Ebersole v. Kline-Perry et al
Filing
111
MEMORANDUM OPINION re: Plaintiff 's Petition for Attorneys' Fees and Costs. Signed by District Judge James C. Cacheris on 9/26/2012. (klau, ) (Main Document 111 replaced on 9/26/2012) (klau, ).
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
RUSSELL L. EBERSOLE, d/b/a
ABERDEEN ACRES PET CARE
CENTER,
Plaintiff,
v.
BRIDGET KLINE-PERRY,
Defendant.
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1:12cv26 (JCC/TRJ)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on the Petition for
Attorneys’ Fees and Costs (the “Petition”) by Plaintiff Russell
L. Ebersole, d/b/a Aberdeen Acres Pet Care Center (“Plaintiff”).
Also before the Court is Plaintiff’s Bill of Costs.
For the
following reasons, the Court will grant in part and deny in part
Plaintiff’s Petition, and will grant Plaintiff’s request in his
Bill of Costs.
I.
Background
This case involves libelous statements made by KlinePerry about Ebersole and his pet care business, Aberdeen Acres
Pet Care Center.
Kline-Perry also allegedly engaged in a
conspiracy to harm Ebersole’s business.
Following local media
reports of an investigation of Ebersole arising from alleged
1
acts of animal abuse at Aberdeen Acres, Kline-Perry then made a
number of statements in which she accused Ebersole of animal
abuse and violating laws pertaining to dog training.
These
statements were published in various e-mails and Facebook
postings.
For example, Kline-Perry posted to her Norsire Farms
Facebook page a letter composed by her and her friend, Charlie
Oren, accusing Ebersole of animal abuse and fraudulent acts, and
asked others to share it.
Kline-Perry also sent a letter to
People for the Ethical Treatment of Animals (“PETA”), asking the
organization to stage a protest regarding Ebersole and Aberdeen
Acres due to the alleged instances of animal abuse.
On December 13, 2011, Ebersole, proceeding pro se,
filed suit in Loudon County Circuit Court.
[Dkt. 1.]
On
January 9, 2012, Defendants timely removed the action to this
Court on the basis of diversity jurisdiction.
[Id.]
Ebersole
subsequently retained counsel [Dkt. 14] and filed an amended
complaint on March 23, 2012 [Dkt. 31].
In the amended
complaint, Ebersole alleged libel, business conspiracy in
violation of Va. Code § 18.2-499, and tortious interference with
a business expectancy.
On July 23, a jury trial commenced.
After the close
of Plaintiff’s evidence, Defendant moved for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50
with respect to the business conspiracy and tortious
2
interference claims as well as a portion of the libel claim. The
Court granted Defendant’s Rule 50 motion as to the tortious
interference claim. The Court also granted Defendant’s Rule 50
Motion as to certain of Kline-Perry’s allegedly libelous
statements. The business conspiracy claim and the libel claim
(as to the remaining allegedly libelous statements) were
ultimately submitted to the jury.
On July 25, 2012, the jury returned a verdict in favor
of Plaintiff. The jury awarded Plaintiff $7,500 in compensatory
damages on his libel claim, $7,500 in compensatory damages on
his business conspiracy claim, and $60,000 in punitive damages.
On July 27, 2012, the $7,500 in compensatory damages awarded to
Plaintiff on his business conspiracy claim was increased to
$22,500 pursuant to his entitlement to treble damages under Va.
Code §§ 18.2-499 and 18.2-500.
Defendant filed a Motion for New Trial or, in the
Alternative, to Alter the Judgment.
his opposition on August 13, 2012.
her reply on August 16, 2012.
[Dkt. 90.]
[Dkt. 99.]
[Dkt. 102.]
Plaintiff filed
Defendant filed
On August 29, 2012,
the Court conditionally denied Defendant’s Motion for New Trial
or, in the Alternative, to Alter the Judgment, dependent on
Plaintiff’s acceptance of a remitted award of punitive damages
of $15,000.
[Dkt. 105.]
On September 5, 2012, Plaintiff
accepted the remitted punitive damages award.
3
[Dkt. 108.]
On August 3, 2012, Plaintiff filed his Bill of Costs
[Dkt. 87], which was not opposed by Defendant.
On August 6,
2012, Plaintiff filed his Petition for Attorneys’ Fees and Costs
[Dkt. 88].
Defendant filed her opposition on August 13, 2012,
[Dkt. 100].
101].
Plaintiff filed his reply on August 15, 2012, [Dkt.
On September 5, 2012, Plaintiff filed a supplemental
filing regarding his Petition for Attorneys’ Fees and Costs
[Dkt. 107].
Plaintiff’s Petition for Attorneys’ Fees and
Related Costs as well as Plaintiff’s request in his Bill of
Costs are now before the Court.
II.
Standard of Review
Under Virginia Code § 18.2-500(a), “Any person who
shall be injured in his reputation, trade, business or
profession by reason of a violation of § 18.2-499, may sue
therefor and recover three-fold the damages by him sustained,
and the costs of suit, including a reasonable fee to plaintiff's
counsel . . . .”
Va. Code § 18.2-500(a).
The party requesting fees bears the burden of
demonstrating the reasonableness 1 of what it seeks to recover.
1
Under Virginia law, in determining a reasonable fee for a conspiracy to harm
a business claim, the fact-finder should consider such circumstances as “the
time consumed, the effort expended, the nature of the services rendered, and
other attending circumstances.” Tazewell Oil Co. v. United Virginia
Bank/Crestar Bank, 243 Va. 94, 112 (Va. 1992) (citing Mullins v. Richlands
Nat’l Bank, 241 Va. 447, 449 (1991)). The Court notes that the
Johnson/Kimbrell’s factors adopted by the Fourth Circuit adequately, if not
more extensively, take into account all the factors pronounced in Tazewell
Oil and Mullins. Given this substantial similarity, the Court will apply the
4
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990); Cook v.
Andrews, 7 F. Supp. 2d 733, 736 (E.D. Va. 1998).
The fee
applicant bears the burden of establishing by clear and
convincing evidence the amount of a reasonable fee in the
circumstances.
See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983).
The requesting party does so by producing evidence,
such as the requesting attorneys’ own affidavits.
“‘In addition
to the attorney’s own affidavits, [however,] the fee applicant
must produce satisfactory specific evidence of the prevailing
market rates in the relevant community for the type of work for
which he seeks an award.’”
Robinson v. Equifax Info. Servs.,
LLC, 560 F.3d 235, 244 (4th Cir. 2009) (quoting Plyler, 902 F.2d
at 277).
“Examples of what constitutes satisfactory specific
evidence ‘sufficient to verify the prevailing market rates are
affidavits of other local lawyers who are familiar both with the
skills of the fee applicants and more generally with the type of
work in the relevant community.’”
Textron Financial Corp. v.
AIC of Manassas, Inc., No. 1:09-cv-1202, 2010 WL 2928789, at *4
(E.D. Va. July 23, 2010) (quoting Robinson, 560 F.3d at 245);
see also Plyler, 902 F.2d at 278.)
“The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
Johnson/Kimbrell’s factors in deciding the reasonableness of Plaintiff’s
request for attorneys’ fees and costs.
5
expended on the litigation multiplied by a reasonable hourly
rate.”
Hensley, 461 U.S. at 433; Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 174 (4th Cir. 1994).
The product of the
reasonable fee and reasonable rate is referred to as the
“lodestar amount.”
(4th Cir. 1986).
See Daly v. Hill, 790 F.2d 1071, 1076 n.2
In the Fourth Circuit, when determining “what
constitutes a ‘reasonable’ number of hours and rate . . . a
district court’s discretion should be guided by the . . . twelve
factors” adopted from Johnson v. Ga. Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974).
Robinson, 560 F.3d at 243-44
(citing Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th
Cir. 1978)).
Those Johnson/Kimbrell’s factors are: (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
6
(12) attorneys’ fees awards in similar cases.
Id.
The Court
need not address all twelve factors independently, because “such
considerations are usually subsumed within the initial
calculation of hours reasonably expended at a reasonable hourly
rate.”
