LAWN DOCTOR, INC. v. RIZZO et al

Filing 61

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/13/2015. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LAWN DOCTOR, INC.

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Plaintiff,
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v.
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JOSEPH RIZZO, et al.
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Defendants.
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__________________________________________:

Civil Action No. 12-1430 (PGS)

MEMORANDUM OPINION

BONGIOVANNI, Magistrate Judge

Currently pending before the Court is Plaintiff’s, Lawn Doctor, Inc.’s (“LD”), motion to
amend the Court’s Order of March 14, 2014 (Docket Entry No. 55) under FED.R.CIV.P. 60.
Through its motion, LD requests that the Court enter an Amended Final Judgment to include the
award of attorney’s fees it granted in the Letter Order entered on November 4, 2013 (Docket
Entry No. 47). LD filed the instant motion pursuant to the Third Circuit’s Order entered on
January 9, 2015 (Docket Entry No. 57). While on appeal, LD filed a motion in the Third Circuit
seeking leave to file a motion in the District Court pursuant to Fed. R. Civ. P. 60(a). LD’s
motion was unopposed and the Third Circuit granted same, remanding this matter “for the sole
purpose of allowing the District Court to rule on the Rule 60(a) motion.” (Id. at 1). The Court
has fully reviewed the papers submitted in support of LD’s motion to amend the Court’s Order of
March 14, 2014 in order to include the attorney’s fees awarded in the Court’s earlier Letter Order
of November 4, 2013. No opposition has been filed. The Court considers LD’s motion without
oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth below, LD’s motion is
GRANTED.

I.

Background and Procedural History
The facts of this case are well known to the parties and the Court. As such, the Court

shall not restate them at length herein. Suffice it to say, this matter arose out of the termination
of the parties’ Lawn Doctor franchise agreement and Defendants’ purported failure to adhere to
the terms of the non-competition agreement contained in same. On January 25, 2013, this Court
entered a Consent Injunction outlining Defendants’ obligations not to compete with LD.
Included in the Consent Injunction was the requirement that Defendants transfer to LD all
telephone numbers associated with the Lawn Doctor franchise formerly operated by Defendants.
(Consent Injunction; Docket Entry No. 37). Defendants’ subsequent actions placed them in
contempt of the Consent Injunction and this Court held a hearing on September 12, 2013
regarding same. As a result of that hearing, on November 4, 2013, the Court entered a Letter
Order, which granted LD’s request for the assignment of certain telephone numbers used by
Defendants in connection with their former Lawn Doctor business and awarded LD the legal fees
and costs incurred in pursuing the contempt motion. (Letter Order of 11/4/2013 at 1; Docket
Entry No. 47). With respect to the legal fees and costs to be awarded, the Court directed LD to
provide a fee chart by November 20, 2013 and instructed Defendants that they had until
December 11, 2013 to respond with any disputes regarding same. (Id.) LD did as instructed and
no issues were ever raised with respect to the fees and costs outlined by LD.
During the contempt hearing, the Court reserved on the issue of what if any sanctions
should be entered against Defendants for their violation of the Consent Injunction. This Court
addressed same in its Letter Order of March 14, 2014 (Docket Entry No. 55), wherein it
determined that it would require Defendants to pay LD “178,000, i.e., the fair market value of
Plaintiff’s customer list[.]” (Id. at 5). That sum, however, did not include the attorney fees and
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costs contemplated by the Court’s November 4, 2013 Letter Order. Instead, it solely comprised
the civil contempt sanction being imposed by the Court.
On March 28, 2014, Defendants filed a notice of appeal with the Third Circuit regarding
the Court’s contempt decision and imposition of the $178,000 sanction. (Notice of Appeal of
3/28/2014; Docket Entry No. 56). In light of the fact that this Court’s decisions did not address
the fee chart submitted by LD or specify the amount of attorney’s fees and costs to be awarded
consistent with the Court’s decision dated November 4, 2013, LD filed the aforementioned
motion in the Third Circuit seeking leave to file a motion in the District Court pursuant to Fed.
R. Civ. P. 60(a) to amend the March 14, 2014 Letter Order to include the earlier awarded
attorney’s fees and costs. As noted above, the Third Circuit granted same and it is this motion
the Court now considers.
II.

