VIZANT TECHNOLOGIES, LLC et al v. WHITCHURCH et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 3/7/17. 3/7/17 ENTERED AND COPIES MAILED TO UNREP & GOLD, EMAILED.(rf, ) Modified on 3/7/2017 (rf, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VIZANT TECHNOLOGIES, LLC,
JULIE P. WHITCHURCH, et al.
March 7, 2017
On February 13, 2017, the court found that defendant
Julie P. Whitchurch is in civil contempt for failure to comply
with the court’s January 8, 2016 permanent injunction in favor
of Vizant Technologies, LLC, her former employer, and its chief
executive officer Joseph Bizzarro.
The injunction permanently
enjoined Whitchurch from taking any action whatsoever to cause
or discourage any person or entity from doing business with,
investing in, or maintaining an employment relationship with
(Doc. # 315).
The Court of Appeals had affirmed the
injunction on January 13, 2017.
See Vizant Technologies, LLC v.
Whitchurch, No. 16-1178 (3d Cir. Jan. 13, 2017).
monetary civil contempt sanctions upon Whitchurch until she
purges herself of contempt.
On February 16, 2017, plaintiffs Vizant and Bizzarro
filed a motion seeking attorneys’ fees and costs in connection
with preparation of their November 28, 2016 motion for an Order
to Show Cause (Doc. # 304), preparation for the February 2, 2017
Show Cause Hearing, and attendance of the February 2, 2017 Show
Whitchurch did not appear at the Show Cause
Hearing and has not filed a response to the plaintiffs’ pending
motion for attorneys’ fees and costs.
If successful in civil contempt proceedings, the
complainant is entitled to costs of investigating the violation
of the court’s order, preparing for and conducting the contempt
proceeding, and attorneys’ fees.
See Gompers v. Bucks Stove &
Range Co., 221 U.S. 418, 447 (1911); see also Robin Woods Inc.
v. Woods, 28 F.3d 396, 400 (3d Cir. 1994).
The award of
attorneys’ fees places the prevailing party in the position it
would have been had the contemnor complied with the court order.
Robin Woods Inc., 28 F.3d at 400; see also Halderman by
Halderman v. Pennhurst State School & Hosp., 49 F.3d 939, 941
(3d Cir. 1995).
Plaintiffs are “prevailing parties” for the
purpose of attorneys’ fees “if they succeed on any significant
issue in litigation which achieves some of the benefit of the
parties sought bringing suit.”
Hensley v. Eckerhart, 461 U.S.
424, 433 (1982) (quoting Nadeau v. Helgemoe, 581 F.2d 275,
278-79 (1st Cir. 1978)).
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Vizant and Bizzarro commenced this now long-enduring
litigation against Whitchurch on January 29, 2015.
January 8, 2016, the court granted summary judgment on liability
in favor of Vizant and Bizzarro and against Whitchurch on claims
of defamation and tortious interference with existing and
prospective business relationships.
(Doc. # 213).
also granted summary judgment on liability in favor of Vizant
and against Whitchurch on certain breach of contract claims, as
well as misappropriation of trade secrets under the Delaware
Uniform Trade Secrets Act, Del. Code Ann. tit. 6, §§ 2001
(Doc. # 213).
On the same day, the court entered a
permanent injunction against Whitchurch.2
(Doc. # 214).
Plaintiffs filed a Motion for an Order to Show Cause on
November 28, 2016 for Whitchurch to show cause why she should not
be held in civil contempt for violation of the court’s
January 8, 2016 permanent injunction.
(Doc. # 304).
held a Show Cause Hearing on February 2, 2017.
The court found
1. We granted summary judgment in favor of Whitchurch on
plaintiffs’ claims of: violations of the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968; abuse of
process; conversion; fraud; certain breach of contract claims;
and civil conspiracy. Vizant has since withdrawn its claim
under the Delaware Uniform Trade Secret Act. (Doc. # 213).
2. The court held a non-jury trial on the issue of damages on
March 2, 2016. The court thereafter entered judgment against
Whitchurch and in favor of Vizant on March 22, 2016 in the amount
of $2,256,427.12 for compensatory damages, attorneys’ fees, and
costs. (Doc. # 274). It entered judgment against Whitchurch and
in favor of Bizzarro in the amount of $500,000 in damages.
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that Whitchurch is in contempt of the permanent injunction and
imposed monetary civil contempt sanctions upon her until she purges
herself of contempt.
(Doc. # 315).
Thus, Vizant and Bizzarro are
“prevailing parties” in this action.
We next determine what fee is “reasonable” using a
lodestar calculation, which requires us to multiply “the number
of hours reasonably expended on this litigation . . . by a
reasonable hourly rate.”
Hensley, 461 U.S. at 433; see also
United Auto. Workers Local 259 Soc. Sec. Dep’t v. Metro Auto
Ctr., 501 F.3d 283, 290 (3d Cir. 2007).
This calculation must
exclude from consideration “hours that were not reasonably
Hensley, 461 U.S. at 433-34 (citation omitted).
Significantly, we may “reduce the number of hours claimed by the
number of hours ‘spent litigating claims on which the party did
not succeed and that were “distinct in all respects from” claims
on which the party did succeed.’”
Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d
897, 919 (3d Cir. 1985)).
The party seeking fees bears the burden of
demonstrating that it is entitled to an award and “should
maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims.”
Hensley, 461 U.S.
The party should submit evidence of prevailing market
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rates in the community for attorneys of equivalent skill and
experience in order to establish the reasonableness of the fees.
Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984).
Once we have calculated the lodestar amount by
multiplying the number of hours reasonably expended by counsel’s
reasonable rate, “[t]here remain[s] other considerations that
may lead the district court to adjust the fee upward or
Hensley, 461 U.S. at 434.
Vizant and Bizzarro have
sought no upward adjustment, and Whitchurch, who has not
responded to the motion, has not requested a downward
We “cannot decrease a fee award based on factors
not raised at all by the adverse party.”
Rode v. Dellarciprete,
892 F.2d 1177, 1183 (3d Cir. 1990) (quoting Bell v. United
Princeton Props., Inc., 884 F.2d 712, 720 (3d Cir. 1989)).
Accordingly, our task requires us to determine “the
number of hours reasonably expended” on the November 28, 2016
motion for an Order to Show Cause, preparation for the February
2, 2017 Show Cause Hearing, and attendance of the February 2,
2017 Show Cause Hearing.
See Hensley, 462 U.S. at 433.
determining “the number of hours reasonably expended on the
litigation,” we exclude any “excessive, redundant, or otherwise
unnecessary” hours as well as those “spent litigating claims on
which [Vizant and Bizzarro] did not succeed and that were
distinct in all respects from claims on which [Vizant and
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Bizzarro] did succeed.”
Hensley, 461 U.S. at 433-34; Rode, 892
F.2d at 1183 (citations omitted).
Vizant and Bizzarro ask us to award them $4,320.99 in
attorneys’ fees and costs.
In support of their petition for
fees, they attach to their motion the invoices of Kang Haggerty
for work performed by three individuals: Edward Kang, 3 “JEP” or
“Jason E. Powell,” and “ML.” 4
The invoices are detailed “in a
manner that . . . enable[s] [the court] to identify distinct
See Hensley, 461 U.S. at 437.
For example, the
invoices specify the type of work performed, the issue that was
the subject of the work, and the individual who performed the
Vizant and Bizzarro’s submission makes it possible for
the court to separate the work performed by Kang Haggerty for
each of the issues as to which Vizant and Bizzarro seeks fees.
The only costs sought after by Vizant and Bizzarro is
$1.99, the cost of postage for mailing Whitchurch a copy of the
November 28, 2016 Show Cause motion.
This sum is reasonable.
We find that the fee petition adequately documents the
hours claimed and adequately identifies hours expended on each
3. Edward Kang, one of the lead attorneys in this action, is a
Managing Member of Kang Haggerty & Fetbroyt, LLC and has been in
practice since 2001.
4. Plaintiffs’ brief has not identified the name or position of
“ML” or “JEP” at Kang Haggerty. Based on our March 22, 2016
Findings of Fact and Conclusions of Law (Doc. # 272) related to
the judgment entered against Whitchurch, we conclude that “ML”
is Melissa Lagoumis and “JEP” is attorney Jason Powell.
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See Hensley, 461 U.S. at 433-34; see also Rode,
892 F.2d at 1183.
Based on evidence submitted by Vizant and
Bizzarro, Kang “reasonably expended” 4.5 hours on this
litigation, Powell “reasonably expended” 8.4 hours on this
litigation, and ML “reasonably expended” 0.5 hours on this
Our next step in the lodestar calculation is to
multiply this total number of hours “by a reasonable hourly
Hensley, 461 U.S. at 433.
The reasonableness of an
attorney’s rate is judged according to the “prevailing market
rates in the relevant community.”
See Blum, 465 U.S. at 895.
Vizant and Bizzarro have submitted evidence of the
prevailing market rates in Philadelphia, where Kang Haggerty is
located and where this litigation took place.
identifies that Kang billed a rate of $485 per hour in 2016 and
currently bills a rate of $525 per hour in 2017.
demonstrate that Powell and Lagoumis contributed to the work
that makes up the hours total.
The attached invoices, and not
the brief, identify their hourly rates.
In 2016, Powell billed
at an hourly rate of $225 and in 2017 he billed at a rate of
Lagoumis billed at a rate of $125 per hour in 2016.
We conclude that the hourly rates of Kang Haggerty are
appropriate in light of the prevailing market rates in
It was appropriate for Vizant and Bizzarro, in
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calculating their fee request, to multiply the reported numbers
by these rates.
The lodestar sum is calculated by the number of
hours multiplied by the reasonable rate.
Hensley, 461 U.S. at
Kang reported one hour in 2016 at a rate of $485 and 3.5
hours in 2017 at a rate of $525.
Powell reported 2.7 hours in
2016 at a rate of $225, 1.3 hours in 2017 at a rate of $225, and
4.4 hours in 2017 at a rate of $235.
hours in 2016 at a rate of $125.
Lagoumis reported 0.5
The total sum of the
individual hours multiplied by the individual rates is $4,319.
This is consistent with the success achieved by Vizant and
Bizzarro, which accomplished its goal of the court finding
Whitchurch in civil contempt for her violation of the permanent
See Hensley, 461 U.S. at 438.
We need not “adjust
the fee upward or downward” any further, as our initial
calculation of the hours “reasonably expended” did not include
hours spent on unrelated issues and Vizant and Bizzarro provided
adequate documentation of Kang Haggerty’s billing.
See id. at
In sum, we will award Vizant and Bizzarro attorneys’
fees in the amount of $4,319 and costs in the amount of $1.99,
for a total award to Vizant and Bizzarro of $4,320.99.
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