Freeman v. Potter, No. 7:04cv276, 2006 WL 2631722, at *2
(W.D. Va. 2006) (citing Hensley, 461 U.S. at 434 n.9).
“After determining the lodestar figure, the court then
should subtract fees for hours spent on unsuccessful claims
unrelated to successful ones. . . . [O]nce the court has
subtracted the fees incurred for unsuccessful, unrelated claims,
it then awards some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.”
Robinson, 560 F.3d at 244 (internal quotations and citations
omitted).
Because the “degree of success obtained by the
plaintiff is the ‘most critical factor’ in determining the
reasonableness of a fee award, the district court ‘may simply
reduce the award to account for the limited success.’”
Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667, 675 (E.D.
Va. 2004) (quoting Hensley, 461 U.S. at 436-37).
There is no
“precise formula” for making this reduction to the lodestar
amount; however, the court may either “reduce the overall award”
or “identify specific hours that should be eliminated.”
Hensley, 461 U.S. at 436-37.
7
Attorneys’ fees award decisions are within the
discretion of the district court and are reviewed for abuse of
discretion.
See McDonnell v. Miller Oil Co., 134 F.3d 638, 640
(4th Cir. 1998).
Within this framework, the Court will evaluate
the Petition.
III.
Analysis
Plaintiff seeks $131,598.25 in attorneys’ fees.
[Dkt. 88] at 2-3; Supp. Filing [Dkt. 107] at 1.)
(Pet.
In support,
Plaintiff provides summaries of attorneys’ fees that include the
amount of time billed and brief explanations for the time
billed, as well as an affidavit and supplemental affidavit from
his attorney, Thomas H. Roberts, and an expert report from
Dennis Whelan, Esq., attesting to the reasonableness of the fees
incurred.
[Dkts. 88-2, 107-1, 107-2.]
Plaintiff also submits
an affidavit from its attorney, Andrew T. Bodoh, explaining a
clerical error in the time ledgers filed in support of
Plaintiff’s Petition and attesting to the otherwise accuracy of
the ledgers.
[Dkt. 101-1.]
Plaintiff also seeks $ 2,531.16 in
related costs beyond those in its Bill of Costs.
(Pl.’s Pet.
[Dkt. 88] at 3; Pl.’s Supp. Filing [Dkt. 107] at 1.)
In
support, Plaintiff attaches an itemized summary of additional
costs in excess of the Bill of Costs, along with maps and
receipts verifying such travel and lodging expenses.
1.]
[Dkt. 88-
Finally, Plaintiff filed a Bill of Costs seeking to recover
8
$3,953.69.
(Pl.’s Bill of Costs [Dkt. 87].)
The Court will
address the reasonableness of these requests in turn.
A. Attorney Fee Calculation
1. Reasonable Number of Hours
The Court first must determine whether Plaintiff met
his burden of establishing the reasonableness of the number of
hours for which he seeks recovery of fees.
The Court notes that
it was mindful of Plaintiff’s duty to exercise billing judgment
and paid careful attention to identify hours that appear
excessive, redundant, or unnecessary.
See Hensley, 461 U.S. at
437 (“The applicant should exercise ‘billing judgment’ with
respect to hours worked.”).
With these considerations in mind,
the Court will analyze the reasonableness of the hours under
each of the Johnson/Kimbrell’s factors.
a. Factor (1): Time and Labor Expended
The first Johnson/Kimbrell’s factor relates to the
time and labor required in a case.
in attorneys’ fees.
Plaintiff seeks $131,598.25
In support, Plaintiff provides timesheet
entries of the number of hours billed, by what attorneys, for
what hourly charge, and the nature of the work completed.
[Dkts. 88-2, 107-2.]
In his brief and through the affidavit of
his counsel, Thomas Roberts, Plaintiff argues that the time his
counsel spent in litigating this case for which he seeks
attorneys’ fees was reasonable for a number of reasons: the
9
difficulty of proving a conspiracy to harm a business; the
numerous emails, Facebook and other Internet postings,
bankruptcy documents, and financial documents that had to be
reviewed and pieced together to show the narrative and prove
resulting harm in this case; the extensive pleadings by both
parties in the case; and the extra burden on counsel to prepare
and analyze financial materials during discover in the absence
of a financial expert for Plaintiff.
(Pl. Mem. [Dkt 89] at 2,
8.; Roberts Aff. [Dkt. 88-2] at 4-5)
Additionally, Plaintiff
submits the expert report of Dennis Whelan, Esq., in which Mr.
Whelan asserts that the 436.1 billable attorney hours and 37.6
administrative or paralegal hours expended were reasonable
“based on the complexities and difficulties of the case and
especially the conspiracy to harm a business claim.”
(Whelan
Expert Report [Dkt. 88-2] at 2.)
In response, Defendant argues that the time claimed
for the civil conspiracy count was “not reasonable and is
excessive.”
(Gallagher Expert Report [Dkt. 100-1] at 4.)
In
support of this assertion, Defendant makes a number of specific
objections to the time records presented by Plaintiff, arguing
some time entries were unreasonable, unnecessary, inappropriate,
and occasionally unrelated to the litigation.
(Def. Opp. [Dkt.
100] at 8-12; Gallagher Expert Report [Dkt. 100-1] at 4-6.)
i. Block Billing
10
First, Defendant argues that Plaintiff’s counsels’
consistent block billing in the time records was improper.
Defendant argues that such a practice prevents the Court and
defendant from being able to determine how much time is claimed
for specific legal tasks, making it impossible to determine the
reasonableness of the hours worked.
(Def. Opp. [Dkt. 100] at 8-
9; Gallagher Expert Report [Dkt. 100-1] at 4.)
In support,
Defendant cites a few cases criticizing this practice.
See
Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216
(9th Cir. 2010); Robinson v. City of Edmond, 160 F.3d 1275, 1284
(10th Cir. 1998).
In response, Plaintiff asserts that Virginia courts
have recognized block billing as a common, accepted, and
efficient practice.
(Pl. Reply [Dkt. 101] at 9-10 (citing N.
Va. Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 487 (Va. Cir.
Ct. 2010), aff’d 287 Va. 86, 117 (Va. 2012)).)
Plaintiff also
argues that block billing is in line with Hensley, in which the
Court stated that counsel “should identify the general subject
matter of his time expenditures” but was “not required to record
in great detail how each minute of his time was expended.”
461
U.S. at 424.
“Proper documentation is the key to ascertaining the
number of hours reasonably spent on legal tasks.”
EEOC v.
Nutri/System, Inc., 685 F. Supp. 568, 573 (E.D. Va. 1988).
11
While counsel may not need to record their time in “great
detail,” numerous courts in this circuit and elsewhere have
found that block billing, “the practice of group, or ‘lumping,’
several tasks together under a single entry, without specifying
the amount of time spent on each particular task” results in
inadequate documentation.
Project Vote/Voting for America, Inc.
v. Long, 2012 WL 3638546 (E.D. Va. August 22, 2012) (quoting
Guidry v. Clare, 442 F. Supp. 2d 282, 294 (E.D. Va. 2006); see
also Wolfe v. Green, 2010 WL 3809857 (S.D. W. Va. September 24,
2010) (collecting cases).
Such a practice is insufficient “to
permit the court to weigh the hours claimed and exclude hours
that were not ‘reasonably expended.’”
Guidry, 442 F. Supp. 2d.
at 294 (quoting Hensley, 461 U.S. at 433).
Inadequate
documentation practices like block billing or lumping are “a
proper basis for reducing a fee because they prevent an accurate
determination of the reasonableness of the time expended in a
case.”
Guidry, 442 F. Supp. 2d at 294; see also Hensley, 461
U.S. at 433 (“The party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed.
Where
the documentation of hours is inadequate, the district court may
reduce the award accordingly.”).
As a result, when encountering
such a practice, many courts have applied a percentage
reduction.
See Nutri/System, 685 F. Supp. At 577 (applying a
25% reduction in fees); Wolfe v. Green, 2010 WL 3809857 (S.D. W.
12
Va. September 24, 2010) (applying 10% reduction; collecting
cases applying fee reductions for block billing ranging from 10%
to 15%).
