BBA Logistics LLC v. GO PRO EXPRESS LLC

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
BBA LOGISTICS, individually and as
assignee of SL PRODUCE LLC
§
§
§
§
§
§
VS. CIVIL ACTION NO. 5:25-CV-47
GO PRO EXPRESS LLC
REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff’s Motion for Entry of Final Judgment by Default.
(Dkt. No. 10). Plaintiff filed the motion after obtaining the Clerk’s entry of default
against Defendant. (Dkt. No. 8). Defendant has not answered or otherwise appeared
in this case. Thus, Plaintiff now requests that the Clerk enter default judgment
pursuant to Rule 55(b)(1). For the reasons below, the Undersigned RECOMMENDS
that Plaintiff’s Motion for Entry of Final Judgment by Default be GRANTED in part
and DENIED in part.
I. BACKGROUND
On April 15, 2025, Plaintiff, individually and as an assignee of SL Produce
LLC, filed an original complaint against Defendant. (Dkt. No. 1 at 1). In its complaint,
Plaintiff alleges that it, as the broker, entered into a Broker/Carrier Agreement
(“Agreement”) with Defendant, as the motor carrier, on June 29, 2024. (Id. at 2). On
December 11, 2024, Defendant agreed to transport 1,322 cases of green bell peppers
on behalf of Plaintiff’s shipping customer, SL Produce, from McAllen, Texas to
Cleburne, Texas. (Id. at 3). Plaintiff provided Defendant with temperature-controlled
United States District Court
Southern District of Texas
ENTERED
November 25, 2025
Nathan Ochsner, Clerk
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instructions, requiring the shipment be maintained at 45 degrees Fahrenheit. (Id.).
Defendant delivered the shipment on December 14, 2024, but failed to comply with
the temperature requirements, thus the shipment was rejected. (Id. at 4).
Consequently, Plaintiff received a claim in the amount of $20,076 from SL Produce
for the damaged shipment. (Id.). Pursuant to the Agreement’s indemnification clause,
Plaintiff “made a claim with [Defendant] for the damaged [s]hipment.” (Id.). However,
Defendant “refused to pay or acknowledge the claim[,]” resulting in Plaintiff paying
SL Produce’s claim in full “in exchange for a full assignment of [the] claim.” (Id.).
Thus, Plaintiff presents the following claims: (1) as an assignee, for liability under
the Carmack Amendment; (2) individually, for breach of contract for Defendant’s
failure to “follow the bill of lading’s requirements” and to indemnify Plaintiff; and (3)
in the alternative, vicarious liability. (Id. at 6–7).
Plaintiff served Defendant with summons on April 24, 2025. (Dkt. No. 6).
Accordingly, Defendant’s answer was due by May 15, 2025. See Fed. R. Civ. P.
12(a)(1)(A)(i). However, as of the date of this order, Defendant has failed to timely
answer or otherwise appear in this case. Subsequently, on June 10, 2025, Plaintiff
filed a request for entry of default against Defendant, which the Clerk of Court
entered on June 12, 2025. (Dkt. Nos. 7, 8). On June 23, 2025, Plaintiff filed its motion
for default judgment. (Dkt. No. 10).
In its motion, Plaintiff requests that the Clerk enter default judgement
pursuant to Federal Rule of Civil Procedure 55(b)(1). (Id. at 1). Plaintiff seeks to
recover $20,076 for unpaid damages, $20,581.59 in reasonable legal fees and costs,
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and pre- and post-judgment interest. (Id. at 5). In support of its motion, Plaintiff
provides an affidavit from its chief operating director, detailing the Agreement
between the parties, along with a copy of the bill of lading and invoice of SL Produce’s
claim for the damaged shipment. (Dkt. No. 10-1 at 1, 3, 8). Plaintiff also provides its
counsel’s declaration on reasonable attorney’s fees. (Dkt. No. 10-2). A certificate of
service indicates Plaintiff served the motion on Defendant through its registered
agent on June 23, 2025, via certified mail. (Dkt. No. 10 at 6). Defendant has not
responded to the motion.
