
17

prevailed on one of its two claims for compensatory damages (claiming 

damages for lost profits and invoiced debt). 

The motion, reply, and corresponding invoices do not attempt to 

identify the amount of time spent on seeking damages for lost profits or 

invoiced debt. (Doc. 212, Exh. 2). The two claims for damages, however, are 

interrelated both factually and legally as against the two Defendants.

Therefore, it is likely Mr. Dantone and Mr. Lamar worked on the claims and 

legal issues involving both Defendants at the same time. 

After scrutinizing the limited success Natures Way obtained at trial, 

the Court finds it appropriate to further reduce Natures Way’s attorneys’

fees.10 Therefore, the Court further reduces the hours worked by 30%, from 

507.96 hours to 355.57 hours. See St. Fleur v. City of Fort Lauderdale, 149 

Fed. App’x 849, 853 (11th Cir. 2005) (“the district court abused no discretion 

in reducing Plaintiff’s total hours claimed by 30 percent”). Natures Way’s 

request for reasonable attorneys fees’ is thus GRANTED and limited to 

$69,336.15 ($195 multiplied by 355.57 hours).

C. Expert Witness Fees

 10 The Court also notes that the fees and expenses initially sought by 

Natures Way are more than the total amount it received at trial, making the 

fees and expenses appear grossly disproportionate. See, e.g., Cragen v. 

Barnhill, 859 F. Supp. 566, 574 (N.D. Fla. 1994) (discussing the gross 

disproportion between the amount of damages sought by plaintiff and that 

which was actually awarded).

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 17 of 24
18

Natures Way seeks $34,093.15 in expert witness fees. Natures Way 

hired Clay Rankin, an attorney, for expert witness services. (Doc. 212, p. 4). 

The Court excluded Mr. Rankin as an expert. (Doc. 178, pp. 6 – 7). Therefore, 

he did not participate in the trial.

An Alabama “trial court does not have the discretion to award fees for 

expert witnesses unless a statute authorizes the recovery of such fees.” Se. 

Envtl. Infrastructure, L.L.C. v. Rivers, 12 So. 3d 32, 52 (Ala. 2008) (internal 

quotations omitted); see also Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 

U.S. 437, 445 (1987) (“We hold that absent explicit statutory or contractual 

authorization for the taxation of the expenses of a litigant’s witness as costs, 

federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 

1920.”). Natures Way has not pointed to a statute supporting an award of 

expert witness fees, nor has it shown how this expert witness fee is “a 

component of otherwise compensable attorneys fees[.]”Se. Envtl. 

Infrastructure, L.L.C., 12 So. 3d at 52. (internal quotations omitted).

Furthermore, Natures Way does not highlight language in the contract 

that supports awarding fees for expert witnesses. Instead, Natures Way 

argues the default provision is “so broad” it must be interpreted to include 

expert witness fees. (Doc. 223, p. 12). The Court, however, must construe the 

language of the contract against Natures Way as the party that drafted it. 

Natco Ltd. P’ship, 267 F.3d at 1194. There is nothing in the contract that 

suggests the parties here contemplated awarding expert witness fees to the 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 18 of 24
19

prevailing party when they negotiated the contract. Therefore, Natures Way’s 

request for expert fees is DENIED.

D. Prejudgment Interest

Absent extraordinary circumstances, prejudgment interest is typically 

awarded in maritime cases. Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. 

Supp. 1553, 1571 (S.D. Ala. 1989) (citation omitted). Natures Way initially 

argued it is entitled to an award of prejudgment interest at the rate of 7.5% 

per year. (Doc. 212, p. 3).11 In its reply, Natures Way corrected the interest 

rate it cited and adjusted it downward to 6% per year. (Doc. 223, pp. 14 – 15).

Regardless of the incorrect citation, the Court determines Natures Way is 

entitled to prejudgment interest. Defendants do not convince this Court that 

peculiar or extraordinary facts exist in this case that preclude an award of 

prejudgment interest. Indeed, the parties simply disagreed about the merit of 

their breach of contract claims. City of Milwaukee v. Cement Div., Nat. 

Gypsum Co., 515 U.S. 189, 198 (1995) (observing “the existence of a 

legitimate difference of opinion on the issue of liability is merely a 

characteristic of most ordinary lawsuits. It is not an extraordinary 

circumstance that can justify denying prejudgment interest.”).

 11 Natures Way reached this number by relying on the interest rate set 

forth in Alabama Code Section 8-8-10. Defendants noted correctly that this is 

the wrong interest rate. (Doc. 213, p. 25, n. 14). Section 8-8-10 controls postjudgment interest. Alabama Code Section 8-8-1 determines prejudgment 

interest. See Burgess Min. & Const. Corp. v. Lees, 440 So. 2d 321, 338 (Ala. 

1983).

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 19 of 24
20

Prejudgment interest awards, however, are not automatic. Id. at 196.

“The essential rationale for awarding prejudgment interest is to ensure that 

an injured party is fully compensated for its loss.” Id. at 195. Additionally, 

[a]dmiralty courts enjoy broad discretion in setting prejudgment interest 

rates.” Gator Marine Serv. Towing, Inc. v. J. Ray McDermott & Co., 651 F.2d 

1096, 1101 (5th Cir. 1981). “In determining the appropriate rate of interest . . 

. , the court is mindful that pre-judgment interest is awarded solely as 

compensation for the harm done.” Anderson v. McAllister Towing & Transp. 

Co., 94 F. Supp. 2d 1273, 1276 (S.D. Ala. 2000); see also Sunderland Marine 

Mut. Ins. Co. v. Weeks Marine Const. Co., 338 F.3d 1276, 1280 (11th Cir. 

2003) (upholding pre-judgment interest based on prime interest rate in 

maritime collision case).

