Lismont v. Alexander Binzel Corporation et al
Filing
125
MEMORANDUM OPINION AND ORDER granting in part 118 Motion for Attorney Fees. Lismont is awarded $33,469 in attorneys' fees and $404.01 in costs, for a total award of $33,873.01. A copy of this order was forwarded to all counsel of record on 9/18/14. Signed by Magistrate Judge Lawrence R. Leonard and filed on 9/18/14. (tbro)
FILED
UNITED STATES DISTRICT COURT
SEP 1 8 2014
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CLERK, U.S. DISTRICT! COURT
•
,-•••
' H K VA
HEDWIG LISMONT,
Plaintiff,
CaseNo.:2:12-CV-592
v.
ALEXANDER BINZEL CORP., et al,
Defendants.
MEMORANDUM OPINION AND ORDER
On March 12, 2014, the Court granted Plaintiffs Motion for a Protective Order, ECF No.
80, and then on May 1, 2014, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) ("Rule
37"') directed Plaintiff Hedwig Lismont ("Lismont") to file "a motion substantiating its costs and
fees pursuant to the factors enumerated in Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
243-44 (4th Cir. 2009)."
ECF No. 112 at 7. Now before the Court is Lismonfs Motion
Substantiating His Attorneys* Fees and Costs, ECF No. 118, filed on July 23, 2014. Defendants
Alexander Binzel Corp., et al. ("Binzel") filed a timely response on August 6, 2014. ECF No.
120, and Lismont replied on August 12, 2014, ECF No. 121. Accordingly, the Motion is ripe for
disposition.
I. PROCEDURAL BACKGROUND
Having previously discussed this case's extensive procedural history in the Court's
Orders granting Plaintiffs Motion for Protective Order, ECF No. 80, and Plaintiffs Request for
Attorneys' Fees, ECF No. 112, the Court will not repeat said details here.
Rather, only a
summary of the present dispute is necessary to establish the context for the present motion. The
dispute originated when Lismont moved for entry of a protective order, ECF No. 68, which
Binzel opposed on the grounds that "sensitive financial information that the party has maintained
as confidential" should be designated as Attorneys' Eyes Only ("AEO"), ECF No. 75, attach. 1
at 2. In response, Lismont alleged that the AEO designation was unnecessary because Lismont
was previously given access to Binzel's financial information as a consultant and during
previous litigation in Germany between the same parties. ECF No. 78 at 2. Upon finding, in
part, that an AEO designation would be overly restrictive, the Court entered Lismont's version of
the protective order. ECF No. 80 at 3-4. While the Court found it undisputed that Lismont had
access to some financial documents during his role as a consultant, it noted that there was a
material dispute as to whether Lismont had ever been granted access during the German
litigation. Id. at 3 n.3.
Specifically, Binzel alleged, through the declaration of Dr. Emil
Schubert, Binzel's Managing Director, that Lismont was not provided access to any financial
information during the German litigation, ECF No. 75, attach. 4 at 2, 1) 6, and thus Binzel
objected to Lismont's access to sensitive financial information under a general argument that
Lismont might not be trustworthy with such information, and could disclose it or benefit from it.
Binzel buttressed this position by averring that, since Lismont did not have access to sensitive
financial information before, Lismont's trustworthiness was an unsettled question, which could
only be remedied by an AEO designation for the disclosure of sensitive financial information.
ECF No. 75 at 4-6.
Lismont, on the other hand, through his own declaration, claimed that he had been given
access to financial information during the German litigation, ECF No. 69, attach. 1 at 26, ^ 5,
and therefore contended that his trustworthiness had been established.
Faced with these
antithetical positions, the Court took Lismont's request for fees pursuant to Rule 37 under
advisement and asked for supplemental briefing to clarify the issue of whether Lismont had
previously been entrusted with financial information in the German litigation, in order to
determine whether Binzel's opposition to Lismont's refusal to include the AEO designation was
substantially justified. ECF No. 80 at 5.
The parties filed supplemental briefs on March 17, 2014. ECF Nos. 82, 85. The next
day, Lismont filed an additional unauthorized supplemental brief without requesting leave of
Court. ECF No. 86; see ECF No. 112 at 3.
Binzel then filed a motion for leave to file an
additional supplemental brief, ECF No. 90, which was granted by the Court, ECF No. 98, and
filed by Binzel on April 15, 2014, ECF No. 103.
After considering the supplemental briefing, the Court found that Dr. Schubert's
statement and Binzel's argument in response to Plaintiffs motion for entry of a protective order
had not been "entirely accurate, and thus, Binzel's opposition and request for AEO designation
was not substantially justified." ECF No. 112 at 4-5. Specifically, the Court noted that after
making a definitive statement in response to the proposed protective order that "[d]uring the
German litigation, Mr. Lismont was not provided access to any of Binzel-Germany's financial
documents," ECF No. 75, attach. 4 at 2, ^| 6 (emphasis added) (statement of Emil Schubert),
Binzel attempted to "not so subtly retract from" that statement in the supplemental briefing, ECF
No. 112 at 5. In their supplemental briefing, Binzel stated that Lismont "was not given access to
detailed financial information in the German litigation."