II. LEGAL STANDARD
Obtaining a default judgment requires a three-step process. Griffin v. O’Brien,
Wexler, & Assocs., LLC, 680 F. Supp. 3d 772, 780 (citing New York Life Ins. v. Brown,
84 F.3d 137, 141 (5th Cir. 1996)). First, a default must occur, meaning that the
“defendant has failed to plead or otherwise respond to the complaint within the time
required by the Federal Rules.” New York Life Ins., 84 F.3d at 141. Once the
defendant has defaulted and it is established by affidavit or otherwise, the clerk must
enter an entry of default. Id.; Fed. R. Civ. P. 55(a). Following a clerk’s entry of default,
the plaintiff may then apply to the clerk or the court for a default judgment. New
York Life Ins., 84 F.3d at 141; Fed. R. Civ. P. 55(b). The clerk may enter default
judgment, “if the plaintiff’s claim is for a sum certain or a sum that can be made
certain by computation.” Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must
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apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2).
“A default judgment is a judgment on the merits that conclusively establishes
the defendant’s liability.” BBVA USA v. Hall, No. 5:19-CV-99, 2020 WL 9814212, at
*1 (S.D. Tex. Dec. 18, 2020) (citing United States ex. rel. M-CO Constr., Inc. v. Shipco
Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987)). A default judgment is a “drastic
remedy, not favored by the Federal Rules, and resorted to by courts only in extreme
situations.” Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276
(5th Cir. 1989). “A party is not entitled to a default judgment as a matter of right,
even where the defendant is technically in default.” Ganther v. Ingle, 75 F.3d 207,
212 (5th Cir. 1996).
III. ANALYSIS
A. Default Judgment Under Federal Rule of Civil Procedure 55(b)(1)
The clerk may enter default judgment, “if the plaintiff’s claim is for a sum
certain or a sum that can be made certain by computation.” Fed. R. Civ. P. 55(b)(1).
Here, Plaintiff moved for default judgment under Rule 55(b)(1), asserting its claims
are for a sum certain. (Dkt. No. 10 at 2). However, in their motion, Plaintiff requests
pre-judgment interest. (Id. at 5). “[F]ederal law governs the range of remedies,
including the allowance and rate of prejudgment interest, where a cause of
action . . . arises out of federal statute.” Carpenters Dist. Council v. Dillard Dept.
Stores, Inc., 15 F.3d 1275, 1287 (5th Cir. 1994) (first citing F.D. Rich Co. v. United
States ex rel. Industrial Lumber Co., 417 U.S. 116, 127 (1974); and then Hansen v.
Cont’l Ins. Co., 940 F.2d 971, 983 (5th Cir. 1991)). In determining whether pre-
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judgment interest should be awarded, courts apply a two-step analysis. Id. (first
citing Hansen, 940 F.2d at 984 n.11; and then Guidry v. Booker Drilling Co., 901 F.2d
485, 488 (5th Cir. 1990)). “If prejudgment interest can be awarded under the two-
prong test, whether such interest is awarded in any given case is within the Court’s
discretion.” Id. (first citing Calderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384,
392 (5th Cir. 1989); and then Oil, Chemical & Atomic Workers Int’l Union v. Am.
Cyanamid Co., 546 F.2d 1144, 1144 (5th Cir. 1977)).
Courts have generally found that pre-judgment interest is permitted for claims
under the Carmack Amendment, thus, awarding pre-judgment interest is within the
Court’s discretion. See id.; Eagle Transp., LLC v. Scott, No. 2:11-CV-96-KS-MTP,
2012 WL 1252616, at *3–4 (S.D. Miss. Apr. 13, 2012); see also Renouf v. Aegis
Relocation Co., 641 F.Supp.3d 439, 452 (N.D. Ohio 2022) (“The Carmack Amendment
does not explicitly provide for or prohibit the award of prejudgment interest, and any
award of prejudgment interest is committed to a court’s broad discretion.” (citing
Ambromovage v. United Mine Workers of Am., 726 F.2d 972, 981–82 (3d Cir. 1984))).
As it is within the Court’s discretion to award pre-judgment interest, the Court shall
review Plaintiff’s motion under Rule 55(b)(2).