Natures Way cancelled the contract at issue in February 2012 because 

of Defendants’ breach. Since February 2012, interest rates have not reached 

six percent. The Court therefore finds the average Treasury bill rates for the 

period in question provide a more accurate amount of pre-judgment interest 

owed. See Gator Marine Serv. Towing, Inc., 651 F.2d at 1101 (admiralty 

courts may look to the judgment creditor’s actual cost of borrowing money, to 

state law, or to other reasonable guideposts indicating a fair level of 

compensation) (citations omitted). Noting that the average annual interest 

rate on U.S. Treasury bonds from February 2012 until present has been 

3.25%, the Court finds the appropriate prejudgment interest rate that will 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 20 of 24
21

compensate Natures Way is 3.25%. As a result, Natures Way’s request for 

pre-judgment interest is GRANTED and it will accrue annually at 3.25% 

from February 12, 2012 until the date judgment is entered. 

E. Expenses

Although the contract states that the prevailing party is entitled to 

recover its attorneys’ fees, costs, and expenses, the Court must still determine 

that those amounts are reasonable. Head v. Medford, 62 F.3d 351, 354 (11th 

Cir. 1995) (stating that a “party need not prevail on all issues” in order to 

qualify as a prevailing party and receive costs under FED. R. CIV. P. 54).

Natures Way seeks an unspecified amount of expenses and costs. The 

expenses are lumped generally into the claim for $148,727.33, which is “the 

total amount of attorneys’ fees and expenses as invoiced by Henderson 

Dantone, P.A.” (Doc. 212, p. 4). 

In this case, Natures Way failed to provide adequate documentation to 

support their claimed expenses. See Cullens v. Ga. Dep’t of Transp., 29 F.3d 

1489, 1494 (11th Cir. 1994) (disallowing copying costs because the plaintiff 

failed to provide evidence of the documents’ use or intended use). Expenses 

are only alluded to on the invoices submitted by Natures Way. They are not 

summarized, however, nor are they clear. (Doc. 212, Exh. 2; Doc. 224, p. 25). 

Rather, Natures Way relies on the invoices submitted that provide cursory 

descriptions of the expenses, such as “travel” or “Westlaw research.” (Doc. 

212, Exh. 2, p. 20); Krystal Co., 918 F. Supp. 2d at 1275 (charges for Westlaw 

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 21 of 24
22

research are a “thinly-veiled attempt to make an expense of an item of law 

firm overhead,” and such charges are unreasonable). The motion and the 

affidavits submitted do not explain the expenses or argue that the charges

are necessary and reasonable. (Doc. 212, Exh. 3; Doc. 223, Exhs. 1, 2). 

Additionally, “costs” and “expenses” are not synonymous, and the costs in this 

case are not properly identified. See Eagle Ins. Co. v. Johnson, 982 F. Supp. 

1456, 1458 (M.D. Ala. 1997) aff’d sub nom. Eagle Ins. v. Johnson, 162 F.3d 98 

(11th Cir. 1998).

In sum, there is scant evidentiary support in the record for Natures 

Way’s claim that counsel incurred the amount of expenses requested, and 

without adequate documentation describing the legal work for which the 

expenses were incurred; it is impossible to verify reasonableness or necessity. 

In those cases where little or no evidentiary support is provided for the 

expenses requested, as is the case here, courts may reduce or deny the 

expenses. While this Court recognizes that the Eleventh Circuit traditionally 

supports reimbursing expenses, Natures Way still bears the burden of 

submitting a request that will enable a court to determine what expenses 

were incurred and whether they are entitled to them. See, e.g., Barnes, 168 

F.3d at 438 (holding that a district court abused its discretion when it failed 

to exclude unnecessary expenses). The requested expenses are practically 

devoid of any such explanation, and thus, Natures Way did not meet its

burden here. Accordingly, Natures Way’s expenses are DENIED.

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 22 of 24
23

The Eleventh Circuit has stated that a court granting an award of 

attorneys’ fees should provide a summary table detailing its calculation of the 

attorneys’ fees and expenses awarded. See, e.g., Coastal Fuels, 207 F.3d at 

1252; Barnes, 168 F.3d at 439. Accordingly, applying the foregoing 

reductions, this Court provides the following summary table for this case:

Amount Requested Amount Awarded

Attorneys’ 

Fees 

$122,070

(Attorney Dantone $98,046)

(Attorney Lamar $24,024)

$69,336.15

• Fees for unidentified 

timekeepers not 

awarded

• Fees for time worked 

on other cases not 

awarded

• Hours for attorney 

Lamar reduced by 50% 

because he actively 

participated in this 

case and appeared 

before the court 

without proper 

admittance 

• Hours reduced 10% for 

block billing, Lodestar 

= $195 x 507.96 hours

• Hours further reduced 

30% for limited success 

at trial, final sum = 

$195 x 355.57 hours

Expenses* $23,000.00 $0.00

Prejudgment 

Interest

6% per year 3.25% per year 

Expert 

Witness Fees

$34,093.15 $0.00

Total $226,286.26 (initial 

request)

$214,704.61 (revised 

request)

$69,336.15 plus prejudgment 

interest at 3.25% per year

*Approximate lump sum; not itemized as expenses or costs

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 23 of 24
24

III. CONCLUSION

For the reasons stated above, Natures Way’s Motion is GRANTED IN 

PART and DENIED IN PART. (Doc. 212). Natures Way is awarded 

$69,336.15 in attorneys’ fees, and prejudgment interest at an annual interest 

rate of 3.25%. Natures Way is not awarded expert witness fees or expenses. 

DONE and ORDERED this 17th day of April, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

Case 1:12-cv-00316-CG-M Document 225 Filed 04/17/15 Page 24 of 24