HeiTech Services, Inc. v. Front Rowe, Inc. et al

Filing 66

MEMORANDUM OPINION re: 61 MOTION for Attorney Fees and Costs by HeiTech Services, Inc. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 6/25/15. (Copies Mailed 6/26/15)(nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
HEITECH SERVICES, INC.,
Plaintiff,
v.
FRONT ROWE, INC., et al.,
Defendants.

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M E M O R A N D U M

1:14cv739 (JCC/TCB)

O P I N I O N

This matter is before the Court on Plaintiff HeiTech
Services, Inc.’s Motion for an Award of Costs and Attorneys’
Fees.

[Dkt. 61.]

For the reasons set forth below, the Court

will grant the motion.
I. Background
On July 1, 2012, Plaintiff HeiTech Services, Inc.
(“HeiTech”) and Defendant Front Rowe, Inc. (“FRI”) entered into
a Subcontractor Agreement (“the Contract”).
breached the Contract.

FRI subsequently

On December 19, 2014, the Court granted

summary judgment in favor of HeiTech against FRI in the amount
of $505,758.63.

(Mem. Op. [Dkt. 42]; Order [Dkt 43]; Clerk’s

Judgment [Dkt. 44].)

On May 26, 2015, the Court granted summary

judgment in favor of HeiTech against individual Defendants Atron
Rowe (“Atron”) and Karen Rowe (“Karen”), holding them
individually liable for the judgment entered against FRI after

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piercing the corporate veil.

(Mem. Op. [Dkt. 56]; Order [Dkt.

57]; Clerk’s Am. Judgment [Dkt. 59].)

In accordance with this

Court’s June 3, 2015 Order [Dkt. 60], on June 10, 2015, HeiTech
filed a Motion for an Award of Costs and Attorneys’ Fees [Dkt.
61] with a Memorandum in Support [Dkt. 62].

The collective

Defendants have not filed a brief in opposition to this request,
and the time to so file has expired.

(See Order [Dkt. 60].)

The Court waives oral argument pursuant to E.D. Va. Local Civil
Rule 7(J).

Accordingly, the motion is ripe for disposition.
II. Legal Standard

“Unless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney’s fees-should be allowed to the prevailing party.”
54(d)(1).

Fed. R. Civ. P.

The decision to award costs “lies within the sound

discretion of the district court.”

Marx v. Gen. Revenue Corp.,

133 S. Ct. 1166, 1172 (2013) (citation omitted); Constantino v.
S/T Achilles, 580 F.2d 121, 123 (4th Cir. 1978).

The Court’s

discretion, however, “is limited to those costs specifically
enumerated in 28 U.S.C. § 1920.”

Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 441 (1987) (Ҥ 1920 defines the
term ‘costs’ as used in Rule 54(d).”).
Conversely, regarding attorneys’ fees, “[w]hen state
law controls, state law governs not only the right to fees, but
also the method of calculating the fees.

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The method of

calculating a fee is an inherent part of the substantive right
to the fee itself and reflects substantive state policy.”

E.I.

DuPont de Nemours & Co. v. Kolon Indus., Inc., 911 F. Supp. 2d
340, 358 (E.D. Va. 2012) (quoting Moore’s Federal Practice §
124.07[3][b] (2008)) (additional citations omitted), abrogated
on other grounds, 748 F.3d 160 (4th Cir. 2014), 564 F. App’x 710
(4th Cir. 2014).

Other commentators have noted that in some

instances, “the judge’s exercise of this discretion is not to be
fettered by state doctrines relating to attorney’s fees,” even
though “the decisions which hold that state law controls ‘appear
analytically sounder.’”

E.I. DuPont de Nemours & Co., 911 F.

Supp. 2d at 358-59 (quoting 10 Charles Alan Wright, Arthur R.
Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and
Procedure, § 2669 (3d ed. 2012)).
III. Analysis
A. HeiTech is entitled to costs.
Pursuant to Rule 54(d)(1) of the Federal Rules of
Civil Procedure, HeiTech is entitled to costs as the prevailing
party for filing fees, copies/printing, and court reporting in
the total amount of $8,483.93.

See 28 U.S.C. §§ 1920(1) (fees

of the clerk and marshal); (2) (fees for transcripts); and (4)
(fees for making copies).
request.

The Court has reviewed HeiTech’s cost

(See Pl.’s Mem. Ex. D [Dkt. 61-4] at 38; Pl.’s Mot.

Ex. E [Dkt. 61-5].)

Without any objection from any of the

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named-Defendants, the Court will award the full amount of costs
in HeiTech’s favor.

Fed. R. Civ. P. 54(d)(1); 28 U.S.C. § 1920.

B. HeiTech is entitled to attorneys’ fees.
“The general rule in this Commonwealth is that in the
absence of a statute or contract to the contrary, a court may
not award attorney’s fees to the prevailing party.”

Carlson v.

Wells, 705 S.E.2d 101, 109 (Va. 2011) (quoting Prospect Dev. Co.
v. Bershader, 515 S.E.2d 291, 300 (Va. 1999)).

Here, under the

terms of the Contract between HeiTech and FRI, which appears to
have been drafted by FRI, the parties agreed that:
Front Rowe, Inc., shall defend, indemnify
and hold [HeiTech], its officers, agents and
employees harmless from and against any and
all
liability,
loss,
expense
including
reasonable attorneys’ fees, or claims for
injury or damages arising out of the
performance of this Agreement but only in
proportion
to
an
to
the
extent
such
liability, loss, expense, attorneys’ fees,
or claims for injury or damages are caused
by
or
result
from
the
negligent
or
intentional acts or omissions of Front Rowe,
Inc., its officers, agents or employees.
(Pl.’s Mem. Ex. A [Dkt. 61-1] at 11 (“the Contract § E.05”).)
Under Virginia law, similar if not identical indemnity
provisions have entitled the prevailing party to recover its
attorneys’ fees from the breaching party.

