Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria

• Court: District Court, District of Columbia
• Decided: November 2, 2017
• Docket: Civil Action No. 2013-1106
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENRON NIGERIA POWER HOLDING, LTD.,

Plaintiff, Case No. 1:13-cv-1106 (CRC)

v.

FEDERAL REPUBLIC OF NIGERIA,

Defendant.

MEMORANDUM OPINION AND ORDER

Petitioner Enron Nigeria Power Holding, Inc. (“ENPH”) previously moved for an award

of attorney’s fees and costs incurred to enforce an International Chamber of Commerce arbitral

award against the Republic of Nigeria. Pl.’s Mot. for Att’y Fees and Nontaxable Expenses. 1

The Court denied ENPH’s initial motion because it had not adequately supported its fee request.

Specifically, the Court found that the billing rates that ENPH proposed for its Houston-based

counsel were based on estimates of Washington, D.C.-area rates and this case has no particular

connection to Washington, D.C. Opinion & Order (filed Aug. 18, 2017) (ECF No. 63). ENPH

has now renewed its fee motions.

As the moving party, ENPH “bears the burden of establishing entitlement to an award,

documenting the appropriate hours, and justifying the reasonableness of the rates” charged. Eley

v. District of Columbia, 793 F.3d 97, 100 (D.C. Ci. 2015) (citation omitted). The Court finds

that ENPH has established that it is entitled to an award under the contract that gave rise to the

1 For further background on the underlying dispute, see the Court’s previous ruling at Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria, 234 F. Supp. 3d 251 (D.D.C. 2015), aff’d, 844 F.3d 281 (D.C. Cir. 2016). underlying dispute, which specified that “[a]ny costs, fees, or taxes incident to enforcing” an

arbitral award “shall be charged against the party resisting enforcement,” Pl.’s Mem. of Law in

Supp. of Mot. for Att’y Fees and Nontaxable Expenses at 6. See, e.g., N.Y. City Dist. Council of

Carpenters Pension Fund v. Dafna Cons. Co., 438 F. Supp. 2d 238, 242 (S.D.N.Y. 2006).

Additionally, Federal Rule of Civil Procedure 54(d) authorizes the Court to award fees to a

prevailing party.

As for justifying the reasonableness of the rates, this time ENPH is armed with affidavits

from two Houston-based practitioners estimating the prevailing rates for relevant commercial

litigation services in that market. Pl.’s Second Mot. for Atty’s Fees and Costs Exs. A (“Stern

Decl.”) & B (“Hoffer Decl.”). Nigeria does not challenge the estimates in the affidavits. The

Court concludes that these two affidavits are sufficient evidence from which to determine a

prevailing market rate for experienced commercial litigators in Houston. After reviewing the

affidavits, the Court believes that the affidavit from Stewart Hoffer is more appropriate to base a

rate on, since Mr. Hoffer has previously provided expert testimony on fees, bases his estimate on

a reliable methodology (court established criteria and a Texas Lawyer survey), and provides

analysis that applies to commercial litigators generally as opposed to those who practice at large,

national law firms. See generally Hoffer Decl.

In addition, ENPH’s counsel, Kenneth Barrett, has established that he has the requisite

educational and practice experience to command market rates. See Pl.’s Mem. Law Support

Mot. for Att’y Fees Ex. A (“Barrett Decl.”) ¶¶ 5–15. Nigeria’s argument to the contrary is

unpersuasive. There is no indication that specialized experience in the enforcement of

international arbitration awards was required to handle the matter competently, as evidenced by

Mr. Barrett’s success in this case. Finally, the concerns raised in the Court’s earlier fees ruling

2 have been satisfied: ENPH has sworn that the initial flat rate it agreed to pay Mr. Barrett was

renegotiated, that Mr. Barrett submitted invoices, and that ENPH is obligated to pay them. Pl.’s

Second Mot. for Atty’s Fees and Costs Ex H (Keith Sparks Decl.). Nigeria has not challenged

the declaration.

To conclude, the Court will apply a $650/hour rate for legal work—as Mr. Hoffer attests

is a reasonable hourly rate for complex commercial litigation in the Houston market—and a

$150/hour rate for paralegal services, which the Court finds is reasonable. The Court has also

examined Mr. Barrett’s billing records and finds them to be adequate. The time entries appear

reasonable given the extensive litigation that was required to overcome Nigeria's dogged efforts

to resist paying the award. And Mr. Barrett’s reconstruction of contemporaneous billing records

that were purported lost is not a bar to recovering fees. See Westfahl v. District of Columbia,

183 F. Supp. 3d 91, 97 (D.D.C. 2016) (granting attorney’s fees based on after-the-fact estimates

of time spent). Nor is Nigeria's complaint that certain entries are “blocked billed.” Having

examined the particular entries and mindful of the practicalities of legal billing, the Court finds

that the disputed entries do not impair its ability to determine their reasonableness.

ENPH also seeks $4,025.69 in costs as well as attorney’s fees. See Pl.’s Mot. for Att’y

Fees and Nontaxable Expenses at 2. This represents $2,650 in travel and transportation for Mr.

Barrett’s two trips to Washington, D.C. related to this case; $44.95 in postage and delivery

charges; $641.92 for copies and service of appellate briefs; $400 in filing feels; and $228.82 for

Lexis/PACER charges. See Barrett Decl. ¶ 31. The Court concludes that these expenses are

related to ENPH’s suit to enforce the arbitral award and are reasonable costs. It will therefore

also grant ENPH’s request for a bill of costs.

3 It is therefore ORDERED that [54] Plaintiff’s Motion for Attorneys’ Fees and

Nontaxable Expenses is GRANTED IN PART. The Court will award fees at the rate of

$650/hour for 339.86 hours of legal work and $150/hour for 56.32 hours of paralegal work,

resulting in a total of $229,357 in attorney’s fees, and will also award $4,025.69 in costs.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: November 2, 2017