B. Default Judgment Under Federal Rule of Civil Procedure 55(b)(2)
The decision to grant a default judgment is within the sound discretion of the
district court. Sindhi v. Raina, 905 F.3d 327, 330–31 (5th Cir. 2018). In determining
whether default judgment should be granted, courts must (1) “consider whether entry
of default judgment is appropriate under the circumstances;” and (2) “assess the
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merits of the plaintiff’s claims and find a sufficient basis in the pleadings for the
judgment.” J & J Sports Prods., Inc. v. Guerrero, No. 5:17-CV-92, 2018 WL 375391,
at *1 (S.D. Tex. Jan. 11, 2018).
1. Entry of Default Judgment
Relevant factors in determining whether default judgment is appropriate
include:
[1] Whether material issues of fact are at issue, [2] whether there has
been substantial prejudice, [3] whether the grounds for default are
clearly established, [4] whether the default was caused by a good faith
mistake or excusable neglect, [5]the harshness of a default judgment,
and [6] whether the court would think itself obliged to set aside the
default on defendant’s motion.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). Additionally, the Court must
consider whether Defendant is a minor, incompetent, or active military service
member. Bank of N.Y. Mellon Tr. Co., NA v. Hancock, No. 5:19-CV- 270-H-BQ, 2020
WL 2989023, at *2 (N.D. Tex. June 4, 2020).
As Defendant failed to answer or otherwise appear in this case, no material
issues of fact exist. See Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d
1200, at 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff’s
well-pleaded allegations of fact, is concluded on those facts by the judgment, and is
barred from contesting on appeal the facts thus established.”). Additionally,
Plaintiff’s interests are prejudiced as Defendant’s failure to answer or otherwise
appear “threatens to bring the adversary process to a halt.” Ins. Co. of the W. v. H & G
Contractors, Inc., No. C-10-390, 2011 WL 4738197, at *3 (S.D. Tex. Oct. 5, 2011) (first
citing Lindsey, 161 F.2d at 893; and then Sun Bank, 874 F.2d at 276). Grounds for
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default are clearly established as evidenced by the Clerk’s Entry of Default, showing
Defendant “failed to plead or otherwise defend in this case.” (Dkt. No. 8); see
Innovative Sports Mgmt., Inc. v. Paisa’s Truck LLC, No. 4:22-CV-04105, 2024 WL
625316, at *3 (S.D. Tex. Feb. 14, 2024). Moreover, there is no evidence that
Defendant’s failure to answer is the result of a good-faith mistake or excusable
neglect.
Regarding the harshness of the default judgment, approximately seven months
have passed since the filing of this case and “the harshness of default judgment is
mitigated as time passes without an appearance or filing from an opposing party.”
Guerrero, 2018 WL 375391, at *2. Further, the Undersigned is unaware of any facts
that would obligate the Court to set aside the default judgment if it were challenged
by Defendant. Thus, all factors weigh in favor of entering default judgment.
Additionally, Defendant “is a business entity, not a minor, incompetent person, or in
the military.” (Dkt. No. 7-1). Accordingly, the Undersigned finds an entry of default
judgment is appropriate.
2. Sufficient Pleadings
As noted, an entry of default judgment requires a “sufficient basis in the
pleadings” to establish a defendant’s liability. Nishimatsu, 515 F.2d at 1206. By
defaulting, a defendant admits all “well-pleaded allegations” in the complaint but is
“not held to admit facts that are not well-pleaded or to admit conclusions of law.”