Id. (quoting ECF No. 82 at 2)
(emphasis added). Presented with these differing statements, the Court held that Binzel was not
substantially justified in insisting upon the AEO designation because Lismont had at least some
access to financial information during the German litigation, and therefore had established his
trustworthiness. Id. at 7. On that basis, the Court awarded attorneys' fees and directed Lismont
to submit a statement of his fees and costs incurred in making the motion for the protective order.
Id. Lismont then filed his Motion Substantiating His Attorney's Fees and Costs, ECF No. 118,
which is now before the Court.
In support of his request for attorneys' fees, Lismont proffered, inter alia, the declaration
of one of his counsel, Paul J. Korniczky. ECF No. 119, attach. 1 at 2-12. Mr. Korniczky stated
that Lismont's attorneys performed five tasks for which Lismont was entitled to attorneys' fees:
1. Preparing the confidentiality order, and corresponding and negotiating with
Defendants' counsel to resolve the dispute without motion practice;
2. Preparing the Motion for Entry of the Confidentiality Order, including research
regarding the propriety of Plaintiffs position and frivolous nature of
Defendants' position, and preparing the first declaration of Mr. Lismont;
3. Considering Defendants' opposition and preparing a reply in support of the
motion;
4. In response to the Court's order, preparing two supplemental briefs and a second
declaration of Mr. Lismont to address the false statements by Binzel's Managing
Director (President), Emil Schubert, and preparing a reply; and
5. Preparing this motion for attorneys' fees.
Id. at 3-4,1) 7. Mr. Korniczky included individual billing time charts associated with each task
for which fees were sought.1 Id. In total, Lismont alleged that his attorneys spent about 160
hours and $80,604 on the aforementioned tasks; however, Lismont voluntarily reduced the
attorney time in his fees request by approximately 27% or $21,650, id. at 4, \ 8, resulting in an
attorneys' fees request of $58,955, id. at 5, | 9. Thereafter, Lismont requested an additional
eight hours for time spent researching and preparing the reply to Binzel's opposition to
Lismont's request for fees. ECF No. 121. at 7. Accordingly, the total amount of attorneys' fees
sought by Lismont is $62,481. Id. The four attorneys to work on the five aforementioned tasks
1 Unfortunately, these charts contain numerous errors, as will be seen infra, thereby complicating the Court'stask.
4
were H. Michael Hartmann, Bret A. Hesterberg,2 Paul J. Korniczky and Lisa L. Furby. ECF No.
119, attach. 1 at 11, ^ 16. Mr. Hartmann, a registered patent attorney who has been practicing for
thirty-eight years, billed a total of 15 hours3 at a billing rate of $650/hour. Id., %17. Mr.
Hesterberg, a registered patent attorney who has been practicing for thirty years, billed a total of
21.7 hours at a billing rate of $530/hour. Id. at 12, ^ 18. Mr. Korniczky, a registered patent
attorney who has been practicing for twenty-eight years, billed a total of 103.6 hours at a billing
rate of $510/hour. Id, K 19; ECF No. 121 at 7 (including time billed for the five tasks, 99.6
hours, and an additional 4 hours preparing the reply to Binzel's opposition to Lismont's request
for attorneys' fees). Ms. Furby, who has been practicing patent law for less than a year, billed
26.5 hours at a billing rate of $270/hour. ECF No. 119, attach. 1 at 11, K 19; ECF No. 121 at 7
(including time billed for the five tasks, 22.5 hours, and an additional 4 hours preparing reply to
Binzel's opposition to Lismont's request for attorneys' fees). Lismont's attorneys spent $404.01
on legal research. ECF No. 119, attach. 1 at 11,121.
Considering the voluntary reduction of the number of hours claimed for work performed
by his attorneys "incurred in making the motion," Lismont argued that the total hours for which
reimbursement was sought was reasonable in light of the novelty and difficulty of the questions
raised. ECF No. 119 at 4. Specifically, Lismont alleged that the time was reasonable "given (i)
how crucial it was to the future conduct of Plaintiffs case that Mr. Lismont be permitted to
review and consider both Defendants' technical and financial information, and (ii) the need to
2 Lismont advised the Court that he would not claim Mr.Hesterberg's time spent with respect to these tasks in their
request "[t]o avoid any dispute over potentially duplicative work by multiple attorneys". ECF No. 119 at 6.
Nonetheless, his time was included in the category entitled "Hours Related Solely to Confidentiality Order" in the
various chartsproffered by Mr. Korniczky in his declaration. Id. at 4-9, Tf^j 11-14.
3 The Court derives the total number of hours billed by each attorney on the matters relating to the confidentiality
order by adding the sum ofthe hours listed in the charts provided at ECF No. 119, attach. 1at5-11, ffl[ 11-15, rather
than thechart provided at id. at 5,U9, which included Lismont's voluntary reductions.
5
review and analyze a number of foreign language documents." Id. at 7. Moreover, Lismont
argued that "[i]f Defendants' confidentiality order-with its highly restrictive "Attorneys' Eyes
Only" provision-had been entered, Mr. Lismont would have been unable to assist trial counsel in
reviewing, translating, and analyzing Defendants' financial data severely handicapping, at a
minimum, the proper development of Plaintiffs damages claims."
