Opinion
Civil Action No. SA-04-CA-0405 FB (NN).
April 26, 2006
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
The matters before the Court are respondent Natkin Contracting, LLC's ("Natkin" or "respondent") motion for costs and attorney fees (Docket Entry 28), motion for sanctions (Docket Entry 30), and motion to determine interest on the arbitration award (Docket Entry 37). Through its motions, respondent seeks an award of costs and attorney fees expended in defending against Zachry Construction Corporation's ("Zachry" or "petitioner") motion to modify or vacate the arbitration award through fee shifting or as a sanction for wrongful conduct. Respondent also seeks a determination of the amounts owed by petitioner for interest on the amount awarded in the arbitration action.
After considering each of respondent's motions, petitioner's responses to respondent's motions, respondent's replies to petitioner's responses, and petitioner's surreply, I recommend that respondent's motion for costs and attorney fees be GRANTED in part and DENIED in part; respondent's motion to impose sanctions on petitioner and petitioner's counsel be DENIED ; and respondent's motion to determine post-award, pre-judgment interest and post-judgment interest be GRANTED.
Docket Entries 28, 30, and 37.
Docket Entries 32, 33, and 38.
Docket Entries 34 and 40.
Docket Entry 35.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 41.
II. Factual Background
Petitioner entered into a prime contract to construct a "Cherokee Data Center" in Tulsa, Oklahoma. Petitioner entered into a subcontract with respondent to perform work on the construction project. The subcontract contained a provision requiring all disputes arising under the subcontract to be resolved by binding arbitration. From January 19 through January 30, 2004, the parties appeared before a panel of arbitrators for an evidentiary hearing. On March 9, 2004, the arbitrators rendered a decision in favor of respondent, ordering petitioner to pay respondent $1,851,182.00 and holding that petitioner "takes nothing and its counter-claims against Natkin are hereby dismissed with prejudice." The damage award included $203,365.00 for reasonable attorney costs and $750,000.00 for reasonable attorney fees.The arbitration award further provided:
C. Attorney's Fees
1. Natkin is entitled to the recovery of reasonable attorney's fees and costs to pursue its claim against Zachry. These fees are reasonably represented to be $953,365[.00], as already awarded above.
2. No other award of attorney fees is made with each party otherwise absorbing its own costs and fees.
D. Interest and Costs of Collection
1. Post judgment interest is awarded at the current legal rate beginning 30 days after the date of receipt of this award and continuing until payment is received.
2. Natkin is entitled to recover any and all reasonable and necessary costs associated with the enforcement of this award.
Docket Entry 29, Exh. B at 2.
On March 23, 2004, petitioner served an application asking the arbitration panel to modify its award. Among other things, petitioner argued that the arbitration panel had made a mathematical error resulting in the double recovery of anticipated profits by respondent.
Docket Entry 31, Exh. C.
The arbitration panel modified its award by crediting petitioner for an inadvertent award of $21,550.00 in American Arbitration Association administration fees to respondent. In all other respects, the panel reaffirmed its award.
Docket Entry 29, Exh. C.
III. Procedural History
On May 7, 2004, petitioner initiated this federal case by filing a motion to modify or vacate the arbitration award dated March 9, 2004. Respondent opposed the motion to modify or vacate the arbitration award and filed a motion requesting the confirmation of the arbitration award. On September 29, 2004, I issued a Memorandum and Recommendation in which I recommended that petitioner's motion to modify or vacate the arbitration award be denied and respondent's motion to confirm the arbitration award be granted. The parties offered objections to the recommendation and responses to the objections, and additional briefing addressing petitioner's objections concerning discovery. After considering the additional arguments, the District Court accepted the recommendation and entered judgment on September 30, 2005.On October 12, 2005, petitioner tendered a check to respondent in the amount of $1,614,544.80, in full satisfaction of the judgment. Respondent disputed that the sum was the full amount owed, but accepted the tendered amount with the agreement between the parties that the acceptance would not constitute a waiver of any claims for costs, fees, or interest.
Docket Entry 37 at 2.
On October 14, 2005, respondent filed motions to tax costs and attorney fees against petitioner and for sanctions against petitioner and petitioner's counsel which are the subject of this memorandum. On December 22, 2005, respondent filed the motion to determine interest that is also at issue in this memorandum.