In this case, with a few exceptions, each counsel
listed all their daily hours in one time entry per day.
While
many of these daily entries are shorter increments of time, they
still often contain a number of different tasks with no
breakdown provided for each task.
For example, Mr. Bodoth’s
time entry for April 24, 2012 lists 0.40 hours billed for
“Reviewed opposition to motion to quash; drafted notice of
deposition; confirmed notice of deposition with Tomas H.
Roberts, Esquire and gave direction to Sammie Griffith, Legal
Assistant to send; sent same by e-email to opposing counsel.”
(Time Ledgers, Whelan Expert Report [Dkt. 88-2] at 30.)
This
documentation method becomes even more problematic for daily
time entries for larger periods of time.
For example, on May 7,
2012, Mr. Bodoth recorded 7.0 hours for “Prep for case; emails
to client; interview Kieth and call other witnesses; add to
presentation; prep for deposition.”
(Id. at 31.)
Such an entry
prevents the court from assessing the amount and reasonableness
of the time spent for any one of the individual and differing
tasks listed.
After reviewing all the time records provided,
the Court concludes that a 15% reduction in the initial lodestar
13
amount is warranted in light of this consistent practice of
block billing.
ii.
Research on Demurrers
Second, Defendant objects to the time recorded for
research on demurrers, arguing that issues raised by the
demurrer were “entirely straightforward, and should not have
required any research to address.”
(Def. Opp. [Dkt. 100] at 9.)
Plaintiff responds that some work was necessary to research the
law related to suing sole proprietorships and non-entities.
(Pl. Reply [Dkt. 101] at 11.)
Plaintiff also notes that the
time entry in question only recorded two hours of time, and
included drafting a notice of appearance, conferring with cocounsel regarding the case, reviewing documents provided by
Plaintiff, and communicating with Plaintiff in addition to the
research on demurrers.
(Id.)
It does not appear unreasonable to the Court that
counsel spent a short period of time on researching the law and
underlying facts regarding Plaintiff’s attempt to sue Defendant
and her farm, Norsire Farm.
Moreover, any ambiguity in exactly
how long this research took is covered by the Court’s percentage
reduction of fees in response to Plaintiff’s counsels’ practice
of block billing.
iii. Research on Abuse of Process
14
Third, Defendant objects to the “substantial time”
recorded for research of “abuse of process” and asserts that
this research appears to be completely irrelevant to the case
and associated claims.
(Def. Opp. [Dkt. 100] at 9.)
Plaintiff
explains that this research was in response to a statement in
Defendant’s opposition to Plaintiff’s motion to leave to file an
amended complaint, which represented that Plaintiff had abused
the bankruptcy court’s subpoena power.
(Pl. Reply [Dkt. 101] at
10-11 (citing [Dkt. 15] at 2, 4, 8).)
The time entries for this
research total only 1.6 billable hours.
Expert Report [Dkt. 88-2] at 24-25.)
(Time Ledgers, Whelan
The Court finds that
arguments related to this asserted abuse of the bankruptcy
court’s power were a significant portion of the opposition brief
in question, and that the small amount of time billed to
research this issue in order to respond to those arguments was
reasonable.
iv.
Work on Motion to Quash
Fourth, Defendant argues that the 31.8 hours related
to Plaintiff’s motion to quash a subpoena were unreasonable
because Defendant asserts that the subpoenaed records regarding
Plaintiff’s LLC were clearly relevant and because Plaintiff
ultimately withdrew the motion right before the scheduled court
hearing on it.
(Def. Opp. [Dkt. 100] at 9.)
Defendant also
objects to a specific time entry on May 4, 2012 which references
15
a hearing which it asserts never occurred.
Plaintiff counters
that his motion was not frivolous for several reasons: the Court
deemed it important enough to justify both a telephonic
conference on May, 4, 2012 and a second scheduled hearing in
court (the latter of which never occurred); Plaintiff’s eventual
withdrawal of the motion was due to the high costs that this
scheduled hearing would entail; and Defendant’s ultimate
decision to not depose Plaintiff on the LLC records and not use
the documents at trial supports the merits of Plaintiff’s motion
to quash, that the records were irrelevant.
(Pl. Reply [Dkt.
101] at 12.)
The Court finds that Plaintiff’s hours related to this
motion generally were reasonable.
However, in terms of
Defendant’s specific objection to the block of 9.5 billable
hours on May 4, 2012 which in part references a hearing that it
claims was never held, the Court notes that this concern is only
partially addressed by Plaintiff’s explanation regarding the
telephonic hearing.
In addition to time billed for “hearing on
MTQ” and “discuss outcome with client,” the block entry includes
the tasks of “Continue to work on presentation” and “conference
with Thomas H. Roberts, Esquire re jury instructions.”
Given
that the hearing was only a telephonic hearing, the Court
believes that 9.2 hours billed for the listed tasks seems
particularly excessive.
The Court believes that the overall
16
percentage reduction for block billing does not fully resolve
this problem.
As a result, the Court also will apply a 50%
reduction to the hours in this particular time entry.
v. Time on Proposed Stipulations
Fifth, Defendant argues that Plaintiff’s counsel spent
an unreasonable and unnecessary amount of time spent on
preparing proposed stipulations because these stipulations were
duplicative of the requests for admission and were not provided
in time to Defendant to be of any use in litigation.
[Dkt. 100] at 9.)
(Def. Opp.
Plaintiff responds that these stipulations
were an attempt to narrow the issues before the court and the
jury, an attempt in which Defendant chose not to participate.
(Pl. Reply [Dkt. 101] at 12.)
Counsels’ time for preparing and filing the
stipulations is included in a block of billable time of 5.4
hours on May 16, 2012, a block which also includes the task
“discuss settlement” and “talk to witness Cundiff.”
Ledgers, Whelan Expert Report [Dkt. 88-2] at 32.)
(Time
It is
difficult to determine what proportion of time was devoted to
the stipulations versus discussing the settlement and talking to
a witness due to the block billing.
The Court’s decision to
reduce the initial lodestar amount for block billing partially
addresses this issue.
However, it seems appropriate to the
Court to also subtract some hours from this time entry.
17
The
stipulations filed with the court consist solely of exact copies
of the Defendant’s responses to Plaintiff’s requests for
admissions, Defendant’s answer to the amended complaint, and the
amended complaint itself, with the sole modification of thin red
boxes around various statements that Defendant had admitted were
true.
[Dkt. 45, 45-1, 45-2, 45-3, 45-4.]
The 5.4 hours in the
time entry at issue seems to be an excessive amount of time to
compile these documents, add the minor change of the red
outlining to portions of the documents, file them, and also
discuss the settlement and talk to a witness.
As a result, the
Court also will apply a 50% reduction to the hours in this
particular time entry.
vi.
Time On Jury Instructions
Sixth, Defendant asserts that Plaintiff’s counsel
spent an excessive amount of time on the preparation of jury
instructions.
(Def. Opp. [Dkt. 100] at 11-12.)
Defendant
states that there are 26 separate entries on 18 different days
regarding work on jury instructions, for a total of
approximately 30 billable hours.
[Dkt. 100-1] at 5.)
(Id. at 11; Gallagher Report
Moreover, the proposed jury instructions
were over 100 pages and incorporated law from outside
jurisdictions instead of focusing on Virginia law and relying on
Virginia’s Model Jury Instructions.
11-12.)
(Def. Opp. [Dkt. 100] at
As a result, Defendant argues the amount of time spent
18
was unreasonable.
Plaintiff counters that the “thoroughness” of
the jury instructions, accompanied by detailed memorandum where
counsel deemed it appropriate, was “necessary in light of the
legal complexities of this defamation-based conspiracy-to-harma-business claim.”
(Pl. Mem. [Dkt. 101] at 9.)
The Court agrees that the parties are obligated under
Local Rule 51 to research and prepare jury instructions.
The
Court, however, disagrees with Plaintiff’s assessment of the
difficulty of this case, and the resulting asserted need for
such an extensive amount of time and effort spent on jury
instructions and accompanying memorandum.
In addition,
according to the Court’s independent review of the records,
there actually were 28 different entries for work on jury
instructions in part or in whole, for a total of 73 hours
billed.
