Raleigh Offset, Inc v. McNamara et al

Filing 36

ORDER granting 26 Motion for Attorney Fees. Signed by US District Judge Terrence W. Boyle on 5/24/2013. Copy sent to the defendant via US Mail. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:11-CV-738-BO
RALEIGH OFFSET, INC.,
Plaintiff,

)
)
)
V.
)
)
HAROLD MCNAMARA, individually and )
doing business as RECYCLE MATERIALS )
MANAGEMENT,
)
Defendants.
)

ORDER

This cause comes before the Court on plaintiffs motion for attorneys' fees pursuant to
N.C. Gen. Stat. § 75-16.1. Defendant has not responded to the motion. For the reasons discussed
below, plaintiffs motion is granted.
BACKGROUND
In granting summary judgment for plaintiff in this action, the Court found that defendant
withdrew a total of$95,670.69 from Raleigh Offset's business bank account; that he converted
such funds to his own personal use and consumption; that the withdrawal, removal, and
conversion of such funds was wrongful, unlawful, and without authorization; that Raleigh Offset
is entitled to recover from defendant personally the funds unlawfully removed; that his actions
affected commerce under N.C. Gen. Stat. § 751.1 et seq.; that they constituted unfair and or
deceptive trade practices under North Carolina law; and that defendant was unjustly enriched by
his actions.
Plaintiff now seeks attorneys's fees under North Carolina's Unfair and Deceptive Trade
Practices Act (NC UDTPA), which provides that a court may, in its discretion, award reasonable
attorneys' fees to the prevailing party in an unfair and deceptive trade practice suit. N.C. Gen.

Stat. § 75-16.1 Attorneys fees may only be awarded upon a finding that "(1) the party charged
with the violation has willfully engaged in the act or practice, and there was an unwarranted
refusal by such party to fully resolve the matter which constitutes the basis of such suit." Id
DISCUSSION

I. Prevailing Party
Plaintiff satisfies the first criteria for an award of attorneys' fees. "[I]n order to be the
'prevailing party' within the meaning ofG.S. 75-16.1, [the plaintiff] must prove not only a
violation ofG.S. 75-1.1 by the defendant, but also that plaintiffhas suffered actual injury as a
result of that violation." Mayton v. Hiatt's Used Cars, Inc., 45 N.C. App. 26,212 (1980). Here,
the Court found that plaintiffhas not only established that defendant violated the NC UDTPA, but
that plaintiff was entitled to damages for defendant's actions. As a violation ofthe NC UDTPA
has been shown and plaintiff has suffered actual injury, plaintiff is the prevailing party in this
action. Id (finding plaintiff had suffered no actual injury where jury returned verdict on liability
in plaintiffs favor but failed to award any damages).

II. Willful Engagement
The Court next finds that defendant willfully engaged in the acts at issue. "Willfulness ...
involves more than deliberation or conscious choice; it also imports a bad faith disregard for
authority and the law." Forte v. Forte, 65 N.C. App. 615, 616 (1983). In order to substitute
himself as signatory to plaintiffs business accounts, defendant traveled from Arizona to Raleigh
and misrepresented to RBC bank that defendant was now the sole shareholder, officer, and
director in light of his partner's death. Defendant was added to the bank account as a signatory
and proceeded to withdraw over $95,000 for his own use. Such actions evince a bad faith
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disregard for authority and the law, and plaintiff has thus satisfied the second criteria to be
considered in awarding attorneys' fees.

III. Unwarranted Refusal to Resolve
Defendant has failed to participate in a meaningful way in this action, and specifically has
failed to engage in any discovery with plaintiff. As the Court has already noted, defendant failed
to timely respond to plaintiffs requests for admission nor did defendant seek an extension of time
to respond or object to any of the requests. Such actions, or failures to act, constitute an
unwarranted refusal to fully resolve the matter. Envirosafe Paints, Inc. v. Conklin, 172 N.C. App.
591, *3 (2005) (unpublished). Plaintiff has accordingly satisfied all three criteria and is entitled to
attorneys' fees.

IV. Fee Amount
Though it has found that plaintiff is entitled to attorneys' fees under the NC UDTPA, the
Court must still satisfy itself that an award of attorneys' fees is appropriate. Willen, 174 N.C.
App. at 721. Plaintiff seeks $41,946.25 in attorneys' fees and $4,414.29 in costs. According to
the billing records submitted, the appropriate attorney fee amount is $39,155.00, representing
118.5 hours billed at the rate of $315.00 per hour, 1 4. 75 hours billed at the rate of $295.00 per
hour, 2.75 hours of paralegal work billed at $115.00 per hour, and 1 hour of paralegal work billed
at $110.00 per hour. The costs as detailed in the billing records submitted total $2,488.04.
Having reviewed the billing records closely, the Court finds that the number of hours
expended and the rates of compensation for counsel with this level of experience are reasonable.

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Counsel's affidavit states that 132.75 hours was billed at $305.00 per hour, but a review
of the billing records submitted reveals the above number of hours and rate.
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Accordingly, the Court, in its discretion, awards plaintiff $39,155.00 attorneys' fees and costs in
the amount of $2,488.04.
CONCLUSION
For the foregoing reasons, plaintiffs motion for attorneys' fees [DE 26] is GRANTED.
Plaintiff is awarded $39,155.00 in attorneys' fees and costs in the amount of$2,488.04.

SO ORDERED. This

a!i day of May, 2013.

b~y~
UNITED STATES DISTRIC JUDGE

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