Id. at 4.
Additionally,
Lismont argued that he and his attorneys had to spend much time translating and reviewing
Binzel's financial records, and they spent considerable time researching Binzel's arguments
because Binzel provided no legal support for their arguments. Id. at 8.
Lismont cited multiple cases in support of the reasonableness his legal fees, most notably
Vienna Metro LLC v. Pulte Home Corp., No. l:10-cv-00502 (E.D. Va. Aug. 24, 2011),4 which
outlined the hourly rates of Northern Virginia law firms involved in practicing patent law. The
Vienna Metro rates were $250-435/hour for an attorney with 1-3 years of experience, $350-
600/hour for 4-7 years of experience, $465-640/hour for 8-10 years of experience, $520770/hour for 11-19 years of experience, and $550-820/hour for 20+ years of experience. See
Vienna Metro, No. 1:10-cv-00502, Docket No. 263 at 12. Lismont also proffered the declaration
of Paul Werner, a partner with the law firm of Sheppard Mullin Richter & Hampton, LLP, who
stated that "the hourly billing rates of Plaintiffs attorneys are reasonable hourly billing rates for
patent attorneys with their experience practicing patent law in the Eastern District of Virginia."
ECF No. 119, attach. 1 at 16, U8.
In response, Binzel alleged that Lismont's request is excessive and unreasonable. ECF
No. 120 at 1. Specifically, Binzel argued that the time spent by Lismont's attorneys was
4 Vienna Metro, an unpublished Memorandum Opinion and Order, is cited with approval by Mitile, Ltd. v. Hasbro,
Inc., No. I:13cv451, 2013 WL 5525685, at *1 (E.D. Va. Oct. 4, 2013).
6
unreasonable as "well beyond any reasonable amount of time for a simple discovery motion,"
and noted that defense counsel spent 1/3 of the time Lismont's attorneys spent on the matter. Id.
at 2-3. Additionally, Binzel argued that Lismont's use of senior partners to work on the motion
was "redundant and unnecessary." Id. at 5. Regarding Lismont's attorneys' hourly rate, Binzel
contended that the hourly rate was unreasonable because it reflected prevailing market rates
outside of the Norfolk Division of the Eastern District of Virginia. Id. at 4 n.5. Lastly, Binzel
argued that Lismont should not be awarded fees for the initial draft and negotiation of the
confidentiality order or the second supplemental brief filed without leave of court because fees
for these tasks are inappropriate as outside of the scope of the Court's fee award. Id. at 7.
II. ANALYSIS
A. Reasonableness of Attorneys' Fees
The Court evaluates the reasonableness of attorneys' fees by comparing the requested
amount to the lodestar amount, which is defined as a "reasonable hourly rate multiplied by hours
reasonably expended." Grissom v. The Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008). "In
deciding what constitutes a 'reasonable' number of hours and rate, [the Fourth Circuit] has
instructed that a district court's discretion should be guided by the following twelve factors:"
(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.
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009) (citation omitted).
Because this matter involves a discovery motion rather than the complete disposition of a case
after trial, the Court finds that the fourth, sixth, seventh, eighth,5 tenth, and eleventh factors are
not particularly applicable, leaving the Court to address the first, second, third, fifth, ninth and
twelfth factors. See Sun Trust Bank v. Nik, No. I:llcv343, 2012 WL 1344390, at *3 (E.D. Va.
Mar. 22, 2012).
Binzel challenges Lismont's fee on the grounds that the amount of time is
excessive, (the first factor), the rates charged and the amount of senior partner time was
inappropriate, (the second and third factors), and the amount of fees requested is not in line with
similar cases (the fifth and twelfth factors).6 ECF No. 120 at 2. As to the first factor, the Court
FINDS that the time and labor expended was excessive and thus not altogether reasonable and
necessary. As to the second and third factors, the Court FINDS that a fair amount of skill, which
was ably demonstrated, was required to properly perform the legal services rendered, and that the
issues raised in the motion were somewhat unique and were of some difficulty. Accordingly, the
Court FINDS that utilization of partners instead of an associate to perform most of the work on
Lismont's behalf was not unreasonable. Finally, based on the evidence that has been submitted,
the Court FINDS that the fifth, ninth and twelfth factors do not fully justify the specific hourly
rates sought for the attorneys, and the Court accordingly lowers them. The Court addresses each
of these factors in turn.
5 The Court recognizes that, although Plaintiff Lismont was successful on its discovery motion, it ultimately was
unsuccessful in the litigation, as the Court granted summary judgment in favor of Defendants less than one week
after the motion for attorneys' fees and costs, ECF No. 118, was referred to the undersigned. Nonetheless, the
award of fees and costs is appropriate based on Lismont's success on its discovery motion pursuant to Rule
37(a)(5)(A).
6 While Binzel argued that much of the work should not have been performed by senior partners, and the rates
charged by those partners was too high compared to fees charged in other cases, it did not directly challenge the
experience, reputation and abilities of Lismont'sattorneys themselves, the ninth factor.