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496 (5th Cir. 2015) (quoting
Nishimatsu, 515 F.2d at 1206). To determine whether an allegation is “well-pleaded,”
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the Fifth Circuit looks to Federal Rule of Civil Procedure 8, which governs the
sufficiency of a complaint. Id. at 498. Under that standard, “‘[d]etailed factual
allegations’ are not required, but the pleading must present ‘more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.’” Id. (quoting Aschcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
a. Liability Under the Carmack Amendment
The Carmack Amendment to the Interstate Commerce Act “provides ‘the
exclusive cause of action for loss or damages to goods arising from the interstate
transportation of those goods by a common carrier.’” United Van Lines, LLC v. Marks,
404 F. Supp. 2d 954, 957–58 (S.D. Tex. 2005) (quoting Hoskins v. Bekins Van Lines,
343 F.3d 769, 778 (5th Cir. 2003)); see 49 U.S.C. § 14706. To establish liability under
the Carmack Amendment, the shipper seeking damages must show “(1) that the
goods were delivered to the carrier in good condition; (2) that the goods were delivered
by the carrier back to the shipper in damaged condition, or not at all; and (3) the
amount of damages.” United Van Lines, 404 F. Supp. 2d at 2 (first citing Mo. Pac.
R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964); and then Hoskins, 343 F.3d at
778). Additionally, a non-shipper broker may bring suit under the Carmack
Amendment so long as it has “an assignment from the shipper or a basis for
subrogation to the shipper’s rights.” Haulmark Servs., Inc. v. Solid Grp. Trucking,
Inc., No. H-14-0568, 2014 WL 5768685, at *2 (S.D. Tex. Nov. 5, 2014) (citing Pyramid
Transp., Inc. v. Greatwide Dallas Mavis, LLC, No. 3:12-CV-0149-D, 2013 WL 840664,
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at *4 (N.D. Tex. Mar. 7, 2013)).
Pursuant to the Agreement between the parties, Defendant, as the carrier,
“assume[d] the liability of a motor carrier as provided in § 11707 of Title 49 of the
United States Code as well as the Carmack Amendment.” (Dkt. No. 13-1 at 1).
Plaintiff alleges it contracted with Defendant to transport a food shipment on behalf
of SL Produce. (Dkt. No. 10 at 4). SL Produce tendered the goods in good condition,
along with “explicit handling instructions, including refrigeration and temperature-
maintenance protocols.” (Id.). However, Defendant failed to follow the instructions,
damaging the food shipment as it “arrived spoiled and unfit for human consumption.”
(Id.). The actual loss of the damaged shipment amounted to $20,076. (Id.).
Accordingly, Plaintiff asserts that Defendant is liable under the Carmack Agreement,
and, as an assignee, requests $20,076 for the actual loss sustained by SL Produce.
(Id. at 4, 5). Supporting its claim, Plaintiff provides an affidavit along with a copy of
the bill of lading and the $20,076 invoice for the damaged shipment. (Dkt. No. 10-1).
Thus, the Undersigned finds there is a sufficient basis for relief on Plaintiff’s claim
under the Carmack Amendment.
b. Breach of Contract Claim
Under Texas law1, “[t]he essential elements of a breach of contract action are:
1 The parties’ Agreement contains a Texas choice of law provision. (Dkt. No. 13-1 at 16). Courts
exercising supplemental jurisdiction on a state law claim apply the choice of law rules of the forum
state. Schweiger v. USAA Federal Savings Bank, No. SA-17-CV-00660-OLG, 2017 WL 6503660, at *2
(W.D. Tex. Dec. 18, 2017). Thus, the Court shall apply Texas choice of law rules. The parties’
Agreement provides:
[A]ll issues concerning the construction, interpretation, validity, and enforceability of
this Agreement, and any other dispute arising out of this Agreement, whether in a
court of law or in alternative dispute resolution, shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, including the applicable
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(1) the existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of the breach.” Smith Int’l v. Egle Grp., 490 F.3d 380, 387 (5th
Cir. 2007) (citation omitted). “A breach occurs when a party fails to perform a duty
required by the contract.” Id. (citation omitted).
Here, Plaintiff alleges it entered into an Agreement with Defendant on July
29, 2024, where Defendant “acted as the motor carrier to transport and deliver goods
and commodities for [Plaintiff], acting as the freight or transportation broker.” (Dkt.