IV. Issues Presented
1. Is respondent entitled to an award of costs and attorney fees for defending against petitioner's motion to modify or vacate the arbitration award and prosecuting the motion to confirm the arbitration award?
2. Were petitioner's actions in pursuing the modification or vacation of the arbitration award vexatious and taken in bad faith such that petitioner and its counsel should be sanctioned?
3. Should the District Court modify the judgment to include interest at the rates set forth in respondent's motion?
V. Analysis
A. Taxation of costs and attorney feesRespondent requests the court to award it costs and attorney fees incurred in the post-arbitration proceedings, including those incurred before the arbitration panel and those incurred in this Court. Respondent claims that it has expended out-of-pocket costs in the amount of $2,213.80 and attorney fees of $62,002.50 for a total of $69,216.30. Respondent contends that these amounts reflect reasonable expenditures incurred in (1) filing responses to petitioner's motion to modify or vacate the arbitration award filed with the arbitration panel, and (2) filing responses to petitioner's motion to modify or vacate the arbitration award and prosecuting the motion to confirm the arbitration award filed with this Court. Respondent argues that costs and attorney fees are available pursuant to Oklahoma Statutes Title 12 §§ 928 and 936, the subcontract between petitioner and respondent, and the arbitration award.
Docket Entry 28 at 1.
Petitioner counters that respondent failed to ask the arbitration panel for additional attorney fees within ninety days following the entry of the arbitration award. As a consequence, respondent has waived any right to attorney fees. Further, petitioner contends that the Oklahoma Statutes Title 12 §§ 928 and 936 are not applicable because the contract contained a dispute resolution clause stating that the agreement was subject to the Federal Arbitration Act, and, accordingly, the parties' rights and obligations are delineated by the federal statute and not state law. Even if Oklahoma law is applicable, petitioner contends section 936, which states that reasonable attorney fees are available "unless otherwise provided by law or the contract," shows that the statute will defer to the express contract terms requiring arbitration of all disputes, including those resolving attorney fee questions. Finally, petitioner contends that attorney fees are not available under the Federal Arbitration Act for post-award litigation.
Under the "American Rule," parties to legal actions are ordinarily required to bear the financial burden of prosecuting or defending the action unless a statute provides otherwise. Congress has chosen to authorize the award of costs and attorney fees to prevailing parties in a number of statutes. Parties are also free to shift the burden of fees through an enforceable contract.
Alveska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); see also Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 415 (1978) ("It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney's fees.").
Buckhannon Board and Care Home, Inc. v. West Virginia Dept. Of Health and Human Resources, 532 U.S. 598, 600 (2001).
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967).
Petitioner's motion to modify or vacate the arbitration award and respondent's motion to confirm the arbitration award came before the District Court pursuant to the Federal Arbitration Act, specifically the provisions of 9 U.S.C. §§ 9- 11. The Federal Arbitration Act does not contain an attorney fee shifting provision. Therefore, an award of attorney fees for successfully defending against the motion to alter or vacate and prevailing on the motion to confirm the arbitration award is not authorized by the federal statute.
Menke v. Monchecourt, 17 F.3d 1007, 1009 (7th Cir. 1994).
Further, respondent may not rely on Oklahoma Statutes Title 12 §§ 928 and 936 to obtain an award of attorney fees expended in defending and confirming the arbitration award in federal court because the parties agreed to submit the entire dispute to arbitration. The subcontract expressly provides the exclusive procedure for resolving disputes. Under the subcontract, the parties must first attempt to resolve the dispute through direct discussions, first between site representatives and then between senior officers. If these discussions fail, the parties must then present the dispute to mediation under the Construction Industry Mediation Rules of the American Arbitration Association. If mediation fails to obtain resolution, the dispute is then subject to arbitration.
Docket Entry 29, Exh. A, ¶ GC10.1 at ArbN 001410.
Docket Entry 29, Exh. A, ¶ GC10.2 at ArbN 001410.
Docket Entry 29, Exh. A, ¶ GC10.3 at ArbN 001410.