As with a number of time entries to which Defendant
objects, the issue with the time entries for the jury
instructions is compounded by the practice of block billing.
It
therefore is difficult for the Court to determine precisely the
total time spent solely on these instructions.
appears clear that the time spent was excessive.
Nonetheless, it
The Court
therefore will apply a 50% reduction to the time entries
relating solely to jury instructions, and a 30% reduction to
those related in part to jury instructions.
vii. Time on Motion for Judicial Notice
19
Seventh, Defendant argues that the counsels’ time on
briefing motions related to judicial notice was unnecessary and
did not advance Plaintiff’s interests.
11.)
(Def. Opp. [Dkt. 100] at
Plaintiff responds that although the court ultimately
denied Plaintiff’s motion for judicial notice on the absence of
law, the extensive briefing was necessary because the issue
would have been very helpful to Plaintiff if accepted by the
court.
While the motion itself was not successful, the 15.65
hours expended on the associated briefing does not appear
unreasonable to the Court.
The Court notes that although it
“must consider the overall result of the litigation in terms of
the moving party’s success, no authority exists which persuades
the Court to reduce the fee award for reasonable, but
unsuccessful tactics within the litigation.
The Court’s inquiry
is simply whether the time was reasonably expended.”
Cnty Sch.
Bd. of York Cnty, Va. V. A.L., 2007 WL 756586 (E.D. Va. Mar. 6,
2007); see also Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir.
1998)(noting “a losing argument in support of a successful claim
for relief is fully compensable time”).
viii.
Time Billed for Interoffice
Communications/Conferences; Simple,
Routine Legal Research and Discovery;
Administrative or Clerical Work
20
Eighth, Defendant argues that there are a number of
time entries tasks which categorically “did not advance the
client’s interest or litigation,” are “routinely not charged to
the client,” and need “not be performed by a professional.”
(Gallagher Report [Dkt. 100-1] at 4-5.)
Defendant identifies
such time entries as those for interoffice communications among
the attorneys, simple and routine discovery, simple legal
research as to elements of various torts, and administrative or
clerical work.
(Id.)
In response, Plaintiff asserts that these
objections are not supported by Va. Code § 18.2-500.
The Court agrees with Plaintiff.
Regarding the
interoffice communications and simple discovery and legal
research, the Court finds no authority indicating that fees
billed for such work are not recoverable under Va. Code § 18.2500 as “reasonable attorney fee[s].”
These hours therefore will
not be excluded.
In addition, the Court has reviewed the time entries
alleged to be administrative or clerical work.
Based on this
review, it appears that such tasks were recorded in almost all
occasions by Plaintiff’s counsel’s legal assistant at an
administrative rate.
While courts have noted that it “is
appropriate to distinguish between legal work, in the strict
sense, and investigation, clerical work, compilation of facts
and statistics and other work which can often be accomplished by
21
non-lawyers,” such courts only indicate that this clerical work
should “command a lesser rate,” not that it should be excluded
entirely from the fees to be recovered.
Missouri v. Jenkins,
491 U.S. 274, 288 n. 10 (1989) (quoting Johnson, 488 F.2d at
717).
Moreover, Defendant has provided no authority indicating
that such hours are not recoverable under Va. Code § 18.2-500.
As a result, these hours also will not be excluded.
ix.
29 Hours Billed in One Day
Ninth, Defendant objects to the time records for May
8, 2012, in which counsel billed 29 hours in one day.
(Def.
Mem. [Dkt. 100] at 12; Gallagher Report [Dkt. 100-1] at 5.)
Defendant also argues that even if the time entries were the
result of a mistake regarding the recorded date, the overall
time spent on similar tasks from May 3 through the week of May
7, 2012 were excessive, totaling over 50 hours.
Report [Dkt. 100-1] at 5.)
(Gallagher
In his reply and accompanying
affidavit by counsel, Plaintiff clarifies that the 29 hours
billed in one day were the result of a technical error, in which
time records for multiple days were recorded instead in one day.
(Pl. Reply [Dkt 101] at 11; Bodoh Aff. [Dkt 101-1] at 1-2.)
In
addition, counsel notes in his affidavit that the hours billed
during the surrounding week were significant given the impending
close of discovery and the work associated with the deposition
of Defendant.
(Bodoh Aff. [Dkt 101-1] at 2.)
22
Based on
counsel’s explanation regarding the May 8th time records, and
the Court’s considerations of the nature of the tasks for which
time was billed from May 3 through May 15, 2012, the Court finds
these hours reasonable.
x. Work on Fee Petition
Finally, Defendant challenges the time billed for the
preparation of the petition for attorney’s fees.
Defendant
argues that this time is not properly billed in a request for
attorney’s fees. (Gallagher Report [Dkt. 100-1] at 6.)
Even if
such time is recoverable, Defendant argues that the 19.2 hours
it calculates was billed for this task were excessive.
In Virginia, attorney’s fees may be awarded for postverdict motions in business conspiracy claims.
See Tazewell Oil
Co. v. United Virginia Bank/Crestar Bank, 243 Va. 94 (Va. 1992)
(awarding $47,000 for attorney’s fees and costs incurred
subsequent to trial).
However, reviewing all the time ledgers
submitted, Mr. Roberts spent 2.4 hours on this task, Mr. Bodoh
spent 46.5 hours, their paralegal spent 2 hours, and the legal
assistant spent 0.2 hours, for a total of 51.1 hours overall.
Given counsel’s familiarity with the case, the Court finds that
the amount of time spent on preparing the petition was excessive
and that a 50% reduction of these hours is appropriate.
b. Factors (2), (3), and (9): Novelty and
Difficulty of Questions Raised; Skill Required;
23
Experience, Reputation, and Ability of
Attorneys
Regarding the novelty and difficulty of the questions
raised, Defendant argues that this was a case of average
complexity based on the torts sued for in this case.
Report [Dkt. 100-1] at 4, 6.)
(Gallagher
Defendant asserts that the skill
required to properly perform the legal services was that of a
competent trial attorney, given the average complexity of the
case.
(Id.)
And based on the firm website for Plaintiff’s
counsel, Defendant argues that the experience, reputation, and
ability of Plaintiff’s counsel in handling complex trials and
litigating defamation, conspiracy and tortious interference
claims, indicate that they should have been able to handle this
case while expending less billable time.
(Id. at 4, 6-7 (citing
Roberts Aff., Whelan Report [Dkt. 88-2]).)
Plaintiff counters that this case did have some
“relatively novel” issues of law and some unique difficulties
due to the facts at hand.
(Pl. Mem. [Dkt. 89] at 8.)
Plaintiff
argues that such issues of law included the application of
Virginia Code § 18.2-499 and -500 to defamatory emails and
Facebook postings, as well as the question of judicial notice on
the absence of law and the issue of attempted conspiracy.
In addition, Plaintiff notes the difficulties raised by
(Id.)
Plaintiff’s ongoing bankruptcy, as well as the difficulties
24
arising from Plaintiff’s prior convictions and outstanding
allegations of animal abuse which created a “substantial risk of
jury prejudice” and “serious” complications in proving damages
given the “mixture of fact and fiction in the Defendant’s
posts.”
(Id.; Roberts Aff., Whelan Report [Dkt. 88-2) at 5-6.)
As a result, Plaintiff asserts that the skill required was above
the average skill for defamation-based litigation.
(Id.)
Moreover, in the hearing on this petition, Plaintiff noted that
this was the first jury trial by the lead attorney, Mr. Bodoh.
Based on the claims at issue and the underlying
facts, the Court does not believe that this case was
particularly complicated.
In addition, the Court notes that
Plaintiff’s counsel indicated in his affidavit that the firm
“has earned a reputation for taking on novel and complex
matters” and that Mr. Roberts has “extensive experience in . . .
defamation cases.”
3.)
(Roberts Aff., Whelan Report [Dkt. 88-2) at
However, the Court acknowledges that the fact that this was
the first jury trial for the lead attorney, Mr. Bodoh, weighs in
favor of a slightly higher amount of time billed.
