M.D. Russell Construction, Inc. v. Consolidated Staffing, Inc. et al

Filing 130

ORDER denying 122 Motion for Attorney Fees. Signed by District Judge Terrence W. Boyle on 8/29/2024. (Stouch, L.)

IN THE UNITED STATES DISTR ICT COURT
FOR THE EASTERN DJ STRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No . 7: I 9-CY-221-BO

M.D. RUSSELL CONSTRUCTION , INC. , )
Plaintiff,
)
)
V.
)
)
CONSOLIDATED STAFFING, INC. ,
)
Defendant.
)

ORDER

This cause comes before the Court on defendant Consolidated Staffing ' s supplemental
motion for attorney fees . [DE 122). Plaintiff has responded, defendant has replied, and the motion
is ripe for ruling. For the reasons that follow, defendant' s motion is denied.
BACKGROUND
The Court presumes familiarity with the general factual and procedural background of the
case. On March 23 , 2022, the Court granted defendant' s motion for summary judgment, denied
plaintiff's motion for partial summary judgment, and directed entry of judgment in defendant' s
favor. [DE I 03). Judgment entered the same day. [DE I 04). Defendant filed a motion for attorney
fees after which plaintiff noticed a direct appeal. The Court denied the motion for attorney fees
without prejudice to refiling following issuance of the mandate of the court of appeals. [DE 118) .
By unpublished opinion fi led December 20, 2023 , the court of appeals affirmed this Court' s
judgment. [DE 119). Mandate issued on January 11 , 2024. [DE 121]. Defendant thereafter filed
the instant supplemental motion for attorney fees pursuant to Fed. R. Civ . P. 54(d)(2) and N .C.
Gen. Stat.§ 75-16.1. [DE 122]. Defendant seeks $107,237.18 in attorney fees arising from the

appeal, $376,039.21 in attorney fees ansmg from the district court case, and $7,762.07
representing contractual attorney fees. 1
DISCUSSION
There is "a general practice of not awarding fees to a prevailing party absent explicit
authority." Key Tronic Corp. v. United States, 5 11 U.S. 809,819 (1994). Here, defendant seeks an
award of attorney fees under North Carolina' s Unfair and Deceptive Trade Practices Act
(UDTPA), which permits a prevailing party to recover reasonable attorney fees
upon a finding by the presiding judge that:
(I) The party charged with the vio lation has wi llfull y 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; or
(2) The party instituting the action knew, or should have known, the action was
frivolous and malicious.
N.C. Gen. Stat. § 75-16.1 (emphas is added).
"A claim is frivolous if a proponent can present no rational argument based upon the
evidence or law in support of it. A claim is malicious if it is wrongfu l and done intentionally
without just cause or excuse or as a result of ill will." Blyth v. McCrary, 184 N.C. App. 654, 663
n.5 (2007) (internal quotations, citations, and alterations omitted). In awarding attorney fees under
§ 75-16.1 , a court's decision must be supported by findings of fact. Id. at 664 . Whether to award
attorney fees under the UDTPA is w ithin the court' s discretion. Birmingham v. H & H Home
Consultants & Designs, Inc. , 189 N.C. App. 435 , 442 (2008)
Defendant argues that plaintiff knew or shou ld have known that its action was frivolous
and malicious, and that defendant is therefore entitled to its reasonable attorney fees . Defendant
1

The $7,762.07 in contractual attorney fees , representing 20% of the amount awarded to defendant
on its counterclaim, has been awarded in the judgment. [DE I 04]. The Court has not been presented
with a basis for awarding this amount again in a separate attorney fee judgment, and thus declines
to do so.
2

contends that because plaintiffs UDTPA claim overlapped with its other claims, such that they
were inextricably interwoven, the Court shou ld award defendant all of its reasonable defense fees
and not limit its award of fees to its successfu l defense against plaintiff s UDTPA claim. See

Laschkewitsch v. Legal & Gen. Am. , Inc. , No. 5: l 5-CV-251-D, 20 17 WL 4976442 , at *3 (E.D.N.C.
Nov. 1, 2017).
Here, the Court denied defendant' s motion to dismiss plaintiffs UDTPA claim under Fed.
R. Civ. P. 12(b)(6) after conducting a hearing on the motion. The court of appeals later upheld this
Court' s determination that Virginia, rather than North Caro lina, law app lied to plaintifrs unfair
and deceptive trade practice claim. [DE 119 at 15-16]. Thus, despite that it was at a later stage
determined to be " legally insufficient[,]" the Court does not conclude that the UDTPA claim was
frivolous. Hatteras/Caho Yachts, LLC v. MIY Epic, No. 4: I 7-CV-00025-BR, 2021 WL 5855818,
at *2 (E.D .N .C. Dec. 9, 2021); see K-Flex USA, L.L.C. v. Armacell, LLC, No. 5:17-CV-279-BO,
2019 WL 1028521 , at *2 (E.D.N .C. Mar. 4, 20 19). Because the Court has determined that
plaintiffs UDTPA claim was not frivolous , it need not decide whether the claim was also
malicious. The Court thus, in its discretion , denies defendant' s request for attorney fees under the
UDTPA.
CONCLUSION
Accordingly, for the foregoing reasons, defendant' s suppl emental motion for attorney fees
[DE 122] is DENIED.

SO ORDERED, this

;

~

day of August 2024.

T
NCE W. BOYL
UNITED STATES DISTRICT J

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