No. 1 at 2). Per the Agreement, Defendant agreed “that the shipment of freight will
move under the terms and conditions listed in the bill of lading.” (Dkt. Nos. 1 at 6;
13-1 at 12). Additionally, the Agreement contains an indemnification provision,
providing:
CARRIER will indemnify and hold harmless BROKER, its employees,
officers, directors, agents, principals and assigns from any liability,
settlements, judgments, verdicts, attorneys fees or expense or any
nature whatsoever arising out of any claims, demands or suits against
BROKER which in any way relate to a claim of BROKER’s liability or
culpability for the actions of CARRIER, including negligent or improper
hiring or retention of CARRIER, its employees (statutory or otherwise)
agents, principals, officers, directors, assigns or anyone acting by or for
CARRIER, for any aspect of the transportation of freight, public
liability, personal injury, bodily injury, emotional or mental distress,
wrongful death, loss of consortium, cargo liability or any claim or cause
of action recognized by any state, municipality, county or any
jurisdiction, Administrative Agency, or the Government of the United
statutes of limitations under Texas law, without giving effect to any choice of law
provision applying the laws of another jurisdiction.”
(Dkt. No. 13-1 at 16). “Texas law gives effect to choice of law clauses regarding construction of
a contract.” Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 726 (5th Cir, 2003) (first
citing In re J.D. Edwards World Sols. Co., 87 S.W.3d 546, 549 (Tex. 2002); and then
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 cmt. c.). Thus, Texas law applies.
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States.
(Dkt. No. 13-1 at 16–17).
Plaintiff claims that as the broker, it “facilitated the tender of shipments to
[Defendant], as motor carrier, for [Defendant] to transport certain shipments for
[Plaintiff’s] shipping customers.” (Dkt. No. 1 at 2). On December 10, 2024, Plaintiff
contacted Defendant about transporting the shipment on behalf of its shipping
customer, SL Produce, and Defendant agreed to do so for $1,400. (Id. at 3). Plaintiff
alleges Defendant failed to follow the temperature requirements listed in the bill of
lading, and the shipment was rejected. (Id. at 4). As the shipment was damaged, SL
Produce made a claim against Plaintiff for $20,076, which Plaintiff paid in full. (Id.).
In accordance with the Agreement’s indemnity provision, Plaintiff made a claim with
Defendant for the shipment; however, Defendant refused to indemnify Plaintiff. (Id.
at 4, 5). Thus, Plaintiff alleges Defendant breached the Agreement by “failing to
follow the bill of lading’s requirements” and “failing to indemnify and hold [Plaintiff]
harmless for the damages [it] suffered as a result of [Defendant’s] violation of 49
U.S.C. § 11707 and the Carmack Amendment, namely paying [Plaintiff’s] customer
SL Produce LLC the value of the shipment.” (Dkt. No. 1 at 6, 7). Accordingly, the
Undersigned finds there is a sufficient basis for relief on Plaintiff’s breach of contract
claim.
3. Relief Requested
“A default judgment establishes the defendant’s liability but not the quantity
of damages.” L. Funder, L.L.C. v. Munoz, 924 F. 3d 753, 761 (5th Cir. 2019) (citing
ShipCo Gen., Inc., 814 F.2d at 1014). “[W]here a plaintiff submits an affidavit
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supporting documents demonstrating that the damages are in an amount certain, the
entry of a default judgment in that amount without the need for an evidentiary
hearing is permissible.” Champion v. Phaselink Util. Sols., LLC, No. SA-22-CV-
00145-JKP, 2022 WL 3693461, at *3 (citing Leedo Cabinetry v. James Sales &
Distrib., Inc., 157 F.3d 410, 414 (5th Cir. 1998)).
Here, Plaintiff requests a default judgment “in the amount of $40,657.59,
which includes $20,076 for unpaid damages, reasonable legal fees and costs in the
amount of $20,581.59, pre- and post-judgment interest, and all other just and
appropriate relief determined by the Court.” (Dkt. No. 10 at 4–5). In support of its
request, Plaintiff submitted an affidavit from its Director of Operations who avers
that Defendant has refused to indemnify Plaintiff for SL Produce’s $20,076 claim for
the damaged shipment, which Plaintiff paid in full. (Dkt. No. 10-1 at 3–4). The
affidavit includes a copy of invoice for the shipment. (Id. at 8). Plaintiff also submitted
a declaration from its counsel on reasonable attorney’s fees. (Dkt. No. 10-1). Thus,
the Undersigned finds that an evidentiary hearing on damages is not needed. See
Hancock Whitney Bank v. ECS Exec. Corp. Serv., No. 4:21-CV-00932, 2022 WL
1211375, at *4 (S.D. Tex. Apr. 25, 2022) (“If a calculation can be made ‘with certainty
by reference to the pleadings and supporting documents,’ a hearing to determine
damages is unnecessary.” (quoting James v. Frame, 6 F.3d 307, 311 (5th Cir. 1993))).