Given these
factors, the Court believes that the over 500 hours billed in
this case (accounting for the additional hours billed post
trial) are somewhat excessive.
The deductions and percentage
reductions made based on the time/effort Johnson/Kimbrall factor
25
in Section III.A.1.a, however, address this concern and are a
sufficient adjustment to the fees claimed.
c. Factor (4): Attorney's Opportunity Costs in
Pressing Instant Litigation
In considering opportunity costs, courts often look to
the drain of resources on a firm during the litigation, the
length of the litigation, and, in some cases, the unpopularity
of the case.
See Spell v. McDaniel, 824 F.2d 1380, 1402 (4th
Cir. 1987) (noting that counsel “incurred substantial
opportunity costs in pursuing the litigation, given the drain of
resources on their four-person firm and the unpopularity of
their case within the community”); United States ex rel.
Thyssenkrupp Safway, 2011 WL 2633902, at *5 (E.D. Va. July 5,
2011) (noting that “time spent does not seem to the Court to
have been so voluminous to have precluded other representation
on the part of [] counsel”);
Walker v. Dovetails, Inc., No.
3:10cv526-HEH, 2010 WL 5878336, at *6 (E.D. Va. Nov. 30,
2010)(noting that since the case was resolved in one week and
the costs associated with discovery were avoided, the case
imposed little opportunity costs on counsel).
Plaintiff argues that his counsel’s firm’s opportunity
costs were “notable” in this case based on the expedited
schedule, the amount of time billed to prosecute the case, and
the small size of the firm (three attorneys) despite these
26
demands.
(Pl. Mem. [Dkt. 89] at 9.)
While Plaintiff asserts
that the undesirability of the case weighs in favor of the
reasonableness of the fees, to be discussed in this opinion
below, he does not raise this as a factor affecting counsel’s
opportunity costs.
Defendant briefly asserts that nothing was
presented revealing anything unusual about this litigation with
regards to opportunity costs.
(Def. Opp. [Dkt. 100] at 6.)
The Court finds that Plaintiff has not alleged
sufficient opportunity costs for this factor to be pertinent to
the attorneys’ fee award.
While there may have been some drain
on this small firm’s resources, the vast majority of the hours
recorded were billed by Mr. Bodoh.
As a result, the most senior
attorney in the firm, Mr. Roberts, and the other attorney in the
firm, Mr. Didlake, were substantially free to take on other
cases.
In addition, given that the case took approximately
seven months, the over 350 hours billed by Mr. Bodoh should not
have significantly constrained him either.
If compressed into
40 billable hour work weeks, these hours account for a little
less than 9 weeks out of the entire seven month period.
Thus,
the opportunity cost factor will not affect the Court’s
determination.
d. Factors (5): Customary Fee for Like Work
The Court will address the hourly rates used by
Plaintiff in calculating the attorneys’ fees in Section III.A.2.
27
e. Factor (7): Time Limitations Imposed by Client
or Circumstances
The seventh factor relates to any time limitations
imposed by clients or circumstances.
Plaintiff argues that
although the time limitations were standard for the Eastern
District of Virginia, the time constraints were somewhat
increased because Plaintiff retained counsel after the case was
initiated.
(Pl. Mem. [Dkt. 89] at 9.)
Plaintiff also notes
that Defendant chose this forum with its accompanying expedited
litigation schedule, and that the previously described
difficulties of the case increased the time pressure counsel
faced.
(Id.)
Defendant responds that as members of the Eastern
District of Virginia, Plaintiff’s counsel should have been able
to handle this case, including meeting any timetables set in
this district.
(Gallagher Report [Dkt. 100-1] at 6.)
The Court does not believe that time limitations in
this case warrant special consideration as “[a]ll litigants are
pushed to trial in this Court.”
Niccoli v. Runyon, 1995 WL
811946, at *2 (E.D. Va. 1995).
The Court does not find that the
delay in retaining counsel significantly changes the general
time constraints that counsel were expected to master as a
matter of course in this district.
Thus, the Court will not
take this factor into consideration in determining the
reasonable attorneys’ fee award.
28
f. Factor (8): Amount in Controversy and Results
Obtained
The eighth Johnson/Kimbrell’s factor discusses the
amount in controversy in the case and the result ultimately
obtained by the prevailing party.
In the amended complaint,
Plaintiff alleged libel, business conspiracy in violation of Va.
Code § 18.2-499, and tortious interference with a business
expectancy.
[Dkt. 31.]
For these claims, Defendant requested
$1,000,000 in compensatory damages and $350,000 in punitive
damages.
(Id.)
During the jury trial, the Court granted
Defendant’s Rule 50 motion as to the tortious interference claim
and some of Defendant’s allegedly libelous statements.
Following the jury trial, Plaintiff prevailed on the business
conspiracy claim and the remaining libelous claim, receiving
$30,000 in compensatory damages (including treble damages for
the conspiracy claim) and $60,000 in punitive damages, the
latter of which was remitted to $15,000.
The Court will further discuss and account for this
factor in part III.A.5 below.
g. Factor (10): Undesirability of Case Within
Legal Community in Which Suit Arose
The tenth factor addresses the undesirability of the
case within the legal community in which the suit arose.
Plaintiff contests that this factor weighs heavily in favor of
29
the attorney’s fees required, arguing that the case was
generally less desirable given the probable difficulty in
proving damages, the high risk of prejudice against Plaintiff
given the allegations and his prior convictions for animal
abuse, the increased business and litigation risk due to
Plaintiff’s bankruptcy, and the limited amount of time for
damages to actualize due to the expedited litigation schedule.
(Pl. Mem. [Dkt. 89] at 11.)
Defendant does not contest this
argument, responding only to acknowledge that there was some
information regarding Plaintiff’s criminal history which may
have made his case less appealing to a jury.
(Gallagher Report
[Dkt. 100-1] at 7.)
As a result, the Court will take the relative
undesirability of the case into consideration when makings its
final determination of attorneys’ fees, noting that this factor
weighs in favor of finding the requested fees reasonable.
h. Factor (12): Attorneys’ Fees Awards in Similar
Cases
In support of the attorney’s fees claimed, Plaintiff
cites four business conspiracy cases awarding attorney’s fees of
amounts around or substantially higher than the amount sought
here.
(Pl. Mem. [Dkt. 89] at 12 (citing Syed v. Zh Techs.,
Inc., 280 Va. 58, 73 (2010) ($644,447.35 in attorney fees and
$31,943.30 in costs awarded, but award reversed when the Supreme
30
court reversed on the conspiracy claim); Tazewell Oil Co. v.
United Virginia Bank/Crestar Bank, 243 Va. 94, 111 (Va. 1992)
(awarding $472,000 in attorney fees); Greenspan v. Osheroff, 232
Va. 388, 397 (Va. 1986) (awarding $90,000 in attorney fees);
Advanced Mgmt. Tech., Inc. v. Overlook Sys. Techs., Inc., 2000
WL 1210889, at *2 (Va. Cir. Ct. May 5, 2000) (awarding $400,000
in attorney fees).
Defendant does not address these citations,
arguing only that in the experience of Defendant’s expert, the
fees claimed are not in accordance with similar cases.
(Gallagher Report [Dkt. 100-1] at 7).
Although the award amounts cited by Plaintiff appear
on their face to support the fees claimed here, a review of the
underlying damages recovered in those cases also is informative.
In all of those cases, the large amounts of attorney’s fees were
billed as part of cases which ultimately recovered anywhere from
$300,000 to over $4,000,000 in damages for the plaintiffs.
While the amount of attorney’s fees billed may not always be
proportional to the recovery gained, the large size of both the
damages and attorney’s fees awarded in these cases do suggest
that these may have been bigger cases requiring more effort to
properly prosecute.
“similar cases.”
Thus, it is not clear that these were
Plaintiff has provided no evidence of the
cases’ similarity other than that they involved a business
31
conspiracy claim.
As a result, the Court finds that this factor
does not weigh in support of the attorney’s fees claimed.
i. Additional Factors
The Court does not believe that the following factors
warrant special consideration in this case: the attorneys’
expectations at the outset of the litigation; and the nature and
length of the professional relationship between attorney and
client.
