Gaston et al v. LexisNexis Risk Solutions, Inc. et al

Filing 143

ORDER granting 89 Motion for Attorney Fees. Defendants shall reimburse Plaintiffs' counsel for reasonable fees in the amount of $17,849.25, on or before September 20, 2020. Signed by Magistrate Judge David Keesler on 8/14/2020. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-009-KDB-DCK
DELORIS GASTON and
LEONARD GASTON,
Plaintiffs,
v.
LEXISNEXIS RISK SOLUTIONS, INC., and
POLICEREPORTS.US, LLC,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiffs’ “Motion For Fees”
(Document No. 89) filed January 24, 2020. This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and is ripe for disposition. Having carefully
considered the motion, the record, and applicable authority, the undersigned will grant the motion.
By the instant motion, Plaintiffs’ counsel seek an award of fees for the drafting of
“Plaintiffs’ Motion To Compel Discovery Responses” (Document No. 72) and Plaintiff’s “Reply
In Support Of Motion To Compel Discovery” (Document No. 77). (Document No. 89, p. 1).
Plaintiffs seek a total of $19,832.50. (Document No. 89-1).
The undersigned notes that the underlying motion to compel was granted on December 20,
2019 and affirmed on March 9, 2020. See (Document Nos. 81 and 95). In affirming the Order
granting the motion to compel, the Honorable Kenneth D. Bell specifically stated that the Court
“affirm[s] the Order’s requirement that Defendants pay Plaintiffs’ reasonable attorneys’ fees.”
(Document No. 95, p. 5).

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In opposition to the instant motion for fees, Defendants first argue that the motion should
be denied for the reasons stated in their Objections to the Order granting the motion to compel.
(Document No. 91) (citing Document No. 82). Defendants’ first argument is unavailing since the
Court rejected Defendants’ Objections and affirmed the Order granting the motion to compel.
(Document No. 95).
Next, Defendants argue that Plaintiffs’ motion for fees fails because there is no evidentiary
support justifying the reasonableness of their fees. (Document No. 91, pp. 2-3). Defendants note
that “[t]he burden is on the party requesting fees and costs to demonstrate, by clear and convincing
evidence, that the fees and costs requested are reasonable.” (Document No. 91, p. 2) (quoting
BAM Capital, LLC v. Houser Transp., Inc., 5:19-CV-105-KDB-DCK, 2020 WL 97458, at *2
(W.D.N.C. Jan. 8, 2020). Defendants conclude that Plaintiffs have not met their burden here
because they have not provided affidavits or other evidence supporting the market rate for similar
work. Id. at 3.
In reply, Plaintiffs acknowledge they are “unaware of the current prevailing rates of other
attorneys in Asheville, North Carolina,” and suggest that the relevant market is actually Charlotte,
North Carolina. Plaintiffs summarize the efforts related to the requested fees, as well as the
impressive credentials of Plaintiffs’ counsel, but still decline to provide any evidence regarding
the reasonableness of their fees and/or the rates of attorneys in the Charlotte market for similar
work. (Document No. 92).
As previously decided, and as affirmed by Judge Bell, an award of fees is appropriate. See
(Document Nos. 81 and 95);

see also Fed.R.Civ.P. 37(a)(5)(A) and (C).

The remaining

determination is simply the amount of fees to be awarded. Unfortunately, Plaintiffs have provided
minimal information or authority to assist the Court’s determination.

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The undersigned finds the case identified by Defendants, BAM Capital, LLC v. Houser
Transp., Inc., to be instructive here. See (Document No. 91). In that decision, Judge Bell included
the following legal authority:
“In Hensley, the Supreme Court noted that ‘[t]here is no precise rule
or formula’ for determining the amount of attorneys’ fees, and that
district courts ‘necessarily [have] discretion’ in such matters.”
Kanawha County Bd., 571 F.3d at 387 (quoting Hensley, 461 U.S. at
436-37). The burden is on the party requesting fees and costs to
demonstrate, by clear and convincing evidence, that the fees and
costs requested are reasonable. EEOC v. Nutri/System, Inc., 685 F.
Supp. 568, 572 (E.D.Va. 1988) (citing Hensley v. Eckerhart, 461
U.S. 424, 433 (1983), Spell v. McDaniel, 824 F.2d 1380, 1402 (4th
Cir. 1987)); see also Bland v. Fairfax Cty., 2011 WL 5330782, at *3
(E.D. Va. Nov. 7, 2011).
In determining a reasonable fee, the court employs the twelve-factor
test set out by the Supreme Court in Hensley:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion
of employment by the attorney due to the acceptance
of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the
client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n. 3 & 434 (adopting same from Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). “The
most useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. This calculation provides an
objective basis on which to make an initial estimate of the value of a
lawyer's services.” Hensley, 461 U.S. at 433. This is the “lodestar”
approach, which is regularly employed in numerous contexts in
which Federal courts are called upon to determine the amount of
reasonable attorneys’ fees. See Kanawha County Bd., 571 F.3d at
387.

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A Plaintiff must “furnish specific support for the hourly rate[s] [it]
proposes.” Nutri/System, 685 F. Supp. at 573. A court must consider
the “prevailing market rates in the relevant community” when
determining what a reasonable hourly fee is in a given case. Rum
Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994)
(quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).

BAM Capital, LLC, 2020 WL 97459, at *2.
In BAM Capital, Judge Bell found that the plaintiff had provided “limited information”
regarding support for the proposed fees and the Court subsequently reduced the requested fees by
25%. Id. at *4. Similarly, in this case Plaintiffs have provided scant support for their rates to assist
the Court’s consideration. See (Document Nos. 89 and 92).
In deciding an appropriate award of fees, the undersigned is also guided by Judge Bell’s
specific direction in this case: “the Magistrate Judge should not calculate a reasonable attorneys’
fee simply based on the relative number of discovery requests where answers or production of
documents were not fully compelled but should focus instead on the overall level of Plaintiff’s
success.” (Document No. 95, p. 5, n.1) (citing Hensley, 461 U.S. at 435 and Fed.R.Civ.P.
37(a)(5)A) and (C)).
Based on the authority set forth above and the deficiencies of the instant motion, as well as
the Court’s acceptance of a few of Defendants’ positions in opposition to the underlying motion
to compel, the undersigned will require a slight reduction in the requested fees. The undersigned
will reduce Plaintiffs’ counsel’s reasonable fees by 10%.
IT IS, THEREFORE, ORDERED that the “Motion For Fees” (Document No. 89) is
GRANTED. Defendants shall reimburse Plaintiffs’ counsel for reasonable fees in the amount of
$17,849.25, on or before September 20, 2020.

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SO ORDERED.

Signed: August 14, 2020

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