Entegee, Inc. v. Metters Industries, Inc.

Filing 125

MEMORANDUM OPINION and ORDER. Signed by Magistrate Judge Michael S. Nachmanoff on 7/19/2018. (rban, ) (Main Document 125 replaced on 7/19/2018) (rban, ).

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ENTEGEE, INC.,
Plaintiff,
v.
METTERS INDUSTRIES, INC.,
Defendant.

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Civil No. 1:17-cv-499-CMH-MSN

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Statement of Fees and Costs
(Dkt. No. 105-1). On June 6, 2018, Plaintiff submitted this statement to Defendant, pursuant to
the Court’s Order dated May 30, 2018, requesting $27,324.00 in attorney’s fees and $247.50 in
costs expended in connection with Plaintiff’s Motion to Compel and Dr. Metters’ Motion to
Quash. See Non-Party Dr. Samuel Metters’ Opp’n to Plaintiff’s Statement of Fees & Costs
[hereinafter Dr. Metters’ Opp’n] at 1 (Dkt. No. 105); see Ex. A (Dkt. No. 105-1). On June 13,
2018, Dr. Metters filed his Opposition to Plaintiff’s Statement of Fees and Costs (Dkt. No. 105),
arguing that the Court should deny Plaintiff’s request based upon its failure “to comply with the
law requiring documentation and verification of fees and costs.” Id. at 2. Dr. Metters argued
that, in the alternative, Plaintiff is not entitled to the full amount sought in the statement. See id.
at 2. Because the Court finds no basis for Dr. Metters’ attempt to avoid paying fees and costs
and deems Plaintiff’s documentation to be sufficient, it focuses on his latter argument.
I.

Legal Standard

Upon determining that an award of attorney’s fees and costs is appropriate, a court
employs the lodestar method to assess the amount. See Gisbrecht v. Barnhart, 535 U.S. 789, 801
(2002). The lodestar method consists of “multiplying the number of reasonable hours expended

times a reasonable rate.” McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (quoting Robinson
v. Equifax Information Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). To establish such hours
and rate, a court considers the following:
(1) Time and labor expended;
(2) Novelty and difficulty of the questions raised;
(3) 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 n.28 (4th Cir. 1978) (citing Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)). A court thereafter “subtract[s]
fees for hours spent on unsuccessful claims unrelated to successful ones” and “award[s] some
percentage of the remaining amount, depending on the degree of success enjoyed.” McAfee, 738
F.3d at 88 (citations omitted) (quotation marks omitted). Lastly, a court reviews the costs.
II.

Lodestar Calculation

Upon a review of the 12 factors above, the Court finds that factors (2) novelty of and
difficulty of the questions raised, (4) the attorney’s opportunity costs in pressing the instant
litigation, (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, (10) the undesirability of
the case, and (11) the nature and length of the attorney-client relationship are not significant.
Rather, factors (1) time and labor expended, (3) skill required, (5) customary fee, (9) the
experience, reputation, and ability of the attorney, and (12) fee awards in similar cases are
noteworthy. The Court first evaluates Plaintiff’s counsel, John Pennington’s time and labor
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expended and then applies factors 3, 5, 9, and 12 to assess his rate.
A.

Reasonable Time

Plaintiff asserts that Dr. Metters’ filing of a “baseless [M]otion to [Q]uash” and “baseless
opposition” to its Motion to Compel required it to “research, draft, and file three separate briefs
and to undertake the exhaustive effort of searching for, collecting, and reviewing documents that
would contradict the CEO of Metters’ counsel’s false statements.” 1 Pl.’s Response to Dr.
Metters’ Opp’n to Statement of Fees [hereinafter Pl.’s Response to Metters’ Opp’n] at 1–2
(Dkt. No. 110). But as Dr. Metters noted in his Opposition to Plaintiff’s Statement of Fees and
Costs (Dkt. No. 105), Plaintiff’s Motion to Compel and Opposition to the Motion to Quash were
almost identical, see Ex. B (Dkt. No. 105-2), and thus filing the Opposition did not warrant the
amount of time and labor Mr. Pennington, expended—a total of 16.9 hours 2 researching,
drafting, and reviewing documents relevant to both pleadings. Much of the 17-page opposition
consists of background information previously provided to the Court in Plaintiff’s Motion to
Compel, and in the argument section, no new information is provided, see Ex. B at 21 (Dkt. No.
105-2). In fact, several sentences are deleted, which accounts for the minimal distinctions
between the two filings. See id. at 20, 23, 26. The exhibits attached to both pleadings are
identical, with the exception of ten attachments that are primarily email correspondence between
the parties’ counsel or between Mr. Pennington and counsel for Sonabank. Compare Pennington

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Plaintiff asks for $31,459.50 in his reply brief, an increase of $3,888.00 from the amount provided in its statement
of fees. Compare Pl.’s Response to Dr. Metters’ Opp’n at 2 with Ex. A (Dkt. No. 105-1). The $31,459.50 includes
Plaintiff’s attorney’s fees associated with preparing this response. See Pl.’s Response to Dr. Metters’ Opp’n at 18.
Because the Court only granted the award of fees and costs “incurred in relation to Defendant’s Motion to Quash
and Plaintiff’s Motion to Compel[,]” the Court will only consider the amount sought in Plaintiff’s Statement of Fees
and Costs: $27,324.00 in fees and $247.50 in costs for a total of $27,571.50.
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The 16.9 hours consists of 3.3 hours on May 21, 2018 “research[ing] law and review[ing] documents related to
opposition to motion to quash,” 7.5 hours on May 22, 2018 doing the same as well as drafting the opposition, 5.5
hours on May 23, 2018 drafting the opposition and preparing exhibits and a declaration, and .6 hours that same day
reviewing the opposition and exhibits and engaging in additional research. See Ex. A (Dkt. No. 105-1).