8
1. Factor 1: The Time and Labor Expended
a. Task 1: Preparing and Negotiating Proposed Protective Order
The basis of Lismont's motion for protective order was his contention that Binzel's
production of financial information should not have been limited to AEO. The first task for
which Lismont seeks attorneys' fees is for time and labor expended in preparing and negotiating
the proposed protective order.
According to the chart from the declaration Mr. Korniczky
submitted in support of the fee request, counsel spent 10.4 hours7 performing this task. ECF No.
119, attach. 1 at 5-6, f 11. Lismont voluntarily reduced his claim for attorneys' fees for this task,
instead asking $2,273 in fees based on 4.25 hours of attorney time. Id. at 5, U 9. However,
Federal Rule of Civil Procedure 37(a)(5)(A) provides for an award of reasonable expenses
"incurred in making the motion," meaning the motion brought to the attention of the Court
because the parties had reached an impasse in discovery. The preparation of the proposed
confidentiality order and negotiating with the opposing party trying to reach agreement on such
an order is a normal part of the litigation process. Accordingly, the Court will not award fees
and expenses for Lismont's negotiation with Binzel over the terms of the confidentiality order.
b. Task 2; Preparation of Motion for Entry of Protective Order
The second task for which reasonable expenses is sought is for the preparation of the
motion, research regarding each party's position, and preparation of the declaration of Mr.
Lismont. Lismont's counsel provided detailed billing invoices showing work performed. ECF
No. 119, attach. 1, at 18-37. According to the chart in Mr. Komiczky's declaration, four of
7The Court derives this amount from the chart provided for Task One. ECF No. 119, attach. 1 at 5-6, Tf 11 _Under
the category titled "Hours Related Solely to Confidentiality Order Issues" in the chart for the first task, Mr.
Hesterberg is listed as having billed 1 hour on January 1, 2014, 0.3 hours on January 28, 2014, and 0.9 hours on
February 10. 2014. Id. This in actuality totals 1.9 hours, although the charterroneously lists a total sum of 1 hour.
Id.
9
Lismont's attorneys spent 44 hours8 performing this task. Id. at 6-8, \ 12. Recognizing that
some of the work performed included in these invoices represented labor on matters other than
preparing the motion for protective order, Lismont eliminated the time charged by Mr.
Hesterberg, which the Court finds appropriate, and therefore seeks recompense for 38.5 hours of
attorney time for a total amount of $18,461.
The party requesting fees bears the burden of demonstrating the reasonableness of what it
seeks to recover. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990); Cook v. Andrews, 1 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). Based on the issue being contested, the Court FINDS that
the amount of time expended on this task is excessive. The motion for entry of a protective order
was uncomplicated and should not have taken even the reduced claim of 38.5 hours for two
experienced attorneys and one associate to complete. The memorandum in support was ten
pages, and the arguments made were straight-forward and uncontroversial. While counsel did
prepare an extensive proposed protective order, that order was necessarily prepared regardless of
whether Binzel ended up opposing it.
While "[i]t is reasonable and customary for both
associates and partners to work on the same motion and their time expended is not duplicative,
but appropriate," Mitile, Ltd., 2013 WL 5525685, at *7, the total time expended is excessive and
therefore requires the Court to reduce the amount claimed for time devoted to preparing and
8 The Court derives this amount by calculating the sum of the hours listed as devoted solely to the confidentiality
order in the chart provided for Task 2. ECF No. 119, attach. 1 at 5-6, K 12. The chart for the second task lists Mr.
Hesterberg as having billed 0.5 hours on February 11, 2014, 2 hours on February 14, 2014, 2 hours on February 15,
2014, and 1 hour on February 18, 2014. Id. This in actuality totals 5.5 hours, although the chart erroneously lists a
total sum of 5 hours. Id. The chart attributes the remaining hours as follows: Mr. Hartmann-5.5 hours; Mr.
Korniczky-24.9 hours; and Ms. Furby-8.1 hours, for a total of 44 hours for all four attorneys.
10
filing the motion to enter the protective order, see Hensley, 461 U.S. at 434 ("The district court
should exclude from this initial fee calculation hours that were not 'reasonably expended[;]'"
such as when "[c]ases may be overstaffed" or the hours "are excessive.") Accordingly, Mr.
Hartmann's recoverable hours for preparing the motion will be reduced to from 5.5 to 2.6, Mr.
Komiczky's recoverable hours will be reduced from 24.9 to 12.5, and Ms. Furby's hours will be
reduced from 8.1 to 4.0.
c. Task 3: Preparation of Reply to Binzel's Opposition
The third task for which reasonable expenses is sought is for the review of Binzel's
opposition and preparation of a reply. Similarly, the Court also FINDS that the time expended to
review Lismont's opposition and prepare a reply brief is excessive. First, Mr. Hartmann billed
1.5 hours on March 6, 2014 for "[reviewing opposition to motion regarding protective order;
reviewing declarations and supporting documents," and he billed 2.5 hours9 on March 10, 2014
for "[preparing for settlement conference; reviewing reply regarding motion for protective
order; and miscellaneous other motions and discovery issues." ECF No. 119, attach. 1, at 7-8, K
13. Mr. Hartmann's time includes tasks unrelated to this third task, and that time which did
involve this task does not appear to have contributed to preparation of the reply, consisting solely
of his review of briefs and declarations. Id. Accordingly, the Court will not award fees for Mr.