See, e.g., Chesapeake

& Potomac Tel. Co. of Va. v. Sisson & Ryan, Inc., 362 S.E.2d
723, 728-29 (Va. 1987).

Accordingly, as a matter of Virginia

law, which governs the breach of contract action in this

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diversity case, HeiTech as the prevailing party is entitled to
recover its attorneys’ fees from the breaching party.

The only

question that remains is whether HeiTech’s $134,640.00 fee
request is reasonable.
When “deciding whether a party has shown the
reasonableness of the fees, the fact finder may consider, inter
alia, the time and effort expended by the attorney, the nature
of the services rendered, the complexity of the services, the
value of the services to the client, the results obtained,
whether the fees incurred were consistent with those generally
charged for similar services, and whether the services were
necessary and appropriate.”

West Square, LLC v. Commc’n Techs.,

Inc., 649 S.E.2d 698, 702 (Va. 2007).

This is similar to the

“lodestar analysis” used by the Fourth Circuit for cases
involving federal questions.

See Robinson v. Equifax Info.

Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009) (citing Barber
v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)
(adopting twelve factors set forth in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other
grounds by, Blanchard v. Bergeron, 489 U.S. 87 (1989))).

Each

of the twelve factors is briefly addressed in turn:1

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In support of its motion for attorneys’ fees, HeiTech attached
the Declaration of Craig C. Reilly and the Declaration of Paul
W. Mengel III. (See Pl.’s Mot. Ex. B [Dkt. 61-2] Reilly Decl.;
Pl.’s Mot. Ex. C [Dkt. 61-3] Mengel Decl.) To prepare his
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(1) Time and labor expended: HeiTech’s attorneys have
submitted affidavits, see supra n.1, which show they have
invested a total of 430 hours on this case.

The time spent by

the attorneys was not unreasonable considering the nature of the
case, discussed below, and in light of the affidavits provided.
(2) Novelty and difficulty of the questions raised:
The case did not present novel questions of law, but it did
involve government contracts law and the law of corporations,
including piercing the corporate veil.

Accordingly, the Court

finds this case was moderately complex, but not significantly or
overly complex.
(3) Skill required to properly perform the legal
services rendered: Similarly, because the case did not present
novel questions of law or fact, the case did not require
extraordinary or specialized skill, other than familiarity with
corporate and government contracts law.

Declaration, Mr. Reilly interviewed HeiTech’s principal
attorney, Mr. Mengel, reviewed the hourly timesheet for this
matter, reviewed online biographies of the lawyers on the case,
and reviewed certain pleadings to determine the complexity of
the action. (Reilly Decl. ¶ 12.) Mr. Reilly also applied the
federal “lodestar” amount to the reasonableness of HeiTech’s fee
request in accordance with Robinson v. Equifax Info. Servs, LLC,
560 F.3d 235, 243-44 (4th Cir. 2009). (Id. at ¶ 13.)
Ultimately, Mr. Reilly concluded that “the hourly rates charged
by [HeiTech’s attorneys] in this case are reasonable and within
the prevailing market rates for the legal services provided.”
(Id. at ¶ 25.) HeiTech attaches the statement of attorneys’
fees. (Pl.’s Mot. Ex. D [Dkt. 61-4].)
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(4) Attorneys’ opportunity costs in pressing the
instant litigation: The attorneys and staff who worked on this
case had other work available to them during the pendency of
this litigation to which they could have devoted their time and
attention, had they not been otherwise occupied with this
litigation.

(Mengel Decl. ¶ 6.)

(5) Customary fee for like work: HeiTech has cited,
through attached affidavits, the range of hourly rates for
similar work in Northern Virginia, which is accepted and adopted
by the Court as customary for this type of litigation.
(6) Attorneys’ expectations at the outset of the
litigation: There is no evidence regarding the attorneys’
expectations at the outset of the litigation.
(7) Time limitations imposed by the client or
circumstances: There is no evidence regarding any time
limitations imposed by the client or circumstances for this
case.
(8) Amount in controversy and results obtained:
HeiTech sought over $500,000 in damages.

HeiTech obtained the

best result possible: the Court granted summary judgment in its
favor in the full amount of $505,758.63, jointly and severally,
against the corporation and the individual defendants.

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(9) Experience, reputation and ability of the
attorneys: HeiTech’s counsel are all exceptional in this regard.
(Reilly Decl. ¶ 22.)
(10) Undesirability of the case within the legal
community in which the suit arose: There is no evidence that
this case was undesirable within the legal community of Northern
Virginia.
(11) Nature and length of the professional
relationship between the attorneys and client: The attorneys’
law firm has performed legal services for HeiTech since 2008,
and the services rendered have included representation in
litigation, general government contract and business matters,
human resources issues and employment matters.

(Mengel Decl. ¶

7.)
(12) Attorneys’ fees awards in similar cases: There is
no evidence regarding fees awarded for similar cases; however,
HeiTech cites multiple cases from this district where the same
reasonableness analysis was employed and adopted.

(Reilly Decl.

¶ 5.)
Accordingly, in light of the factors discussed above
and the application of those factors to the work performed in
this case, the Court finds that HeiTech’s attorneys’ fee request
of $134,640.00 is reasonable.

Therefore, the Court will grant

HeiTech’s motion and enter the award.

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IV. Conclusion
For the foregoing reasons, the Court will grant
Plaintiff’s motion for an award of costs and attorneys’ fees.
An appropriate Order shall issue.

June 25, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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