BURRS v. UNITED TECHNOLOGIES CORPORATION et al

Filing 35

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 3/29/2019; that the defendants, United Technologies Corporation and Walter Kidde Portable Equipment, Inc., are entitled to recover and shall recover $25,065.08 in attorney's fees and costs from the plaintiff, Jonathan Burrs, and judgment will be entered against the plaintiff in that amount. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JONATHAN R. BURRS,
Plaintiff,
v.
UNITED TECHNOLOGIES
CORPORATION and WALTER
KIDDE PORTABLE EQUIPMENT,
INC.,
Defendants.

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1:18-CV-491

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The Court by previous order dismissed this case––the third Mr. Burrs brought
against his former employer, defendant Walter Kidde Portable Equipment, Inc.––on
claim preclusion grounds, Docs. 23, 24, and found that a sanction of attorney’s fees was
appropriate under Rule 11 of the Federal Rules of Civil Procedure. Doc. 33 at 10–11,
16–17. The Court authorized the defendants to submit evidence as to those fees, which
the defendants have done. Doc. 34. Mr. Burrs had an opportunity to object to the
amount of the requested fees, Doc. 33 at 16–17, and he has not done so. The Court finds
that the hours incurred by defense counsel were reasonable, but will reduce the hourly
rates requested, as described below, and will enter judgment in the defendants’ favor in
the sum of $25,065.08.
Rule 11 speaks in terms of an “appropriate sanction” and specifically authorizes
“reasonable attorney’s fees and other expenses directly resulting from the violation.”

Fed. R. Civ. P. 11(c)(1), (4). What constitutes a “reasonable” fee in the context of Rule
11 “must be considered in relation with the Rule’s goals of deterrence, punishment, and
compensation,” and “‘reasonable’ does not necessarily mean actual expenses and
attorney’s fees.” Fahrenz v. Meadow Farm P’ship, 850 F.2d 207, 211 (4th Cir. 1988).
Using the lodestar method, see In Re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990),
the Court finds that the time incurred by defense counsel was reasonable. It appears that
almost all work was done by Mr. Reynolds, see Doc. 34-2, who is listed as “counsel.” Id.
at 14. A partner, Mr. Briggs, oversaw the matter but spent very little time on the case.
Id. Thus, the record indicates that the defendants appropriately staffed the matter. The
time sheets submitted show that only reasonable tasks were undertaken, that all time was
related to the frivolous claims brought by Mr. Burrs, and that the amount of time spent on
the tasks was reasonable.
Mr. Briggs charged an hourly rate of $585 and Mr. Reynolds charged $275 an
hour. Doc. 34-2 at 3, 6, 14, 17. The record establishes that the hourly rates charged were
reasonable for the Atlanta area, see Doc. 34-1 at ¶ 7, but the relevant market is the Middle
District of North Carolina. See Design Res., Inc. v. Leather Indus. of Am., No.
1:10CV157, 2016 WL 5477611, at *9–10, 13 (M.D.N.C. Sept. 29, 2016) (explaining that
the correct manner of proving reasonable hourly rates is with affidavits of local lawyers
who are familiar with the skill of the fee applicants and with the type of work in the
relevant community). The burden is on the movant to show that a fee request is
reasonable, Morris v. Wachovia Sec., Inc., 448 F.3d 268, 284 (4th Cir. 2006), and
counsel’s own averment as to the reasonableness of an hourly rate in Atlanta, Georgia, is
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not sufficient to establish a reasonably hourly rate in the Middle District of North
Carolina, which is the “relevant legal community.” Certain v. Potter, 330 F. Supp. 2d
576, 589 (M.D.N.C. 2004); accord Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
244 (4th Cir. 2009); Morris v. Lowe’s Home Ctrs., Inc., No. 1:10CV388, 2012 WL
5338577, at *4 (M.D.N.C. Oct. 30, 2012) (Mag. J., memorandum opinion and order).
“In the absence of specific evidence regarding the prevailing market rate, the
Court may establish a reasonable rate based upon its own knowledge and experience of
the relevant market.” Irwin Indus. Tool Co. v. Worthington Cylinders Wis., LLC, 747 F.
Supp. 2d 568, 593 (W.D.N.C. 2010); accord Morris, 2012 WL 5338577, at *5. In 2012,
a Magistrate Judge in this District surveyed attorney’s fee awards in the three judicial
districts in this state and concluded in an employment discrimination case that $350 an
hour was reasonable for a partner’s time and $190 an hour was reasonable for an
associate’s time. Morris, 2012 WL 5338577, at *5.
Unlike in Morris, 2012 WL 5338577 at *3–4, the evidence here indicates that the
partner involved had relatively little responsibility and that the brunt of the work was
done, and responsibility assumed, by Mr. Reynolds. It is the Court’s experience and
recent cases in nearby districts reflect, that hourly rates in this market have risen since
2012, when rates were depressed by the recent financial downtown. Compare Morris,
2012 WL 5338577 at *5, with Triplett v. N.C. Dep't of Pub. Safety, No. 515-CV-00075RLV-DCK, 2017 WL 3840422, at *2 (W.D.N.C. Sept. 1, 2017) (approving a $400 hourly
rate), and Taylor v. N.C. Dep't of Revenue, No. 3:12-CV-00860-MOC-DSC, 2015 WL
4093828, at *3 (W.D.N.C. July 7, 2015) (approving hourly rates of $175 to $385 an hour
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based on experience). In light of these factors, the Court will adopt a slightly higher
hourly rate than that approved by the Magistrate Judge in 2012 for an associate’s time.
The Court will therefore approve Mr. Reynolds’ time at an hourly rate of $220 and
Mr. Briggs’ time at an hourly rate of $350. Multiplied by the reasonable time spent on
the case as reflected in the record, the amount of reasonable attorney’s fees comes to
$25,013, plus costs of $52.08, for a total of $25,065.08.
This amount also matches up well with Rule 11’s goals of deterrence and
punishment. In re Kunstler, 914 F.2d at 522. As previously explained, Mr. Burrs’
conduct was egregious, and he had several opportunities to withdraw his case before the
Court imposed sanctions. See Doc. 33 at 3–4, 8. Each failure to withdraw increased the
defendants’ fees and costs. Two previous monetary sanctions, one of $2,350 in expenses
and attorney’s fees and another of $1,535.75 in costs, did not deter Mr. Burrs. See Text
Order 12/14/2017, Burrs v. Walter Kidde Portable Equip., Inc., No. 16-CV-1149 (Burrs
II); Bill of Costs, Burrs II, No. 16-CV-1149, Doc. 67 (May 3, 2018). Mr. Burrs has made
no showing about his financial circumstances, and there is nothing to indicate that he
does not have the ability to pay the attorney’s fees the defendants incurred because of Mr.
Burrs’ bad faith litigation. Therefore, a significant monetary sanction is appropriate. See
In re Kunstler, 914 F.2d at 523 (listing factors to consider in determining the amount of
an attorney’s fee sanction).
It is ORDERED that the defendants, United Technologies Corporation and Walter
Kidde Portable Equipment, Inc., are entitled to recover and shall recover $25,065.08 in

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attorney’s fees and costs from the plaintiff, Jonathan Burrs, and judgment will be entered
against the plaintiff in that amount.
This the 29th day of March, 2019.

__________________________________
UNITED STATES DISTRICT JUDGE

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