Under the Federal Arbitration Act, a district court has the very limited role of confirming the arbitration award or modifying the arbitration award in very narrow circumstances. "In such circumstances, where the parties made an agreement intended to avoid court litigation by resolving the entire dispute through arbitration, intervention by the court to award additional relief would be inconsistent with the language and policy of the Federal Arbitration Act."
Menke, 17 F.3d at 1009.
Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 581 (5th Cir. 1986).
Although respondent may not receive an award of attorney fees under the Oklahoma statutes or the Federal Arbitration Act, it is not totally foreclosed from relief. A valid contract provision authorizing the shifting of attorney fees provides an exception to the American Rule. In this case, the arbitration provisions of the subcontract authorized the arbitration panel to "include an award to the prevailing Party of such attorneys' fees and costs as the arbitrator(s) will deem reasonable."
Fleischmann Distilling Corp., 386 U.S. at 718.
Docket Entry 29, Exh. A, ¶ GC10.3 at ArbN 001410.
The arbitration panel made an award of reasonable attorney costs and attorney fees to respondent in the amount of $953,365.00. No other award of attorney fees was authorized in the arbitration, and the parties were to otherwise absorb their own costs and fees.
Petitioner timely filed a motion to modify the arbitration award, and respondent Natkin resisted the modification. After considering petitioner's motion for modification of the award, along with the supporting documents and respondent's responses, the arbitration panel modified the award by directing Natkin to pay Zachry $11,300 for Natkin's share of the arbitration costs. In all other respects, the panel reaffirmed the arbitration award.
Based on the language of the arbitration award, respondent is not entitled to any additional attorney costs and fees for defending petitioner's motion to modify the award before the arbitration panel. The award grants respondent a specific amount of attorney fees and costs and states that the parties will bear any additional attorney costs and fees of the arbitration. The modification reaffirms this portion of the award.
Docket Entry 29, Exh. B at 2.
The arbitration panel reviewed the evidence provided to it pertaining to attorney costs and fees and made a determination of the reasonable amount to award to respondent to compensate it for expenditures related to the arbitration proceedings. There is nothing in the record to suggest that respondent requested additional costs and fees for defending the motion to modify. Furthermore, the determination of an additional award of reasonable attorney fees was squarely within the authority of the arbitration panel as provided by the subcontract. Consequently, respondent's failure to obtain an additional award from the panel for expenditures made in resistence of petitioner's motion for modification precludes any further award for those expenditures. Either the arbitration panel did not find an additional award reasonably appropriate or alternatively, respondent waived its right to these fees and costs by failing to request a modification of the arbitration award.
Docket Entry 42, Exh. E.
However, respondent is entitled to costs and attorney fees subsequently incurred to obtain confirmation of the arbitration award in this Court. The award specifically states that "Natkin is entitled to recover any and all reasonable and necessary costs associated with the enforcement of this award." Black's Law Dictionary defines enforce as:
Docket Entry 29, Exh. B at 2.
To put into execution; to cause to take effect; to make effective; as, to enforce a particular law, a writ, a judgment, or the collection of a debt or fine; to compel obedience to.
Black's Law Dictionary 528 (6th ed. 1990).
The language used in the award is sufficiently broad enough to encompass all costs and attorney fees reasonably incurred in connection with the proceeding in this Court to defend and collect the amount awarded.
See Id. at 346 (6th ed. 1990) (the phrase "costs of collection" is synonymous with attorney fees when appearing in a promissory note); Oklahoma Fixture Co. v. Ask Computer Systems, Inc., 45 F.3d 380, 382 (10th Cir. 1995) (a common sense reading of "all reasonable collection costs" includes attorney fees); Boulevard Bank National Assoc. v. Philips Medical Systems International, 827 F.Supp. 510, 512 (N.D. Ill. 1993) ("collection costs" as used in a commitment letter for a guaranty is broad enough language to show that the parties intended to remove the phrase from the technical meaning of "court costs"); but see Negro Nest, LLC. v. Mid-Northern Management, Inc., 839 N.E.2d 1083 (Ill.App. 4th 2005) (surveying numerous decisions and joining the minority in determining that a provision providing "all collection costs" was insufficient to include attorney fees).
