United States District Court, E.D. Louisiana
KYMBERLY M. PROCACCINO
DAVID J. JEANSONNE, II, ET AL.
ORDER AND REASONS
T L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court is the plaintiff's motion for attorney's
fees. For the reasons that follow, the motion is GRANTED.
lawsuit, which arose from the alleged breach of a severance
agreement confected after the end of an office romance led to
the plaintiff's termination of employment, was settled by
the parties. The only issue remaining is whether the
plaintiff may recover attorney's fees incurred during the
time in which the defendants refused to abide by the
factual summary assumes familiarity with the Court's
Order and Reasons dated July 12, 2017, which is hereby
incorporated by reference. The Court restates the more
salient facts bearing on Ms. Procaccino's request for
attorney's fees. David Jeansonne II owns or co-owns
various limited liability companies, including Traffic Jam
Events, LLC (TJE). Before May 2012, Kymberly Procaccino was
employed by TJE. Ms. Procaccino was also romantically
involved with Mr. Jeansonne. When their romantic relationship
ended, Mr. Jeansonne terminated Ms. Procaccino's
16, 2012, Ms. Procaccino agreed to release any claims
respecting her termination of employment and, in exchange,
Mr. Jeansonne and his affiliated companies agreed to pay Ms.
Procaccino a total of $120, 000, payable in monthly
installments of $10, 000.The first $10, 000 installment payment
was timely made, but no other installment payments followed.
According to Ms. Procaccino, Mr. Jeansonne refused additional
payment due to his personal ill feelings.
5, 2017, Ms. Procaccino sued Mr. Jeansonne along with Traffic
Jam Events, LLC (TJE), Platinum Plus Printing, LLC (PPP), and
DTJ Properties, LLC (DTJ) in this Court, invoking the
Court's diversity jurisdiction. Ms. Procaccino alleged
that the defendants' refusal to pay the remaining 11
installment payments pursuant to the severance agreement
constitutes breach of contract. She sought to recover the
$110, 000 owed under the severance agreement; all reasonable
attorney's fees and costs she incurs in enforcing the
severance agreement; damages for losses due to the
defendants' bad faith refusal to perform their
obligation; and damages for nonpecuniary loss pursuant to
Louisiana Civil Code article 1998.
after this lawsuit was filed and defendants were served, on
May 15, 2017, defense counsel, Stephen Kepper called
plaintiff's counsel, Jacob Weixler, to attempt to settle
the case and to obtain the plaintiff's consent to seal
her complaint. Mr. Weixler told Mr. Kepper that she
agreed to seal the complaint without waiving any challenge to
the merits of Mr. Jeansonne's confidentiality arguments.
Mr. Kepper stated that he was given an order from his client
to file an answer and counterclaims to Ms. Procaccino's
complaint, or settle the case, by the end of the day (May
15). Mr. Kepper stated that his client authorized him to
settle all claims between the parties for $130, 000. Ms.
Procaccino rejected the offer.
counter, Mr. Weixler proposed a settlement that would only
resolve Ms. Procaccino's claim under the severance
agreement for $130, 000, but Mr. Kepper insisted that the
defendants were only interested in a global settlement that
would settle all claims that may exist between the parties;
he stated that he would not engage in discussions limited to
settling only the claim underlying this lawsuit. In
particular, Mr. Kepper represented that his clients also
wished to discuss resolution of a real estate dispute between
Ms. Procaccino and Mr. Jeansonne as a part of any settlement
of the severance agreement lawsuit. Nevertheless, Mr. Kepper
agreed to discuss the counteroffer with his client. Mr.
Kepper did so and then left Mr. Weixler a voicemail message;
when Mr. Weixler returned his call, Mr. Kepper stated that
the defendants were only interested in settling all claims
that may exist among the parties. Mr. Kepper then said
“I have my clients' authority to settle for $180,
000.” He said that he was “surprised” that
Mr. Jeansonne gave him this authority given “who he
is” and the aggressive approach he has taken toward Ms.
Procaccino and this litigation. Mr. Kepper stated that Mr.
Jeansonne had offered the $180, 000 in the hopes that he
could put the litigation behind him before filing an answer
and counterclaims later in the day. Mr. Weixler advised Mr.
Kepper that his client was unlikely to accept this offer
given that Ms. Procaccino estimates that her severance and
real estate claims are worth approximately $300, 000.
Procaccino did indeed accept the offer. With Ms.
Procaccino's blessing, Mr. Weixler called Mr. Kepper to
advise him that Ms. Procaccino, who wished to put her
entanglement with defendants behind her, had accepted the
defendants' offer to settle. Expressing relief that that
matter was concluded, Mr. Kepper asked that Mr. Weixler send
him an email confirming Ms. Procaccino's acceptance and
specifying the terms to which the parties had agreed, for the
express purpose of binding the parties in writing, and so
that Mr. Kepper was no longer obliged to file his
client's answer and counterclaims by the end of the
Mr. Kepper said that he would reply to Mr. Weixler's
email to document his clients' acceptance of the
same day that Mr. Kepper first initiated settlement
discussions, Mr. Weixler emailed him at 3:23 p.m., confirming
in writing Ms. Procaccino's acceptance of the settlement
offer and detailing the terms discussed by telephone with Mr.
Kepper. About 20 minutes later, Mr. Kepper called Mr. Weixler
to ask if Ms. Procaccino would consent to two additional
terms: to seal the complaint in this matter and to keep
certain information confidential. Mr. Weixler told Mr. Kepper
that his client agreed with the additional terms. Mr. Kepper
said that he would confirm the settlement agreement by
replying to Mr. Weixler's prior email and memorialize the
additional terms to which the parties had just agreed. Mr.
Kepper asked that Mr. Weixler reply to his forthcoming email
to say that Ms. Procaccino had no objections to including the
two terms just agreed upon; Mr. Weixler agreed that he would
confirm in writing that his client did not object.
after the phone conversation, Mr. Kepper emailed Mr. Weixler,
stating that the defendants accepted the settlement agreement
and referencing the additional terms agreed upon by
telephone. As promised, Mr. Weixler replied to the email
stating “No objection” to inclusion of the
morning of May 16, 2017, Mr. Jeansonne reneged; he informed
his attorney that the defendants no longer wanted to settle
on the agreed-upon terms. Mr. Kepper says that he immediately
called Mr. Weixler to inform him that the defendants had
declined to settle on the terms negotiated, but Ms. Weixler
says that he did not receive a call from Mr. Kepper on May
16, 2017. Rather, according to Mr. Weixler, on the evening of
May 16, Greg Latham, who is Mr. Kepper's co-counsel,
called Thomas McEachin, who is a named partner at the firm
where Mr. Weixler is an associate attorney, and who is also a
longtime friend of Mr. Latham. Mr. Latham told Mr. McEachin
that Mr. Kepper had authority from his client to settle the
matter on the agreed-upon terms, but that Mr. Jeansonne had
changed his mind. Mr. Latham said that Mr. Kepper had ...