a. Damages
Although neither claim is pleaded in the alternative, Plaintiff requests $20,076
in damages. (Dkt. Nos. 1 at 8, 10 at 4–5). “The Carmack Amendment allows a shipper
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to recover damages from a carrier for ‘actual loss or injury to the property’ resulting
from the transportation of cargo in interstate commerce.” Nat’l Hisp. Circus, Inc. v.
Rex Trucking, Inc., 414 F.3d 546, 549 (5th Cir. 2005). Plaintiff seeks damages in the
amount of $20,076 for the actual loss sustained by SL Produce. (Dkt. No. 10 at 4).
Plaintiff’s submitted affidavit includes an invoice for the damaged shipment
supporting this amount. (Dkt. No. 10-1 at 8). Thus, the Undersigned recommends
Plaintiff be awarded $20,076 in damages.
b. Attorney’s Fees
Plaintiff requests $20,581.59 in reasonable attorney’s fees pursuant to Section
38.001(8) of the Texas Civil Practice and Remedies Code and the indemnity provision
in the Agreement. (Dkt. Nos. 13 at 3, 10 at 4).
“The award of attorneys’ fees is governed by the law of the state whose
substantive law is applied to the underlying claims.” Kona Tech. Corp. v. S. Pac.
Transp. Co., 225 F.3d 595, 614 (5th Cir. 2000) (quoting Exxon, Corp. v. Burglin, 4
F.3d 1294, 1301 (5th Cir. 1993)). Here, the breach of contract claim was governed by
Texas law, thus Texas law applies. Under Texas law, “attorneys’ fees are recoverable
when provided for by statute or contract.” As noted, the indemnity provision in the
Agreement requires Defendant to indemnify Plaintiff “from any liability, settlements,
judgments, verdicts, attorney fees or expense or any nature whatsoever arising out of
any claims, demands, or suits against [Plaintiff] which in anyway relate to a claim of
[Defendant’s] liability or culpability for the actions of [Defendant].” (Dkt. No. 13-1 at
16). Further, “when a prevailing party in a breach of contract suit seeks attorneys’
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fees, an award of reasonable fees is mandatory under Tex. Civ. Prac. & Rem. Code
Ann. § 38.001(8).” Kona Tech. Corp., 225 F.3d at 614 (citations omitted). The party
requesting attorney’s fees has the burden of showing the fees are reasonable.
Carrington Mortg. Servs., LLC v. Tackett, No. 2:23-CV-124, 2024 WL 5440743, at *1
(S.D. Tex. Nov. 7, 2024) (quoting Thabico Co. v. Kiewit Offshore Servs., Ltd., No. 2:16-
CV-427, 2017 WL 4270743, at *2 (S.D. Tex. Sept. 26, 2017)).
In determining the reasonableness of attorney’s fees, courts apply the two-step
lodestar method. Pac. Premier Bank v. Hira, No. 3:17-CV-0312-B, 2018 WL 3455508,
at *1 (N.D. Tex. July 18, 2018). The first step consists of calculating “the lodestar by
multiplying the ‘number of hours reasonably expended . . . by the prevailing hourly
rate in the community for similar work.’” Id. (quoting Combs v. City of Huntington,
829 F.3d 388, 391 (5th Cir. 2016)). After determining the lodestar figure, the “courts
then apply the eight Anderson factors to determine whether the lodestar should be
adjusted.” Id. (citing Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812,
818 (Tex. 1997)). The factors are as follows:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.
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Arthur Anderson & Co., 945 S.W.2d at 818.