Respondent provided records of the time expended and summarized the fees requested into four categories. Category I includes fees for defending the motion to modify before the arbitration panel. For the reasons discussed above those fees are not recoverable. Category IV includes fees for preparing the fee application, and as such, does not directly involve the enforcement or collection of the award and are not recoverable. Category II, $1,512.00, and Category III, $46,934.00, pertain to the motion to confirm and the motion to modify or vacate brought in the District Court. These amounts, which total $48,446.00, are directly related to enforcement of the arbitration award, and accordingly, I recommend Natkin be awarded attorney fees in that amount.
Docket Entry 29, Exh. 1A.
Respondent also provided summaries of costs incurred by each law firm. These amounts are $1,591.20 and $2,213.80 for total costs of $3,805.00 and are directly related to proceedings before this court to enforce the arbitration award. Petitioner does not argue that the fees and costs requested by respondent are unreasonable amounts. Accordingly, the District Court should GRANT in part and DENY in part respondent's motion and award respondent $52,251.00 as attorney fees and costs of enforcing the arbitration award.
Docket Entry 29, Exh. 1A.
B. Sanctions Against Petitioner and Petitioner's Counsel
1. Sanctions under 28 U.S.C. § 1927 and the inherent powers of a Federal Court
Respondent asks the Court to impose sanctions against petitioner and petitioner's counsel pursuant to 28 U.S.C. § 1927 and a Federal Court's inherent power to impose sanctions. Respondent contends that sanctions are appropriate because petitioner's motion to modify or vacate the arbitration award along with other documents filed in this case were presented for improper purposes, unreasonably multiplied the proceedings, and included frivolous arguments. Respondent further alleges that petitioner acted in bad faith and for improper purposes.
It is well-settled that Federal Courts have certain inherent powers to manage cases and the participants in those cases in order to maintain respect, establish decorum, and ultimately resolve cases in an orderly and expedient manner. These inherent powers include the authority for a Federal Court to control admission to its bar, discipline attorneys that appear before it, punish for contempts, set aside fraudulently obtained judgments, and bar disruptive parties from the courtroom.
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
Id.
"Because of their very potency, inherent powers must be exercised with restraint and discretion." Therefore, when exercising its inherent powers, a court must carefully craft an appropriate sanction which punishes to the extent necessary to deter the abusive conduct. Sanctions can range from severe, including the outright dismissal of a lawsuit, to an assessment of attorney fees.
Id.
Id. at 44-45.
Additionally, Congress has statutorily provided Federal Courts with the authority to sanction parties, as well as attorneys, by shifting the burden of paying the opposing parties' attorney fees. Pertinent to this matter is 28 U.S.C. § 1927, which provides:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct.
Under § 1927, a court may shift the fees to counsel, but not the opposing party. To do so, the court must determine that the sanctioned attorney "vexatiously" and "unreasonably" multiplied the proceedings. "This requires `evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court.'" Persistent prosecution of meritless claims, including repeated filings, often in contravention of repeated warnings from the court, or proof of litigious activities will support sanctions under § 1927.
Procter Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002) (quoting Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998)).
Id.
The Fifth Circuit has recognized the potential dampening effect of § 1927 on the legitimate zeal of counsel in representation of his or her client, and therefore, construes the statute in favor of the sanctioned party. Further, the Fifth Circuit considers the invocation of § 1927 and a Federal Court's inherent powers to sanction, as exceptions, rather than the rule.
Id. at 526.
Conner v. Travis County, 209 F.3d 794, 799 (5th Cir. 2000).
In this case, petitioner's actions before the Court do not rise to levels meriting sanctions. Petitioner was well within its rights to ask the District Court to review the arbitration award and modify or correct the award pursuant to 9 U.S.C. § 10. The fact that petitioner made similar arguments to the arbitration board does not automatically make the motion to modify or vacate the arbitration award frivolous or warrant sanctions. Petitioner made a cogent argument and cited relevant authority to support its position. The fact that petitioner did not ultimately prevail does not diminish the right to review provided by 9 U.S.C. § 10.
Further, the record does not support a finding that petitioner filed numerous frivolous documents in this case, or ignored any warnings from the court to refrain from excessive litigious activities.