Hartmann's time for this third task. Mr. Hesterberg billed 9.5 hours working on the reply to
Binzel's opposition, and Mr. Korniczky billed 22.3 hours on that task, along with working with
9Although Lismont claimed to have eliminated hours billed in block entries fortasks notassociated with the motion,
and listed only 2.0 hours on March 10, 2014 for Mr. Hartmann under the column captioned "Hours Related Solely to
Confidentiality Order Issue" relating to the entry "[preparing for settlement conference, reviewing reply regarding
motion for protective order; and miscellaneous other motions and discovery issues," the total hours claimed for Mr.
Hartmann for the third task are 4.0, which necessarily includes the full 2.5 hours billed on March 10, 2014 plus the
1.5 hours billed on March 6, 2014 for "[rjeviewing opposition to motion regarding protective order; reviewing
declarations and supporting documents." Id.
11
Mr. Lismont on his declaration. Id. The Court recognizes that Lismont's reply was complicated
by the need to counter Binzel's proffer of the Schubert declaration, which required a detailed
response from Mr. Lismont in his own declaration. While this reply and the preparation of Mr.
Lismont's declaration was appropriate, the amount of time expended to accomplish this task was
excessive, and Lismont has failed to establish why so much time was needed under these
circumstances. See Hensley, 461 U.S. at 433-34; Rehab. Ass'n ofVa., Inc. v. Metcalf 8 F. Supp.
2d 520, 527 (E.D. Va. 1998).
Accordingly, Mr. Hesterberg's time for reviewing Binzel's
opposition and preparing a reply will be reduced to 6.0 hours,10 and Mr. Komiczky's time for the
same and for working with Mr. Lismont on his declaration will be reduced to 14.0 hours. The
Court finds that Ms. Furby's time was reasonable, and will award the full 2.3 hours claimed.
d. Task 4: Preparation of Supplemental Brief Responding to Court Order
The fourth task for which Lismont seeks an award of reasonable expenses is the
preparation of his supplemental brief in response to the Court's Order requiring supplemental
briefs be filed by March 17, 2014, ECF No. 80, and then the preparation of an additional brief to
reply to Binzel's supplemental brief, which he filed on March 18, 2014, ECF No. 86.
Preliminarily, the entries provided by Lismont to support his request for fees in relation to the
fourth task are somewhat confusing, as the first entry billed by Mr. Harmann on March 11, 2014
for "[settlement conference preparations; corresponding with client; reviewing court order
regarding protective order motion," ECF No. 119, attach. 1 at 9,f14, was incurred a day before
the Court issued its Order for entry of a protective order on March 12, 2014, ECF No. 80.
Accordingly, this one hour billed by Mr. Hartmann will not be allowed.
10 Although Lismont volunteered to eliminate all of Mr. Hesterberg's time, supra n.l, the Court FINDS that, given
the reductions of time it determines are necessary to Lismont's fee request, the total elimination of all time spent by
Mr. Hesterberg is not required.
12
As the Court noted in its March 12, 2014 Order granting Lismont's motion for entry of a
protective order, the representations of Mr. Lismont and Dr. Schubert in their respective
declarations as to whether Mr. Lismont had been entrusted by Binzel with confidential financial
information in the German litigation were contradictory. ECF No. 80 at 5. Accordingly, the
Court ordered each side to submit a supplemental brief addressing the sole question of whether
Lismont had been provided such financial information during the German litigation.11 This
briefing was necessary to determine whether Binzel's opposition to Lismont's refusal to include
the AEO designation on the proposed protective order was substantially justified on the grounds
that Lismont's trustworthiness had not been previously established. Id. Each side then did so,
and through these supplemental declarations it was clear to the Court that Binzel had walked
back its contention that Lismont had not been provided any financial information during the
German litigation. ECF No. 112 at 5-6. However, upon receiving Binzel's supplemental brief
with two attached declarations, Lismont submitted on March 18, 2014, without authorization
from the Court, a second supplemental brief and yet another declaration from Mr. Lismont,
challenging the position taken by Binzel in its supplemental brief and declarations. ECF No. 86.
As discussed supra, this second supplemental brief was not authorized by the Court, nor did
Lismont seek permission from the Court to file it. The second supplemental brief and attendant
" As the Court emphasized in explaining why the supplemental briefs were necessary to determine if Lismont had
been provided financial informationearlier:
The Court must emphasize that the issue is not: "Lismont already had the information in the German
litigation, and thus because he already had it, Binzel could disclose it to Lismont in this litigation."
Rather, the issue is: if Lismont did have access to at least some financial information during the German
litigation, and did notdisclose it then, there is no reason forthis Court to speculate thathe would disclose
it now during this litigation. It is irrelevant that through discovery, Lismont would now receive "more,"
or different "types," of financial information than he might have had access to before. The relevant
consideration for this Court is that if Lismont had access to financial information before, during the
German litigation, no matter what amount or what type, and because there is no allegation that Lismont
previously disclosed any sensitive information, then Lismont has established his trustworthiness, and
Binzel's argument in support of the heightened AEO designation was notsubstantially justified.
