Progress Solar Solutions, LLC v. Fire Protection, Inc. et al

Filing 234

ORDER granting 205 Motion for Attorney Fees. The court AWARDS attorneys' fees in the amount of $1,052,569.70 to plaintiffs from defendants jointly and severally. Plaintiffs may seek additional attorneys' fees after the court enters a final judgment. Signed by District Judge James C. Dever III on 7/22/2022. Sent to Jeffrey Van Valkenburgh at 5904 A Warner Ave. #170 Huntington Beach, CA 92649 and Michael D Long 3948 Legacy Drive Suite 106-155 Plano, TX 75023 via US Mail. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION

)
)
)
Plaintiff,
)
)
v.
)
)
FJRE PROTECTION, INC., et al.,
)
)
Defendants. )

PROGRESS SOLAR SOLUTIONS,
LLC,

No. 5:17-CV-152-D

)
)
)
Plaintiffs,
)
)
v.
)
)
MICHAEL D. LONG, et al.,
)
)
Defendants. )

PROGRESS SOLAR SOLUTIONS,
LLC, etal.,

No. 5:19-CV-5-D

ORDER
. On December 17, 2021, plaintiffs Progress Solar Solutions, LLC and Daniel L. Robertson
("plaintiffs") moved for an award of reasonable attorneys' fees incurred in these consolidated
actions against defendants Mic~l D. Long ("Long"), Mikel Bills (''Bills"), Solar Mod Systems, Inc.
("SMS"), and Fire Protection, Inc., d/b/a FPI Environmental ("FPP') [D.E. 205] and filed a
memorandum in support [D.E. 208]. Plaintiffs request $1,052,569.70 in fees ($1,027,752.20 in
recoverable fees billed to plaintiffs as of December 2021, as well as $24,817.50 in fees that-as of
,_

the date of plaintiffs' motion-were to be billed to plaintiffs for recoverable time incurred though
3:18 PM on December 17, 2021). Plaintiffs' request includes amounts encompassed in prior

attorney fees submissions that remain pending. Those pending, additional fee amounts are: (a)
$3,376 [D.E. 120] 5; (b) $5,464.50 [D.E. 128] 4; and (c) $30,968 [D.E. 164] 22 and [D.E. 65] 22. 1
Plaintiffs also filed the motion in the consolidated 2019 Case [D.E. 103]. No defendant has opposed,
or otherwise responded to, plaintiffs' attorneys fees motions and supporting papers. As explained
below, the court grants the motions.
I.
The ~ourt has entered various judgments in this case, several of which determined that an
award of attorneys' fees is warranted. In the 2017 Case, the court has made final liability
determinations as to each defendant as set forth in the following decisions:
a.

August 1, 2019 order granting judgment on the pleadings against defendant

SMS's counterclaim for defamation [D.E. 122];

b. September 24, 2020 order entering, inter aliib summary judgment-. in Progress
Solar Solutions, LLC's favor as to all remaining coun~claims made by defendants
[D.E. 148];
c. 'January 6, 2021 default judgment against defendant SMS [D.E. 166];

d August 12, 2021 partial summary judgment against defendants SMS, Long,
Bills, and FPI [D.E. 186]; and
e. August 16, 2021 default judgment against defendant FPI [D.E. 188].
In the 2019 Case, the court has made final liability determinations as to each defendant in that action
as set forth in the following decisions:
f. January 6, 2021 default judgment against defendant SMS [D.E. 67]; and

1

Docket entries in the 2017 Case are cited by using "D.E." without underlining. Docket
entries in the 2019 Case are cited by using "D.E." and underlining.
2

g. August 12, 2021 partial summary judgment against defendants Bills, SMS,
and Long IIl.E. 86].
The court has determined that plaintiffs are entitled to an award oftheir reasonable attorney's
fees in prosecuting these consolidated cases as against defendant FPI in the 2017 Case and
defendant SMS in the 2017 and 2019 Cases. See [D.E. 166] 110; and [D.E. 67] 14; [D.E. 188] ff
10, 11. The court also has determined that defendants Long, Bills, SMS, and FPI are all liable for
civil conspiracy in the 2017 Case and that defendants Long, Bills, and SMS are all liable for civil
conspiracy in the 2019 Case. See [D.E. 186] 2-3; IIl.E. 86] 2-3; see also [D.E. 166]; [D.E. 188];
rn.E. 67J.
_J

II.

"[I]n calculating an appropriate attorneys' fee award, a district court must first determine the
lodestar amount (reasonable hourly rate multiplied by hours reasonably expended), applying the
Johnson/Barber factors when making its lod(?star determination." Grissom v. Mills Corp., S49 F.3d
313,320 (4th Cir. 2008). Those factors include:
(1) the time and labor expended; (2) the novelty and difficulty ofthe questions raised;
(3) the skill required to properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant litigation; (S) the customary fee
for like work; (6) the attorney's expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability ofth~
attorney; (10) the undesirability of the case within the legal community in which the
suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys' fees awards in similar cases.
Id. at 321. "Although the Court considers all ofthe factors, they need not be strictly applied in every
case inasmuch as all of the factors are not always applicable." Earls v. Forga Contracting, Inc., No.
1:19-CV-00190-MR-WCM, 2020 WL 3063921, at *2 (W.D.N.C. June 9, 2020) (unpublished).
i