Petitioner did seek additional discovery. However, this Court may well have provided the inspiration for that strategy through the entry of a standard Order for scheduling recommendations entered on June 28, 2004. Respondent filed a motion for a protective order prohibiting additional discovery and filed a written status report. These filings elicited a response from petitioner. After additional briefing, the District Court ultimately denied the additional discovery in the Order accepting the Memorandum and Recommendation.
Docket Entry 8.
Docket Entries 10 and 11.
Docket Entry 12.
Docket Entry 26.
None of the actions taken by petitioner support a finding of bad faith or unreasonable compounding of the ligation. Accordingly, sanctions are not warranted under the Court's inherent powers or under 28 U.S.C. § 1927.
2. Sanctions under Federal Rule of Civil Procedure 11
Respondent also seeks sanctions pursuant to Federal Rule of Civil Procedure 11. Rule 11 provides in relevant part:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
Respondent filed its motion for sanctions on October 14, 2005. The certificate of service shows that respondent served petitioner a copy of the motion for sanctions on the same day.
Docket Entry 30 at 10.
Respondent's motion fails procedurally on two counts. First, respondent failed to comply with Rule 11(c)(1)(A) by filing the Rule 11 motion contemporaneously with service of the motion, thereby denying petitioner the twenty-one day "safe harbor" in which to withdraw or correct its motion and avoid sanctions. Second, respondent filed its Rule 11 motion after the District Court denied petitioner's motion to modify or vacate the arbitration award. Consistent with the underlying purposes of Rule 11, the 1993 Advisory Committee Notes instruct that a party must serve its Rule 11 motion prior to judicial determination of the challenged conduct. A motion filed after resolution of the offending conduct is therefore untimely.
Fed.R.Civ.P. 11, 1993 Advisory Committee Notes, at ¶ 14.
Based on the above analysis, the District Court should DENY respondent's motion for sanctions in its entirety.
C. Motion to Determine Post-Award, Pre-Judgment Interest and Post-Judgment Interest
On October 12, 2005, petitioner tendered a check to respondent in the amount of $1,614,544.80. Respondent claims that this amount is insufficient to fully satisfy the award and judgment, and the actual amount due at the time of the tender was $1,736,744.13, this sum being comprised of the award amount of $1,585,176.12 and post-award, pre-judgment interest in the amount of $151,569.01. According to respondent, petitioner's payment left a deficiency of $122,225.19, and the amount due continues to accrue interest at the federal judgment interest rate. Respondent argues that the initial deficiency arises because of petitioner's use of the federal judgment rate instead of using the Oklahoma interest statute to determine post-award, pre-judgment interest on the arbitration award.
Docket Entry 37 at 2-3.
Petitioner disputes respondent's calculations based on the use of the Oklahoma statutory interest rate and argues that the federal judgment rate is the proper rate to determine all the interest under the award. Petitioner also argues that the Court lacks jurisdiction to modify the judgment under either Federal Rules of Civil Procedure 59 or 60.
Respondent counters that petitioner misconstrues the motion, and it seeks neither to amend the judgment nor relief from it, but merely an accounting of the sums owing under the judgment.
At the outset, it should be noted that neither party disputes that the arbitration award provides for interest. Specifically, the arbitration award provides:
Post judgment interest is awarded at the current legal rate beginning 30 days after the receipt of this award and continuing until payment is received.
Docket Entry 31, Exh. B at 2.
Nor do the parties dispute that interest accrues on the award at the federal rate pursuant to 28 U.S.C. § 1961, for the period after entry of the judgment. The main bone of contention is the rate of interest applicable during the period beginning thirty days after the date of the arbitration award date until the date of the entry of the judgment by this Court confirming the arbitration award.
Petitioner's arguments that respondent is foreclosed from seeking a determination of interest is without merit. Respondent does not seek to alter or amend the judgment confirming the arbitration award and therefore, Rule 59(e) is inapplicable. The case remains open and before the court by virtue of respondent's motion to tax costs and fees and motion for sanctions. It would be an inefficient use of the Court's resources to require respondent to commence a separate declaratory or other action seeking a determination of interest due. Likewise, it would be a waste of both parties' time and resources to require the filing of a separate action.