There is no evidence presented on any of these factors
that the Court finds would affect its attorneys’ fees award
analysis.
2. Reasonable Rates
The prevailing party’s requested hourly rates must be
reasonable.
Rum Creek Coal Sales, 31 F.3d at 175 (citing
Hensley, 461 U.S. at 433).
The determination of the
reasonableness of given rates is a “fact-intensive [one] and is
best guided by what attorneys earn from paying clients for
similar services in similar circumstances.”
Stenson, 465 U.S. 886, 895 n.11 (1984)).
Id. (citing Blum v.
To carry this burden,
a plaintiff can establish the market rate “through affidavits
reciting the precise fees that counsel with similar
qualifications have received in comparable cases; information
concerning recent fee awards by courts in comparable cases; and
specific evidence of counsel’s actual billing practice or other
evidence of the actual rates which counsel can command in the
32
market.”
Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987)
(citations omitted).
This evidence must be submitted “[i]n
addition to the attorney’s own affidavits.”
Plyler v. Evatt,
902 F.2d 273, 277 (4th Cir. 1990).
Plaintiff’s counsel charged the following rates for
the attorneys involved: Mr. Roberts, $365 per hour; Mr. Didlake,
$265 per hour; and Mr. Bodoh, $250 per hour.
Whelan Report [Dkt 88-2] at 18.)
(Roberts Aff.,
Plaintiff provides an
affidavit from his counsel, Mr. Roberts, indicating that the
rates charged are the standard hourly rates for the members of
the firm.
(Id.)
Plaintiff also provides an expert report by
Mr. Whelan in which he states that the billing rates charged in
this case are “reasonable rates considering their individual and
collective skill, education, experience, and the circumstances
of the firm” and in his opinion are “comparable and generally
coincide with the then prevailing market rates of attorneys in
the Eastern District of Virginia of similar skill and for
similar work.”
(Whelan Report [Dkt. 88-2] at 2.)
To support
and illustrate this point, Mr. Whelan also reviewed the United
States Attorney’s Laffey Matrix, Updated Laffey Matrix, 2 and the
2
The Laffey Matrix is used as a guideline for reasonable attorney fees in the
Washington/Baltimore area. See Bd. of Trs., Sheet Metal Workers' Nat'l
Pension Fund v. E. Sign Tech, LLC, 2006 U.S. Dist. LEXIS 72345, at *7 (E.D.
Va., Oct. 4, 2006) (using the Laffey matrix as evidence of reasonableness).
The United States Attorney's Office for the District of Columbia hosts the
matrix on its website. See
http://www.justice.gov/usao/dc/divisions/Laffey_Matrix_2003-2013.pdf. The
rates are adjusted for cost of living and are based on rates found reasonable
33
2011 Law Firm Billing Survey from the National Law Journal.
(Id. at 3, 5-14.)
Plaintiff notes that Mr. Roberts’ fee is 27.7% below
the U.S. Attorney Office’s Laffey Matrix rate for 2012-2013, and
51.5% below the current rate set in Updated Laffey Matrix (20+
years’ experience); Mr. Didlake’s fees are 8.6% below the U.S.
Attorney Office’s Laffey Matrix rate and 30.8% below the current
rate on the Updated Laffey Matrix (4-7 years’ experience); and
that Mr. Bodoh’s rate is 2.0% above the U.S. Attorney Office’s
Laffey Matrix rate and 19.9% below the current rate on the
Updated Laffey Matrix (1-3 years’ experience).
89] at 4.)
(Pl. Mem. [Dkt.
Plaintiff also argues that these matrixes and
surveys are useful objective evidence for comparison because the
rates that Plaintiff’s counsel billed generally are
significantly lower than the rates in those sources.
(Pl. Reply
[Dkt. 101] at 7-8.)
In response, Defendant argues that Plaintiff’s
reliance on the Laffey Matrix and National Law Journal Survey is
misplaced because the Fourth Circuit has not adopted the Laffey
Matrix, and because the rates in both sources reflect
Washington, D.C. and national law firm rates which are not
relevant to the district and the firm at issue here.
(Def. Opp.
in Laffey v. Nw. Airlines, 746 F.2d 4, 24–25 (D.C. Cir. 1985), overruled in
part on other grounds by Save Our Cumberland Mountains, Inc. v. Hodel, 857
F.2d 1516, 1524 (D.C. Cir. 1988).
34
[Dkt. 100] at 7-8.)
In support, Defendant attaches the expert
report of Mr. Gallagher, a local attorney, who states—without
any additional objective evidence—that in his “experience from
handling and trying cases that include the tasks in the present
case, the claimed rates are not in accord with similar cases”
and do not compare or generally coincide with the prevailing
market rates in Northern Virginia, including the Eastern
District of Virginia.
7.)
(Gallagher Report [Dkt. 100-1] at 3, 6,
Mr. Gallagher states that it is his opinion that the
reasonable rates for the attorneys are as follows: Mr. Roberts,
$335 per hour; Mr. Didlake, $200 per hour; and Mr. Bodoh, $200
per hour.
(Id. at 3.)
This Court recognizes, as it has done so recently,
that it is not bound by the Laffey Matrix.
See United States ex
rel. Thyssenkrupp Safway, Inc., No. 1:10cv512, 2011 WL 2633902,
at *5.
The Fourth Circuit has recognized, though, that “the
Laffey matrix is a useful starting point to determine fees” and
that a court “may consider” the matrix despite not being bound
by it.
Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591
F.3d 219, 229 (4th Cir. 2009).
In addition, in this case,
Plaintiff does not request rates in line with those recommended
by the original and updated matrix, but rather rates generally
substantially lower.
Furthermore, Plaintiff did not provide
only the affidavits of its own attorneys and reference the
35
Laffey Matrix.
Plaintiff also provided the “affidavit[] of
other local lawyers who are familiar both with the skills of the
fee applicants and more generally with the type of work in the
relevant community” through the expert report of Mr. Whelan, an
example of the “type of specific evidence that [the Fourth
Circuit] ha[s] held is sufficient to verify the prevailing
market rates.”
Robinson v. Equifax Info. Servs., LLC, 560 F.3d
235, 245 (4th Cir. Va. 2009).
The fact that Defendant’s local
attorney expert disagrees with Plaintiff’s expert’s opinion does
not mean that Plaintiff has not met his burden of proof.
When evaluating fees in the Northern Virginia area,
however, the Fourth Circuit has modified the Laffey matrix and
applied market rates as indicated in the table provided below:
Grissom Table
Title
Years'
Hourly
Experience
Rate
Partner
8–19+
$335.00–
380.00
Associate
6–7
$250.00
Associate
5–6
$250.00
Associate
2–3
$200.00
Associate
1
$180.00
Grissom v. Mills Corp., 549 F.3d 313, 323 (4th Cir. 2008). 3
Moreover, in recent decisions, this Court has assessed the
reasonableness of Northern Virginia attorneys’ rates “bearing in
3
The Court notes that the decision lists the “partner” year range as 18-19+,
but given the previous range ending at year 7, the Court assumes that the
“partner” range listed contained a typographical error and was supposed to
start at the next year, year 8.
36
mind each of these resources, but giving the greatest heed to
the Fourth Circuit’s guidance in Grissom.”
United States ex
rel. Thyssenkrupp Safway, Inc., No. 1:10cv512, 2011 WL 2633902,
at *6-7 (quoting United States, ex rel. Ubl v. IIF Data
Solutions, No. 1:06cv641, 2010 WL 1726767, at *9 (E.D. Va. April
28, 2010).
With regards to Mr. Roberts, Plaintiff seeks fees in
the amount of $365 per hour.
Mr. Roberts has over 26 years of
experience practicing civil litigation, particularly in personal
injury, civil rights, and defamation cases.
Whelan Report [Dkt. 88-2] at 2-3.)
(Roberts Aff.,
The hourly rate for an
attorney with 20+ years of experience in 2011-12 is $495 under
the original Laffey Matrix, $734-753 under the updated Laffey
Matrix, and a maximum of $380 under the Grissom Table.
Moreover, this Court has recently found that $350 and $375 for
counsel with 31 years of experience was reasonable in light of
the Grissom Table.
