Thomas v. Amazon.com DEDC LLC et al

Filing 39

ORDER to Set Hearing re 37 MOTION for Default Judgment as to Oger Lee Guess. Signed by Magistrate Judge Shiva V Hodges on 6/15/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Nicole E. Kita,
Plaintiff,
vs.
Oger Lee Guess,
Defendant.

)
)
)
)
)
)
)
)
)
)

C/A No.: 3:14-4408-TLW-SVH

ORDER

This matter comes before the court on the motion of Nicole E. Kita (“Plaintiff”)
for a default judgment against Oger Lee Guess (“Defendant”). [ECF No. 37]. When a
defendant defaults, the court is to accept as true the well-pleaded factual allegations in the
complaint as to defendant’s liability. See Ryan v. Homecomings Fin. Network, 253 F.3d
778, 780–81 (4th Cir. 2001). If the court determines that liability is established, it must
then determine the appropriate amount of damages. Ryan, 253 F.3d at 780–81. Unlike
allegations of fact, the court does not accept allegations regarding damages as true, but
rather makes its own independent determination. See e.g., Credit Lyonnais Secs. (USA),
Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999). In this regard, “[a] default judgment
must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”
Fed. R. Civ. P. 54(c).
The Clerk of Court is directed to notice a hearing for the motion for July 15, 2015
at 10:00 a.m. At the hearing, Plaintiff will be responsible for proving her damages. In
addition, Plaintiff is responsible for proving she is entitled to attorneys’ fees in this

matter. The undersigned notes that Plaintiff has dismissed the federal causes of action in
this case. [ECF No. 35]. Plaintiff has brought only state law causes of action against
Defendant, but Plaintiff’s claim for attorneys’ fees in the complaint is based on federal
law. [ECF No. 1]. Additionally, many of the attorneys’ fees requested by Plaintiff appear
to relate primarily to Plaintiff’s federal causes of action, the causes of actions against
other defendants, or are not specific to the task. [ECF No. 37-2].
Assuming that Plaintiff can show she is entitled to attorneys’ fees, the court
considers the following factors in determining what constitutes a reasonable number of
hours and the appropriate hourly rates (i.e., in calculating the lodestar fee): (1) the time
and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill
required to properly perform the legal services rendered; (4) the attorney’s opportunity
costs in pressing the instant litigation; (5) 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 of the 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. Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978); Jackson v.
Estelle’s Place, LLC, No. 09-1700, 2010 WL 3190697, *4 (4th Cir. Aug. 12, 2010).
Although the court must consider all twelve of the factors, the court is not required to
rigidly apply these factors, as not all may affect the fee in a given case. “[T]hese factors
should be considered in determining the reasonable rate and the reasonable hours, which
2

are then multiplied to determine the lodestar figure which will normally reflect a
reasonable fee.” E.E.O.C. v. Serv. News Co., 898 F.2d 958, 965 (4th Cir. 1990). In
determining whether a rate is reasonable, the court is to consider “prevailing market rates
in the relevant community.” 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)). Further, this court’s
Local Rule 54.02(A) provides that attorneys’ fee petitions must comply with Barber “and
shall state any exceptional circumstances and the ability of the party to pay the fee.”
Local Rule 54.02(A) (D.S.C.).
The Clerk of Court is directed to send by certified mail the following to Defendant
at the address listed in ECF No. 18-1: (1) a copy of this order; (2) the notice for a hearing;
and (3) Plaintiff’s motion for default judgment
IT IS SO ORDERED.

June 15, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

3