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Decl. (Dkt. No. 100) with Pennington Decl. (Dkt. No. 91-1). 3
Accordingly, the Court finds it reasonable to reduce Mr. Pennington’s hours by the time
expended on the Opposition to the Motion to Compel, 16.9 hours. Moreover, Plaintiff’s counsel
spent 31 hours 4 working on the Motion to Compel and 9.2 hours 5 on the Reply, which is higher
than the Court would expect for discovery motions of this nature. It is therefore appropriate to
discount both amounts by one-half, or 15.5 hours and 4.6 hours, respectively. Furthermore, Mr.
Pennington prepared for oral argument on May 29, 2018 for 9.8 hours, which the Court finds
excessive and should be reduced by 8.8 hours.

Consequently, the final total for Mr.

Pennington’s hours is 30.1 hours.
B.

Reasonable Rate

The Court consistently employs the Vienna Metro matrix in determining the customary
rates for attorneys engaged in commercial litigation in northern Virginia. See Vienna Metro LLC
v. Pulte Home Corp., 786 F. Supp. 2d 1090 (E.D. Va. 2011). The matrix provides a range of
hourly rates appropriate for attorneys with varying years of experience:
Years of Experience
Hourly Rate

Range of Hourly Rates in Northern Virginia
1-3
4-7
8-10
$250-435

$350-600

$465-640

11-19

20+

$520-770

$505-820

It is applicable in this case, as it has been in other recent commercial litigation cases before this
Court. See, e.g., Burke v. Mattis, No. 1:16-cv-1256, 2018 WL 2717225, at *3–*4 (E.D. Va. June
4, 2018) (finding Vienna Metro matrix rates reasonable with some downward adjustment); Hair
Club for me, LLC v. Ehson, No. 1:16-cv-236, 2017 WL 1250998, at *8 (E.D. Va. Apr. 3, 2017)
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Even Plaintiff’s Response to Dr. Metters’ Opposition to Statement of Fees is repetitive, incorporating background
information that this Court has now reviewed in multiple pleadings (Dkt. No. 110). See generally Pl.’s Mot. to
Compel Compliance with Subpoena & for Sanctions (Dkt. No. 90); Pl.’s Opp’n to Mot. to Quash (Dkt. No. 94);
Pl.’s Reply in Supp. of Mot. to Compel & for Sanctions (Dkt. No. 96). See also Non-Party Dr. Metters’ Sur-Reply
to Pl.’s Reply to Opp’n to Statement of Fees & Costs at 3 (Dkt. No. 122).
4
This includes entries 6-12 on the first page of the timesheet. See Ex. A at 1 (Dkt. No. 105-1).
5
This includes entries 7-10 on the second page of the timesheet. See id. at 2.

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(holding that lower end of Vienna Metro rates range is reasonable); BMG Rights Mgmt. (US)
LLC v. Cox Commc’ns, Inc., 234 F. Supp. 3d 760, 770–73 (E.D. Va. 2017) (finding Vienna
Metro matrix rates reasonable), vacated on other grounds by 881 F.3d 293 (4th Cir. 2018).
The Vienna Metro matrix accounts for factors (3) skill required, (5) customary fee, (9) the
experience, reputation, and ability of the attorney, and (12) fee awards in similar cases by
providing a stable and consistent rate for attorneys in the Northern Virginia area based on their
skill in commercial litigation cases and years of experience. The Court finds no reason to
deviate from the reasonable range of rates provided in the Vienna Metro matrix.
As Mr. Pennington’s hourly rate, $360.00, is in accordance with the Vienna Metro matrix
based upon his years of experience, the Court finds his hourly rate to be reasonable. See Pl.’s
Response to Metters’ Opp’n at 18; Pennington Decl. ¶ 13 (Dkt. No. 110-8). It falls within the
lower range of the Vienna Metro matrix for attorneys with four to seven years of experience.
C.

Applying Reductions to the Lodestar Figure

After applying the reductions described above, Mr. Pennington is entitled to the
following award:
Requested Hours
75.9

Adjusted Hours
30.1

Hourly Rate
$360.00

Reduced Award
$10,836.00

Accordingly, the final results of the lodestar calculation generate a total of $10,836.00 for
Plaintiff’s attorney’s fees in pursuing the Motion to Compel and opposing the Motion to Quash.
Because the Court finds that Plaintiff was the prevailing party on both motions, it need not
further reduce the lodestar figure.
III.

Costs

Plaintiff also requests $247.50 in costs related to Dr. Metters’ failure to appear for his
first noticed deposition. See Ex. A (Dkt. No. 105-1). The Court determines this cost to be
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reasonable and in accordance with its Order dated May 30, 2018, granting Plaintiff’s Motion to
Compel and denying Dr. Metters’ Motion to Quash (Dkt. No. 103).
IV.

Conclusion

For the foregoing reasons, it is hereby ORDERED that Dr. Metters or his defense counsel shall
pay $11,083.50 to Plaintiff’s counsel within ten (10) days of this date of this Order.

/s/
Michael S. Nachmanoff
United States Magistrate Judge
July 19, 2018
Alexandria, Virginia

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