See BP Products North America, Inc. v.
Stanley, No. 1:09cv1147, 2010 WL 3473791, at *2 (E.D. Va.
September 1, 2010).
Based on these considerations, and the
record in this case, the Court concludes that an hourly rate of
$365 is appropriate for Mr. Roberts.
With regards to Mr. Didlake, Plaintiff seeks fees in
the amount of $265 per hour.
Mr. Didlake has approximately 8
years of experience practicing civil litigation privately and
37
for the government.
3-4.)
(Roberts Aff., Whelan Report [Dkt. 88-2] at
The hourly rate for an attorney with 8-10 years of
experience in 2011-12 is $350 under the original Laffey Matrix,
$540-554 under the updated Laffey Matrix, and a range of $335380 under the Grissom Table.
Thus, the Court concludes that an
hourly rate of $265 is appropriate for Mr. Didlake.
Finally, with regards to Mr. Bodoh, Plaintiff seeks
fees in the amount of $250 per hour.
Mr. Bodoh has only 2 years
of experience practicing civil litigation, and this was his
first jury trial.
3-4.)
(Roberts Aff., Whelan Report [Dkt. 88-2] at
The hourly rate for an attorney with 1-3 years of
experience in 2011-12 is $240 under the original Laffey Matrix,
$305-312 under the updated Laffey Matrix, and $200 under the
Grissom Table.
Based on these considerations, in particular the
Grissom Table, the Court concludes that an hourly rate of $250
was somewhat excessive for Mr. Bodoh and that his rate should be
reduced to $200 per hour.
3. Lodestar Amount
Plaintiff requested $131,598.25 in attorneys’ fees.
After taking into account the Johnson/Kimbrall’s factors as
evaluated above and assessing the reasonableness of the rate,
the Court finds the following adjustments are appropriate.
First, the Court has determined that Mr. Bodoh’s rate should be
reduced to $200 per hour.
Based on the time ledgers submitted
38
along with the initial fee petition and supplemental filing,
Plaintiff seeks to recover fees for a total of 387.85 hours
billed by Mr. Bodoh.
At an hourly rate of $250, this time
accounts for $96,962.50.
Reducing the hourly rate to $200
decreases the total attorney’s fees claimed by $19,392.5.
Second, as set out in Section III.A.1.a.iv, the Court
applies a 50% reduction to the 9.5 hour block entry on May 4,
2012 associated with the motion to quash billed by Mr. Bodoh.
Thus, 4.75 hours are subtracted from Mr. Bodoh’s bill,
decreasing the attorney’s fees by $940 under his adjusted rate
of $200 per hour.
Second, as set out in Section III.A.1.a.v,
the Court applies a 50% reduction to the 5.4 hour block entry on
May 16, 2012 related to work on the proposed stipulations billed
by Mr. Bodoh.
Thus, 2.7 hours are subtracted from Mr. Bodoh’s
bill, decreasing the attorney’s fees by $540 under his adjusted
rate of $200 per hour.
Third, as set out in Section III.A.1.a.vi, the Court
applies a 50% reduction in hours to all time entries devoted
solely to work on the jury instructions and a 30% reduction in
hours to block time entries accounting in part for this task. 4
In entries solely devoted to work on jury instructions, Mr.
Didlake billed 2 hours.
His hours are therefore reduced by 1
4
The Court does not apply this reduction to Mr. Bodoh’s time for May 4, 2012
because this entry has already been sufficiently adjusted by a reduction
related to excessive work on the motion to quash and other tasks in the block
entry.
39
hour, decreasing the total attorney’s fees by $265.
Ms.
Griffith billed 1 hour solely on jury instructions.
Her hours
are therefore reduced by one half hour, decreased the total fees
claimed by $25.
Mr. Bodoh recorded 13.7 hours solely on jury
instructions and 46.8 hours on entries including work on jury
instructions.
Applying a 50% reduction to the former and a 30%
reduction to the latter, Mr. Bodoh’s hours are reduced by 30.25
hours.
This decreases the total fees claimed by $6,050 under
his adjusted rate of $200 per hour.
Fourth, as set out in Section III.A.1.a.x, the Court
applies a 50% reduction to the hours spent on work associated
with the fee petition.
Mr. Roberts spent 2.4 hours on this
task, Mr. Bodoh spent 46.5 hours, their paralegal spent 2 hours,
and the legal assistant spent 0.2 hours.
Applying this
reduction decreases the total fees claimed by $5,258.
These individual deductions decrease the total fees
claimed from $131,598.25 to $99,127.75.
Finally, as discussed
in Section III.A.1.a.i, the Court applies a 15% deduction to the
initial lodestar amount to account for the block billing used by
Plaintiff’s counsel.
This reduces the final lodestar amount to
$84,258.59.
4. Unrelated and Unsuccessful Claims
After calculating the lodestar figure, the “court then
should subtract fees for hours spent on unsuccessful claims
40
unrelated to successful ones.”
Johnson v. City of Aiken, 278
F.3d 333, 337 (4th Cir. 2002).
Defendant argues that Plaintiff’s
total fee request should be substantially reduced to account for
the work that Plaintiff’s counsel performed on his unsuccessful
claim of tortious interference with contract and on his claim
for defamation, on which Plaintiff was successful but there is
no statutory authority for the award of attorney’s fees.
Opp. [Dkt. 100] at 3-7.)
(Def.
To advance this argument, Defendant
relies on the Ulloa case in which the Virginia Supreme Court
stated that the party seeking attorney’s fees had the “burden to
establish to a reasonable degree of specificity those attorney’s
fees associated with” the claim for which attorney’s fees were
recoverable.
Ulloa v. QSP, Inc., 624 S.E.2d 43, 50 (Va. 2006). 5
In response, Plaintiff argues that this burden from
Ulloa is met where, as here, the work that a party performs to
prosecute an unsuccessful claim (or a successful claim for which
attorney’s fees may not be recovered statutorily) also is used
to properly prosecute a successful claim for which attorney’s
fees may be recovered.
(Pl. Reply [Dkt 101] at 5-7.)
Plaintiff
5
Defendant also argues in the alternative that under federal case law, namely
Fox v. Vice, 131 S. Ct. 2205 (2011), Plaintiff has failed to meet the Supreme
Court’s “but for” test in distinguishing between claims for which attorney’s
fees are and are not recoverable. (Def. Opp. [Dkt. 100] at 5-7.)
Defendant’s reliance on Foz is misplaced here. The Supreme Court explicitly
stated that the framework and test in Fox applied to a different situation
than the Hensley framework. Fox, 131 S. Ct. at 2215 n.3. Hensley “govern[s]
fee awards to plaintiffs in cases involving both successful and unsuccessful
claims,” whereas Fox addresses the “authoriz[ation] [of] fees to defendants
to remove the burden of fending off frivolous claims.” Fox, 131 S Ct. at
2215 n.3 (emphasis added).
41
argues that a party meets this burden for a total award of fees
if he shows that the fees for solely prosecuting the claim for
which a fee award is recoverable would have been “substantially
the same . . . whether additional, factually intertwined but
legally distinct counts had been brought.”
Tazewell Oil Co.,
413 S.E.2d 611, 620 (Va. 1992); see also Hensley, 461 U.S. at
434.
The Court finds that no further reduction is necessary
because in this case all of Plaintiff’s claims arose from a
“common core of facts.”
See Brodziak v. Runyon, 145 F.3d 194,
197 (4th Cir. 1998) (quoting Hensley v, 461 U.S. at 435).
The
holding in Ulloa simply places the burden on a party seeking
attorney’s fees to establish that the fees sought are
“associated” with a successful claim.
Ulloa, 271 Va. at 83.
The showing required to meet this burden is consistent with the
analysis set out in Hensley, as well as the test in Tazewell
Oil.
At this point in the Hensley analysis, “the appropriate
inquiry concerns whether the claims on which the plaintiff
prevailed are related to those on which he did not.”
(emphasis added).
Id.
The Court acknowledges that it is well
established that no attorneys' fee should be awarded for time
spent pursuing unsuccessful claims unrelated to successful
claims.