ECF No. 112 at 6-7.
13
declaration from Mr. Lismont was also unnecessary, since Binzel's subsequent change from its
initial blanket position declaring that Lismont had not been provided any financial information
was established in its original supplemental brief and attendant supplemental declaration of Dr.
Schubert. Accordingly, Lismont may not recover its reasonable fees and expenses for its second
supplemental brief, ECF No. 86.
With respect to the time which will be allowed, the predominant hours billed for work on
Lismont's first supplemental brief and declaration were performed by Mr. Korniczky, who billed
21.4 hours12 for this task. ECF No. 119, attach. 1, at 9-10, K14. This work included working
with Mr. Lismont to locate and translate documents supporting his contention that he was
provided financial information during the German litigation, in addition to preparing the
necessary declaration, exhibits, and the supplemental brief itself. Id. In addition, Mr. Hartmann
spent 3.5 hours13 reviewing the Court's Order, corresponding with Mr. Lismont, strategizing a
response, and working on the supplemental brief and declarations. Id.
Ms. Furby billed 3.2
hours performing legal research.14 The Court FINDS that the hours billed by these three
attorneys were reasonable and supported by both the billing records and the nature of the
supplemental brief with attached exhibits which was submitted to the Court. However, Lismont
proffered no billable hours for Mr. Hesterberg in connection with the supplemental brief, but did
12 The Court calculates the 21.4 hours from the numbers listed in the category "Hours Related Solely to
Confidentiality Order Issues" pertaining to Mr. Korniczky on Task 4. ECF No. 119, attach. 1, at 9-10, fl 14.
Although Mr. Kornizcky billed a total of 29.4 hours on this task, 8 of those hours were spent on March 18, 2014, on
the unauthorized supplemental brief, id., and accordingly are disallowed.
13 The Court derives the 3.5 hours from the numbers listed in the category "Hours Related Solelyto Confidentiality
Order Issues" pertaining to Mr. Hartmann. ECF No. 119-1, Ex. 1, \ 14. The total number is 4.5 hours; however, the
Court disallowed the one hour billed on March 11, 2014, resulting in a total of 3.5 recoverable hours. Supra.
II.A.1.d. Moreover, Lismont's chart erroneously lists a total figure of 6.6 hours for Mr. Hartmann's hours relating to
the confidentiality order on task 4. That total is clearly incorrect, and cannot be arrived at even by adding the "Total
Billed Hours" from the chart for Mr. Hartmann for this task.
14 Once again, the totals attested to in Mr. Komiczky's declaration are off, as Ms. Furby's time is omitted from the
total figure at the bottom of the chart. Id.
14
for his time on March 18, 2014 in connection with the second supplemental brief.
Id.
Accordingly, the Court will not award Lismont fees for Mr. Hesterberg's time in connection with
task four.
e. Task 5: Preparation of Motion in Support of Award of Reasonable Expenses
The final task for which Lismont seeks an award of reasonable expenses is for his
preparation of the motion and affidavits in support of his request for attorneys' fees. Although
Binzel does not object to the principle that Lismont's attorneys may recover under Rule 37 for
time spent preparing the fee affidavit, the issue of whether time spent preparing a fee affidavit
can be included in a Rule 37 fees request has not been addressed in the Eastern District of
Virginia.15 Notably, other courts have held that such time is recoverable. The Eighth Circuit, in
allowing recovery for time spent preparing a fee affidavit, noted that Rule 37 encompasses a
broad array of expenses including "all expenses, whenever incurred, that would not have been
sustained had the opponent conducted itself properly." In re Stauffer Seeds, Inc., 817 F.2d 47, 50
(8th Cir. 1987) (quoting Aerwey Laboratories v. Arco Polymers, Inc., 90 F.R.D. 563, 565-66
(N.D. 111. 1981).
Moreover, district courts within the Fourth Circuit have held similarly,
including the Southern District of West Virginia and the Western District of North Carolina.
Arch Specialty Ins. Co. v. Go-Mart, Inc., No. 2:08-cv-285, 2009 WL 3763835, at *2 (S.D.W.
Va. Nov. 6, 2009); Ring Indus. Group, LP v. EZSet Tank Co., Inc., No. 5:07cvl03, 2008 WL
3501510, at *2 (W.D.N.C. Aug. 11, 2008) ("[F]ees generated in preparation of the petition for
fees are fair game for recovery under Rule 37."). Presented with no opposition by Binzel and no
15 This Court has considered an award of fees for time spent preparing a fee affidavit in other contexts. For
example, in the context of a contempt motion, Buffalo Wings Factor, Inc. v. MOHD, No. I:07cv612, 2008 WL
5101937, at *6 (E.D. Va. Nov. 28, 2008), and in the Fourth Circuit, in the context of a § 1988 claim, Daly v. Hill,
790 F. 2d 1071, 1080 (4th Cir. 1986).
15
adverse authority within the Eastern District of Virginia to the award, the Court finds that
Lismont's attorneys' time spent preparing the fee affidavit is recoverable.