Moreover, many ofthe factors are subsumed into the more general inquiry as to the hours reasonably
3

expended and the reasonable hourly rate, and "[d]etermination of the hourly rate will generally be
the critical inquiry in setting the reasonable fee ....". Id. at *3 (quotiition omitted); McAfee v.
Boczar, 738 F.3d 81, 89-90 (4th Cir. 2013); Design Res., Inc. v. Leather Indus. of Am., No.
'

'

1:10CV157,
2016 WL
5477611, at *8 (M.D.N.C. Sept. 29, 2016) (unpublished).
.
.
The court has considered all the Johnson/Barber factors in reaching its determination.
Plaintiffs' counsel have submitted documentation demonstrating that they reasonably spent 3,091
hours through November 2021, in pursuing reliefin these consolidated actions.· In addition, between
December 1 andmid-aftemoononDecember 17, plaintiffs' counsel expended additional time having
a value, per ~eir 2~21 hourly rates, of $24,817.SO to be billed to the plaintiffs. Plaintiffs' counsels'
December 2021 work was associated principally with preparing their attorneys' fees submission.
The court finds that the hours expended are reasonable. The hours were required due to ·the
complexity ofthe case. Furthermore, plaintiffs had to file two separate actions to protect their rights
and defendants obstructed plaintiffs' discovery efforts on multiple occasions. And defendants Bills
and Long, after they became pro se, filed numerous baseless motions, responses, and other requests
for relief that required additional treatment, ~eyond those contemplated in the ordinary course of
;

·,

litigation. Additionally, because these consolidated cases implicate proprietary information and
intellectual property rights, the controversy includes not only monetary relief but also injunctive
relief to protect pl~tiffs' current and future business interests in the relevant market.
)

As for the amount of fees requested, plaintiffs' request is less than or similar to awards in

cases in North Car~lina federal courts where counsel have expended a substantial number of hours
and obtained results similar to those achieved here. See, ~ ' Clark v. Duke Univ., No. 1: 16-CV..

'

1044, 2019 WL 2579201, at *3 (M.D.N.C. June 24, 2019) (unpublished) (awarding $3.SS million
in attorney's fees ~here settlement resulted in $10.65 million gross settlement fund and attorneys
4

expended 7,841.60 attorney hours and 661.30 hours of non-attorney time); Irwin Indus. Tool Co. v.
WortbingtonCylindersWis.. LLC,747F.Supp.2dS68,S97(W.D.N.C.2010)(unpublished)(noting
for 3,447 hours ofwork expended
"complexity ofJ .a.nham' Act cases" and awarding $904,620 in fees
.
in obtaining $13,002,246 damage award). Plaintiffs have submitted declarations from two attorneys
(Chris Graebe and Gary Parsons) who are knowledgeable of the North Carolina market for legal
services. See [D.E. 206,207]; [D.E. 104, 10S]. Theirdeclarationsdemonstratethatthehourlyrates,
plaintiffs' counsel charged are generally below the average hourly rates charged by similarly
- experienced attorneys pursuing similar relief as in this case. Moreover, plaintiffs' documented
hourly rates comport with this court's prior fee determinations. See Lascbkewitsch v. Legal & Gen.
Am., Inc., No. S:1S-CV-2S1-D, 2017 WL 4976442, at *3 (E.D.N.C. Nov. 1, 2017) (unpublished),

aff'd, 72S F. App'x 2S2 (4th Cir. 2018) (per curiam) (unpublished); Raleigh Wake Citizens Ass'n

v. Wake Cnty. Bd. of Elections, No. S:13-CV-607-D, 2017 WL 44007S4, at *6-8 (E.D.N.C. Sept.
29, 2017) (unpublished).
Because defendants are all liable for the same underlying conspiracy that gave rise to
plaintiffs' claims, an award of attorneys' fees is appropriate against all defendants jointly and
severally. The case is "exceptional" under 1S U.S.C. § 1l 17(a) and the record shows that
, defendants "willfully engaged" in unfair acts and practices and made an: "unwarranted refusal" to
fully resolve the matters constituting the basis of.these actions, N.C. Gen. Stat.§ 7S-16.1(1). See
Southwood v. CCDN, LLC, No. 7:09-CV-183-F, 2016 WL 1389S96, at *1 n. 3, 6 (E.D.N.C. Apr.
7, 2016) (unpublished), aff'd sub nom. Taylor v. Bettis, 693 F. App'x 190 (4th Cir. 2017) (per
curiam) (unpublished); Brown v. Cavit Scis., Inc., 230 N.C. App. 460,461,466, 749 S.E.2d 904,
906, 909 (2013). Alternatively, even ifthe court disregarded its judgments for conspiracy, the court
finds that there are adequate independent grounds to support the aw~d of attorneys' fees against all

s

defendants based on the court's factual findings and judgments entered against all defendants. See
[D.E. 148, 163, 166, 170, 186, 188].
"

The court has carefully considered plaintiffs' fee submissions and arguments, and finds that
the hourly rates of plaintiffs' counsel, and the time expended by plaintiffs' counsel in conjunction
with these relatively complex cases, are reasonable. Accordingly, the court finds that plaintiffs are
entitled to an award of fees in the amounts they have requested (including the outstanding amounts
from plaintiffs' prior fee submissions).

m.
In sum, the court GRANTS plaintiffs' motions [D.E~ 205] and [D.E. 103]. The court

AWARDS attorneys' fees in the amount of $1,052,569.70 to plaintiffs from defendants jointly and
severally. Plaintiffs may seek additional attorneys' fees after the court enters a final judgment.
SO ORDERED.- This

n

day of July, 2022.

JxJms~~~~m

United States District Judge

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