Further, “Texas law requires that ‘[i]f any attorney’s fees relate solely to a
claim for which such fees are unrecoverable, a claimant must segregate recoverable
from unrecoverable fees.” Meridian Dental Lab’ys, Ltd. v. Chiang, No. 3:21-CV-1189-
S-BH, 2023 WL 2718434, at *7 (N.D. Tex. Mar. 7, 2023) (quoting ATOM Instrument
Corp. v. Petroleum Analyzer Co., L.P., 969 F.3d 210, 217 (5th Cir. 2020)). However,
segregation is not required “where both types of claims arise ‘out of the same
transaction and are so interrelated that their prosecution or defense entails proof or
denial of essentially the same facts.’” Id. (quoting Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 311 (Tex. 2006)). “The party seeking to recover attorney’s fees bears
the burden of demonstrating segregation is not required.” Id. (quoting Lederer v.
Lederer, 561 S.W.3d 683, 701 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).
Plaintiff brings a Carmack Amendment claim and breach of contract claim.
However, attorney’s fees are not recoverable under the Carmack Amendment, even
when authorized by state law. Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d
874, 876 (5th Cir. 1996) (citing Strickland Transp. Co. v. Am. Distrib. Co., 198 F.2d
546, 547 (5th Cir. 1952)). Plaintiff’s submitted declaration regarding attorney’s fees
does not demonstrate that recoverable fees were segregated from unrecoverable fees
or explain why segregation is not required.
Additionally, the declaration provides the hourly rates for the attorneys who
have worked on the matter. (Dkt. No. 10-2). While Plaintiff’s counsel, Deana S. Stein,
avers the rates are commensurate with each attorney’s level of experience and
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expertise, the information provided is insufficient for the Court to determine whether
the hourly rates are reasonable. (See id. at 1–2). “An attorney’s reasonable hourly
rate should be ‘in line with those prevailing in the community for similar services by
lawyers of reasonable comparable skill, experience and reputation.” Paul v. Trans
Union, LLC, No. 4:20-CV-00794-SDJ-CAN, 2021 WL 3503393, at *15 (E.D. Tex. July
21, 2021) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). “[T]he ‘relevant
market for purposes of determining the prevailing rate to be paid in a fee award is
the community in which the district court sits.’” Al Asher & Sons, Inc. v. Foreman
Elec. Serv. Co., Inc., No. MO:19-CV-173-DC, 2021 WL 799315, at *4 (W.D. Tex. Feb.
1, 2021) (citing Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002)). “[T]o
inform and assist the court in determining the reasonable rate, the fee applicant
should produce an affidavit of the attorney performing the work, information of rates
actually billed and paid in similar lawsuits, as well as affidavits of other attorneys
practicing in the community in question.” Paul, 2021 WL 3503393, at *15 (quoting
Tollett, 285 F.3d at 368) (cleaned up). Without more information, the Undersigned is
unable to determine the amount of reasonable attorney’s fees to be awarded and thus
recommends Plaintiff’s request for attorney’s fees be denied.
c. Pre-Judgment Interest
“[F]ederal law governs the range of remedies, including the allowance and rate
of prejudgment interest, where a cause of action . . . arises out of federal statute.”
Carpenters, 15 F.3d at 1287 (citations omitted). In determining whether pre-
judgment interest should be awarded, courts apply a two-step analysis: “does the
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federal act creating the cause of action preclude an award of prejudgment interest,
and if not, does an award of prejudgment interest further the congressional policies
of the federal act.” Id. (citations omitted). Courts have found that the Carmack
Amendment satisfies both prongs. See Scott, 2012 WL 1252616, at *4 (“The Carmack
Amendment does not forbid the award of prejudgment interest. Furthermore, it is
clear that congress intended for carriers to be responsible for all losses resulting from
the failure to discharge a duty as to any part of the agreed transportation.” (citations
omitted)); XPO Logistics, Inc. v. Trans Border Xpress Inc., No. 1:23-CV-01087-RP,
2024 WL 3493793, at *3 (W.D. Tex. July 19, 2024), R. & R. adopted, 2024 WL 3730276
(W.D. Tex. Aug. 6, 2024).