In its preliminary motion and memorandum in support of its request for fees and
expenses, Lismont sought to recover for 16 hours of time for Mr. Korniczky and 8.9 hours of
time for Ms. Furby. Specific tasks associated with this endeavor included researching the legal
standard for an attorneys' fee award, preparing the necessary declarations, locating and preparing
billing records and invoices, and preparingthe motion and legal brief. ECF No. 119, attach. 1, at
11,1 15. The Court FINDS that the time expended is somewhat excessive, as neither the issues
presented nor the research required were novel or complex. Accordingly, the Court reduces the
time recoverable for Mr. Korniczky to 8 hours and for Ms. Furby to 4 hours. After Binzel filed
an opposition to Lismont's request for fees, Mr. Korniczky and Ms. Furby each expended an
additional 4 hours to research and prepare their reply to respond to the various arguments raised
by Binzel, including drafting an additional declaration and locating additional billing records and
invoices to attach as exhibits. ECF No. 121 at 7. In light of the matters to which Lismont was
required to respond, the Court FINDS that the time expended onthe reply is both reasonable and
sufficiently supported by the declaration and exhibits provided by Lismont.
f. Summary
In summary, the Court FINDS that Lismont is entitled to be awarded reasonable
attorneys' fees for certain, but not all, time expended by its attorneys for their work in
performing Tasks 2-5. Lismont is not entitled to be awarded for reasonable expenses for Task 1,
since negotiating and drafting a proposed protective order is part of the normal litigation process,
and not "incurred in making the motion" pursuant to Rule 37(a)(5)(A). The Court's award for
16
attorneys' fees will be based on an allowance of 59.9 hours for Mr. Komiczky's time, 6.1 hours
for Mr. Hartmann's time, 6.0 hours for Mr. Hesterberg's time, and 17.5 hours for Ms. Furby's
time, as categorized in the following chart:
Attorney
Taskl
Task 2
Task 3
Task 4
TaskS
Total per
hours
hours
Hours
hours
Hours
Attorney
Korniczky
0
12.5
14.0
21.4
12
59.9
Hartmann
0
2.6
0
3.5
0
6.1
Hesterberg
Furby
Total per
0
0
6.0
0
0
6.0
0
4.0
2.3
3.2
8
17.5
task
0
19.1
22.3
28.1
20
89.5 hours
2.
Factors 2 and 3: The Novelty and Difficulty of the Questions Raised and the Skill
Required to Properly Perform the Legal Services Rendered.
Beginning with the second factor, the novelty and difficulty of the questions raised in
Lismont's motion seeking entry of a protective order were somewhat unique and were of some
difficulty compared to the ordinary discovery dispute, given the necessity of coordinating with
German citizens, locating and translating German documents to present to the Court, and
presenting to the Court supplemental briefs. As the Court noted in its Order granting Lismont's
motion to enter the protective order, '"attorneys' eyes only' is a drastic limitation that is
'reserved for only those rare instances in which it is truly justified,'" ECF No. 80 at 2 (citing
Ragland v. Blue Cross Blue Shield ofN.D., No. l:12-cv-80, 2013 WL 3776495, at *2 (D.N.D.
June 25, 2013)), and protective orders designed to shield evidence from public view are to be
narrowly tailored, ECF No. 80 at 2 (citing Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 412-13
(M.D.N.C. 1991) (additional citations omitted)). In light of Binzel's opposition, Lismont's
original motion was necessary, and inasmuch as that opposition was based on an argument
regarding Mr. Lismont's trustworthiness that might or might not be established by reference to
17
previous litigation in Germany, overcoming that opposition was somewhat difficult. Hence, a
fair amount of skill was required to muster the evidence and argument necessary to rebut
Binzel's position, and such skill was ably demonstrated by Lismont's attorneys.
Binzel further contends that such work should not have been performed by senior
partners but, instead, most of it could have been accomplished by associates. The Court rejects
this argument. As Lismont pointed out, Mr. Korniczky was in the best position to resolve the
discovery dispute in this case, given his knowledge of the history of the litigation, his role in it,
and his relationship with Mr. Lismont. ECF No. 121 at 6. Moreover, as noted previously, "[i]t is
reasonable and customary for both associates and partners to work on the same motion and their
time expended is not duplicative, but appropriate." Mitile, Ltd., 2013 WL 5525685, at * 7.
Further, as Lismont also noted, there are circumstances when it is perfectly appropriate and more
efficient for a partner to perform certain tasks rather than assign them to an associate with
significantly less knowledge and experience in the particulars of the dispute. ECF No. 121 at 6
(citing Laffey v. Nw. Airlines, Inc., 572 F. Supp 354, 365-66 (D.D.C. 1983), aff'd in part, rev'd
in part on other grounds, 764 F.2d 4 (D.C. Cir. 1984)). Here, the particulars of the dispute,
including knowledge of the German litigation a decade before, were personally known by Mr.
Korniczky. Hence, the secondand third factors weigh in Lismont's favor.
3.
Factors 5. 9 and 12: The Customary Fee for Like Work. Attorney Experience,
Reputationand Ability, and Fee Awards in Similar Cases.
The remaining three categories the Court must consider here in determining Lismont's
fee request all impact the hourly rate at which Lismont seeks reimbursement for its attorneys.