Hensley, 461 U.S. at 434-35.
However, in a case where
the “plaintiff’s claims for relief . . . involve a common core
42
of facts or [are] based on related legal theories,” “[m]uch of
counsel’s time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours expended on a
claim-by-claim basis” and such a case “cannot be viewed as a
series of discrete claims.”
Id. at 435.
Thus, when a case
involves multiple claims sharing a common core of related facts,
“division of hours between claims can be an exercise in
futility.”
Western Insulation, LP v. Moore, 362 Fed. Appx. 375,
381 (4th Cir. 2010) (internal citation omitted).
Moreover, the
Supreme Court has explained that “litigants in good faith may
raise alternative legal grounds for a desired outcome, and the
court's rejection of or failure to reach certain grounds is not
a sufficient reason for reducing a fee.”
435.
Hensley, 461 U.S. at
The test in Tazewell Oil is in accord with this analysis.
In this case, the three claims were all based on the
same core of facts surrounding Defendant’s actions and
statements via email and Internet postings regarding Mr.
Ebersole, his business, and his conduct towards animals.
Although legally distinct causes of action, each was an attempt
to produce the desired outcome of addressing the resulting harm
from this common nucleus of facts.
In addition, the defamation
claim and the defamation-based business conspiracy claim were
based on related legal theories.
Given the related nature of
these three claims, Plaintiff argues persuasively that the
43
amount of work performed on the business conspiracy claim would
have been substantially the same whether or not the other two
claims had been brought.
The claims here were related and
therefore, this Court will not reduce the award for
unsuccessful, unrelated claims.
5. Final Percentage Reduction Based on Degree of
Success
The “degree of success obtained by the plaintiff is
the ‘most critical factor’ in determining the reasonableness of
a fee award, [and] the district court ‘may simply reduce the
award to account for the limited success.’”
Lilienthal, 322 F.
Supp. 2d at 675 (quoting Hensley, 461 U.S. at 436).
“In
accounting for a plaintiff’s limited success, a court should
assess ‘the size of the proposed attorney's fee . . . award in
comparison with the total damage award.’”
McDonnell v. Miller
Oil Co., Inc., 134 F.3d 638, 641 (4th Cir. 1998) (quoting Thomas
v. Peacock, 39 F.3d 493, 506 (4th Cir. 1994), rev'd on other
grounds, 516 U.S. 349 (1996)).
“A reduced fee award is
appropriate if the relief, however significant, is limited in
comparison to the scope of the litigation as a whole.”
461 U.S. at 440 (emphasis added).
Hensley,
These “level of success” and
“the results obtained” factors are especially important in
assessing the reasonableness of the attorneys’ fee award if, as
in this case, the prevailing party succeeded in pursuing some,
44
but not all of his claims for relief.
Id. at 434.
Where “a
plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a
whole times a reasonable hourly rate may be an excessive
amount,” even in cases “where the plaintiff’s claims were
interrelated, nonfrivolous, and raised in good faith.”
Id. at
436.
Plaintiff prevailed on his business conspiracy claim
and defamation claim, but not his tortious interference with
contract claim.
Although Plaintiff ultimately was awarded
$30,000 in compensatory damages and $60,000 in punitive damages
(remitted to $15,000), this was substantially less than the
$1,000,000 in compensatory damages and $350,000 in punitive
damages originally sought.
Moreover, attorney’s fees sought
here ($84,258.59, adjusted down from the originally requested
$131,598.25) are almost twice the amount of the total damages
award ($45,000) received by Plaintiff.
Balancing these
considerations, the Court will apply a 10% reduction from the
final lodestar amount applying “a rough sense of equity to its
knowledge of the litigation at issue” to account for Plaintiff’s
partial success.
Quantum Systems Integrators, Inc. v. Sprint
Nextel Corp., 2009 WL 3423848 at *8 (E.D. Va. 2009) (quoting
Lilienthal, 322 F. Supp. 2d at 675).
45
Reflecting this deduction
of $8,425.86, which is ten percent of $84,258.59, the Court will
award $75,832.73 in attorney’s fees.
B. Bill of Costs and Additional Costs
Plaintiff filed a Bill of Costs seeking to recover
costs authorized under 28 U.S.C. §§ 1821 and 1920, Federal Rule
of Civil Procedure 54, and corresponding Local Rule 54.
87.]
[Dkt.
These costs, totaling $3953.69, cover filing fees, fees
for transcripts, and fees for copies of exhibits, as well as
partially cover witness travel and hotel costs.
Defendant does
not oppose this Bill of Costs.
In addition, Plaintiff requests additional costs in
his Petition for further witness costs and for travel and
lodging costs for Plaintiff and his counsel in the amount of
$2,531.16, citing Va. Code § 18.2-500(a) and Va. Code § 17.1626.
(Pl. Pet. [Dkt. 88] at 3; Pl. List of Additional Costs
[Dkt. 88-1]; Pl. Mem. [Dkt. 89] at 13.)
Plaintiff notes that
under Va. Code § 18.2-500(a), a plaintiff prevailing on a
business conspiracy claim may recover “the costs of suit.”
Plaintiff argues that the costs recoverable under this statutory
provision are not limited to those taxable in federal court.
interpreting the meaning of the statutory phrase, Plaintiff
In
notes that the costs generally taxable in Virginia state court
include “every further sum which the court may deem reasonable
46
and direct to be taxed . . . for any other matter.”
17.1-626.
Va. Code §
(Pl. Mem. [Dkt. 89] at 13.)
In response to Plaintiff’s request for additional
costs beyond those in the Bill of Costs, Defendant argues that
the Virginia Supreme Court has held that the costs that a court
may award under Va. Code. § 18.2-500 are limited to “costs
essential for prosecution of the suit, such as filing fees or
charges for service of process.”
Advanced Marine Enterprises,
Inc. v. PRC, Inc., 501 S.E. 2d 148, 160 (Va. 1998).
[Dkt. 100] at 1-2.)
(Def. Opp.
Plaintiff responds that the travel and
lodging costs requested were essential to the prosecution of the
suit because such costs were necessary for the out-of-state and
out-of-area Plaintiff, witnesses, and counsel to attend the
various hearings, depositions, and trial.
at 1-2.)
(Pl. Reply [Dkt. 101]
In addition, Plaintiff notes that the categories of
costs to which the Virginia Supreme Court objected included
“expert witness fees, and expenses for express mail service,
messengers, meals, law clerk ‘temporaries,’ computer-based legal
research, ‘library research,’ photocopies, parking, taxicabs,
telephone calls, and transcripts.”
(Id. at 1-2 (quoting
Advanced Marine, 501 S.E. 2d 148.)
Plaintiff argues that the
additional costs sought do not fall into such categories.
The Court finds that additional costs sought by
Plaintiff are not recoverable under Va. Code. § 18.2-500.
47
(Id.)
Courts applying the holding in Advanced Marine have refused
recovery of costs like third party witnesses’ travel costs,
Bhagat v. Diamond Information Sys., LLC, 2012 WL 1241200 (Va.
Cir. Ct. 2012), while allowing recovery of costs like court
reporter fees and deposition transcript fees, Martel v. Collins,
47 Va. Cir. 538, at *2 (Va. Cir. Ct. 1999).
The costs at issue
here (travel and lodging costs) are more like the costs to which
the Virginia Supreme Court expressly objected (general
litigation costs, including travel related costs like meals,
parking, and taxis) than the costs which it and subsequent
courts have condoned (filing fees, charges for service of
process, court reporter fees, and deposition transcript fees).
As a result, the Court will not grant Plaintiff any additional
costs or expenses beyond those requested in his Bill of Costs.
IV.
Conclusion
For these reasons, the Court will grant in part and
deny in part Plaintiff’s Petition for Attorneys’ Fees and Costs,
and will grant Plaintiff’s request in his Bill of Costs.
summarize, the Court will award Plaintiff $75,832.73 in
48
To
attorneys’ fees, $3,953.69 in Bill of Costs, and none of the
additional costs and expenses requested in his Petition, for a
total of $79,786.42.
An appropriate Order will issue.
September 26, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
49
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