Although not specifically relied upon by the respondent, Rule 60(b) allows the court to correct judgments from errors or omissions, and upon motion give relief on terms as are just. The determination of the correct rate of interest accruing post-award, pre-judgment is necessary in order to calculate the total amount owing so that a writ of execution, if sought, could issue pursuant to Rule 69. Accordingly, the District Court can correct its judgment pursuant to Rule 60 to make explicit the rate of interest applicable to the arbitration award for the period in question.
See Fidelity Federal Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004) (district court had discretion to correct a judgment to include correct interest rate.).
Turning to the question of the rate of interest for the period prior to entry of judgment confirming the arbitration award, the arbitration award itself provides that post-judgment interest "is awarded at the current legal rate." The arbitration panel heard a state law contract dispute. The subcontract at issue specified that the agreement "shall be governed by, and construed and enforced in accordance with the laws in effect in the State of Oklahoma applicable to contracts made and to be performed in that state." Accordingly, the arbitration panel applied Oklahoma law to the dispute, and consequently, awarded interest pursuant to the subcontract and Oklahoma law.
Docket Entry31, Exh. B at 2.
Docket Entry 31, ¶ GC12.3 at ArbN 001411.
See Durga Ma Corp., 387 F.3d at 1024 (holding pre-judgment interest rate applicable to an arbitration award is governed by state law).
As a final matter, petitioner argues that equity dictates that respondent's motion for post-award, pre-judgment interest should be denied. Petitioner contends that respondent should have asked the arbitration panel to clarify its ruling concerning the applicable interest rate. By failing to request the clarification, respondent was not diligent in pursuing its rights and caused harm to petitioner. In particular, petitioner alleges that it would have been able to do a cost-benefits analysis in order to determine whether to continue to challenge the arbitration award, or abandon the fight and pay the award, had respondent timely asked for clarification.
However, petitioner was likewise aware of the ambiguous provisions contained in the arbitration award. In its response to respondent's motion to determine interest, petitioner stated that the post-award, pre-judgment interest provision contained two "striking ambiguities" that leave unclear the rate of interest to be applied to unpaid amounts. Because petitioner bore the ultimate burden of paying the interest if it chose not to tender the amount due within "thirty days after the date of the receipt of this award and continuing until payment [was] received," petitioner had as much incentive to request the arbitration panel to clarify the applicable interest rate as respondent. Petitioner did not request the clarification and chose to withhold payment of the arbitration award pending the outcome of its motion to modify or vacate the arbitration award without that specific information. Therefore, petitioner must bear the consequences of any uncertainty concerning the applicable rate of interest on the arbitration award. Accordingly, petitioner's appeal for equity is without merit.
Docket Entry 38 at 7.
Docket Entry 42, Exh. A at 5.
Petitioner does not take issue with any of respondent's specific calculations of interest using the Oklahoma rate, and the calculations are reasonable. Therefore, the District Court should GRANT respondent's motion to determine interest.
VI. Recommendation
I recommend that the District Court GRANT in part and DENY in part respondent's motion for costs and attorney fees (Docket Entry 28) and award respondent attorney fees and costs of enforcing the arbitration award in the amount of $52,251.00; DENY respondent's motion to impose sanctions on petitioner and petitioner's counsel (Docket Entry 30); and GRANT respondent's motion to determine post-award, pre-judgment interest, and post-judgment interest (Docket Entry 37). I further recommend that the District Court direct Natkin to draft a proposed judgment which clearly sets forth the remaining amount of the arbitration award that is due, including pre-judgment interest at the applicable Oklahoma statutory rates and post-judgment interest at the applicable federal rate. The amount due and owing should be calculated as of a specific date which is identified in the proposed judgment. The proposed judgment should also include the specific amount of costs and attorney fees incurred in enforcing the arbitration award and which have been allowed by this Court. Prior to submitting the proposed judgment to the Clerk of Court, Natkin should submit the proposed judgment to Zachry for approval as to form. Finally, I recommend that the District Court require submission of the proposed judgment to the Clerk by a specific date.VII. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within ten (10) days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings. conclusions, or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within ten (10) days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000), cert. denied, 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).