Analysis
A.

Standard of Review

Rule 60(a) permits a court to correct “a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or other part of the record.”
The test for the applicability of Rule 60(a) is whether the change sought affects the substantive
rights of the parties. Pfizer Inc. v. Uprichard, 422 F.3d 124, 130 (3d Cir. 2005). Rule 60(a)
allows for “the correction of “clerical mistakes”, it encompasses only errors ‘mechanical in
nature, apparent on the record, and not involving an error of substantive judgment.’” Id. at 129130 (citation omitted).
Rule 60(b) also permits parties to seek relief from judgments and orders. In contrast to
Rule 60(a), however, Rule 60(b) permits relief for a party from a final judgment, order or
proceeding for “(1) mistake, inadvertence, surprise or excusable neglect; … or (6) any other
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reason that justifies.” Fed. R. Civ. P. 60(b). Thus, under a limited set of circumstances, parties
can invoke Rule 60(b) to correct errors that are more substantive in nature. Piacentile v. Thorpe,
Civil Action No. 12-7156 (ES), 2014 WL 7205340 at *2 (D.N.J. Dec. 15, 2014).
B.

Discussion

Plaintiff seeks permission to correct the March 14, 2014 Letter Order under either Rule
60(a) or Rule 60(b) to incorporate the attorney’s fees and costs awarded in the Court’s Letter
Order dated November 4, 2013. As is patently clear from the record in this matter, the Court
explicitly granted LD the attorney’s fees and costs incurred in pursuit of its contempt motion.
(Letter Order of 11/4/2013 at 1). Further, LD submitted all required documentation of its fees
and costs to this Court in a timely manner and Defendants have never made a substantive
response to same. Because the award of attorney’s fees and costs was granted by the Court in its
November 4, 2013 Letter Order, the Court finds its exclusion from the Letter Order entered on
March 14, 2014 to be exactly the type of mistake Rule 60(a) is intended to correct. See also
Pfizer, Inc., 422 F.3d at 130. The correction requested by LD does not affect in any way the
substantive rights of Defendants. As such, Rule 60(b) need not be addressed. The Court shall
therefore amend the March 14, 2014 Letter Order to include the earlier awarded attorney’s fees
and costs.
With respect to the amount of attorney’s fees and costs to be awarded, the Court
must calculate the “lodestar” amount by multiplying the attorneys and legal staff’s
reasonable hourly rates by the number of hours reasonably spent. Interfaith Cmty. Org. v.
Honeywell Int’ll, Inc., 426 F.3d 694, 703 (3d Cir. 2005) (citing Hensley v. Eckerhart, 461
U.S. 424 (1983)). The fee applicant bears the burden of establishing the hours spent and
the market rate, as well as the reasonableness of same. See Hensley, 461 U.S. at 433
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(noting that fee applicant must provide appropriate documentation of hours spent and
market rate).
The Court finds the fees and costs requested by LD in its fee chart submitted on
November 20, 2013 to be reasonable. (See Ex. C to Decl. of Jesse C. Ehnert, Esq.;
Docket Entry No. 59-2). In this regard, the Court finds that both the hourly rates charged
by LD ($300/hr for its partners and of counsel; $100/hour for its paralegal) and the time
spent by its attorneys and legal staff on the contempt motion (76.90 hours in total) were
reasonable. See Blakely v. Continental Airlines, 2 F. Supp. 2d 598, 603 (D.N.J. 1998)
(noting that party seeking attorney’s fees bears burden of establishing reasonable market
rate for character and complexity of legal services rendered). As a result, the Court
amends the March 14, 2014 Letter to include an award of $23,790.18 for the attorney’s
fees and costs incurred by LD in pursing the contempt motion.
III.

Conclusion
For the reasons stated above, LD’s motion seeking leave to amend the March 14,

2014 Letter Order under Rule 60(a) is GRANTED. An appropriate Order follows.
Dated: July 13, 2015

s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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