When federal law does not provide a pre-judgment interest rate, courts look to
state law for guidance. XPO Logistics, 2024 WL 3493793, at *3. Courts have looked
to Chapter 304 of the Texas Finance Code when determining the pre-judgment
interest rate. Ledet v. Across USA, No. H-14-1846, 2024 WL 2114308, at *9 (S.D. Tex.
May 9, 2024) (citing Arete Partners, L.P. v. Gunnerman, 643 F.3d 410, 414–15 (5th
Cir. 2011)). Pursuant to the Texas Finance Code, “[t]he prejudgment interest rate is
equal to the postjudgment interest rate applicable at the time of judgment.” Tex. Fin.
Code § 304.104. The post-judgment interest rate is “the prime rate as published by
the Board of Governors of the Federal Reserve System on the date of computation.”
Tex. Fin. Code § 34.003(c)(1). The “prejudgment interest accrues on the amount of a
judgment during the period beginning on the earlier of the 180th day after the date
the defendant receives written notice of a claim or the date the suit is filed and end[s]
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on the day preceding the date judgment is rendered.” Tex. Fin. Code § 304.104. Thus,
the Undersigned recommends a pre-judgment interest rate of 7.25% to be accrued on
the judgment from the date the Complaint was filed, April 15, 2025, to the day
preceding the date judgment is entered. See Tex. Fin. Code § 304.004; Texas Officer
of Consumer Credit Commission, Interest Rates, OCCC,
https://occc.texas.gov/publications/interest-rates.
d. Post-Judgment Interest
Plaintiff requests post-judgment interest. (Dkt. No. 10 at 5). Pursuant to 28
U.S.C. § 1961, “[i]nterest shall be allowed on any money judgment in a civil case
recovered in district court.” 28 U.S.C. § 1961. “An award of postjudgment interest is
not discretionary.” Fairmont Specialty Ins. Co. v. Apodaca, 234 F. Supp. 3d 843, 855
(S.D. Tex. 2017) (citing Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 173 (5th
Cir. 2010)). As such, Plaintiff is entitled to post-judgment interest as requested. Per
28 U.S.C. § 1961(a), post-judgment is “calculated from the date of the entry of the
judgment at a rate equal to the weekly average 1-year constant maturity Treasury
yield, as published by the Board of Governors of the Federal Reserve System, for the
calendar week preceding the date of judgment.” 28 U.S.C. § 1961(a). Accordingly, the
Undersigned recommends that Plaintiff be awarded post-judgment interest at the
rate applicable from the date judgment is entered by the District Judge.2
IV. RECOMMENDATION
The Undersigned RECOMMENDS that Plaintiff’s Motion for Entry of Default
2 See Selected Interest Rates (Daily)-H.15, BD. OF GOVERNORS OF THE FED. RSRV. SYS.,
https://www.federalreserve.gov/releases/h15/default.htm (last updated Nov. 21, 2025); Post-Judgment
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Judgment be GRANTED in part and DENIED in part. (Dkt. No. 10). The
Undersigned RECOMMENDS Plaintiff’s motion to be granted to the extent that
default judgment be entered on its Carmack Amendment claim and breach of contract
claim. However, the Undersigned RECOMMENDS Plaintiff’s motion be denied in
regard to its request for attorney’s fees. Overall, the Undersigned RECOMMENDS
Plaintiff be awarded the following:
• Damages in the amount of $20,076.
• Pre-judgment interest on the above at a rate of 7.25%.
• Post-judgment interest on the above at the rate applicable from the date
judgment is entered by the District Judge.
NOTICE TO PARTIES
The Clerk will file this Report and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy
of the Report and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed.
R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States
District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge's report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except
Interest Rates – 2025, U.S. DISTRICT & BANKRUPTCY COURT SOUTHERN DISTRICT OF TEX.,
https://www.txs.uscourts.gov/page/post-judgment-interest-rates-2025.
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upon grounds of plain error, from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted by the District Court. Douglass v.
United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED the 25th day of November, 2025.
Christopher dos Santos
United States Magistrate Judge
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