The Court starts with the ninth factor, i.e. the experience, reputation and abilities of the attorneys.
Lismont proffered the law firm profiles of Messrs. Hartmann, Hesterberg and Korniczky, all
18
registered patent attorneys with between twenty-eight and thirty-eight years of experience and
partners of the Chicago law firm of Leydig, Voit & Mayer, Ltd., and of Ms. Furby, an associate
practicing patent law with the same firm, one year removed from law school. ECF No. 191,
attach. 1, at 39-52. Binzel does not challenge the experience, reputation and abilities of these
attorneys, and based on the work they performed, and Lismont's proffer, including the attorneys'
resumes and credentials, the Court FINDS the ninth factor weighs in Lismont's favor.
Concerning the fifth factor, Lismont posited the following billing rates for its four
attorneys who worked on this matter: Mr. Hartmann-$650 per hour; Mr. Hesterberg-$530 per
hour; Mr. Korniczky-$510 per hour; and Ms. Furby-$270 per hour. Id. at 11-12, ffi[ 17-20. It is
Lismont's burden to "produce satisfactory specific evidence of the prevailing market rates in the
relevant community for the type of work for which he seeks an award." Plyler, 902 F.2d at 277
(citations omitted). Binzel challenged these billing rates, claiming thatthey were notappropriate
for the legal market for the Norfolk Division of the Eastern District of Virginia, not in line with
rates charged by Binzel's attorney in other litigation, and excessive "in the context of a simply
[sic] discovery dispute." ECF No. 120 at 4-5. In support, Binzel relies on certain cases from the
Eastern District of Virginia rejecting similar hourly rate requests as unreasonable. Id.
In determining whether Lismont's rate requests are reasonable, the Court finds it
appropriate first to consider the Declaration of Mr. Paul Werner, an attorney who is not counsel
in this case. See ECF No. 119, attach. 1, at 14-16.
As the Fourth Circuit explained in
Robinson,"[i]n addition to the attorney's own affidavit[], 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, 560 F.3d at 244 (citation omitted)
19
(emphasis omitted) (finding that the district court abused its discretion in awarding attorneys'
fees where the applicant offered no specific evidence, besides an affidavit of a firm member, that
the hourly rates sought for her attorneys coincided with the then prevailing market rates of
attorneys in the Eastern District of Virginia of similar skill and for similar work, which the
Fourth Circuit's case law required her to do); see SunTrust Bank v. Nik, No. I:llcv343, 2012
WL 1344390, at *4 (E.D. Va. Mar. 22, 2012) (considering two declarations submitted by persons
who were not counsel of record in the case to determine the customary fee for like work and
attorney's fees and awards in similar cases). Through his declaration and citing specific
examples, Mr. Werner posited that the rates sought by Lismont's attorneys are in line with rates
of other similarly experienced attorneys who have litigated complex civil litigation in the Eastern
District of Virginia. ECF No. 119, attach. 1 at 15, fl 5-6. The cases relied on by Mr. Werner in
his declaration, however, are two cases from the Alexandria Division of this Court.
With respect to Binzel's argument that the rates applicable to the Alexandria Division of
this Court do not establish rates in the Norfolk Division, Binzel relies on several Norfolk
Division cases. The first, Project Vote/Voting for America, Inc. v. Long, was a case wherein
plaintiffs sued the General Registrar of Norfolk, Virginia to obtain access to voter registration
information. 887 F. Supp. 2d 704 (E.D. Va. 2012). The Court there found that reliance on the
Laffey Matrix, a formula established in Laffey v. Nw. Airlines, Inc., 572 F.Supp. 354 (D.D.C.
1983), and "frequently used by the United States District Court for the District ofColumbia, and
other courts, as a 'useful starting point' for determining the prevailing hourly rates for attorneys
in Washington, D.C.," was inappropriate in a First Amendment case litigated in the Norfolk
Division. Project Vote/Votingfor America, Inc., 887 F. Supp. 2d at 712. Binzel also relies on
20
Hargrove v. Ryla Teleservices, Inc., a case brought under the Fair Labor Standards Act, and it
was in that context where the Court found a rate of $600 per hour to be high compared to other
FLSA cases in the Eastern District of Virginia. No. 2:1 lcv344, 2013 WL 1897027, *6 (E.D. Va.
Apr. 12, 2013). Finally, Binzel relies on Randle v. H & P Capital, Inc., a Fair Debt Collection
Practices Act case, in which the attorneys' specialized experience was in the field of consumer
law. No. 3:09cv608, 2010 WL 2944907, at *8-9 (E.D. Va. July 21, 2010).
Notably, none of the cases Binzel relied on to suggest that the hourly rates were too high
were patent cases, thus ignoring the fact that "[pjatent law is a highly specialized area and
requires a high level of expertise; therefore, hourly rates that are higher than those of general
practitioners is to be expected." Rutherford Controls Int'l Corp. v. Alarm Controls Corp., No.
3:08cv369, 2009 WL 4015357, at *4 (E.D. Va. Nov. 17, 2009). However, Lismont does cite to
one Norfolk Division case where fees as high as $675 per hour for an experienced patent
attorney were found to be reasonable. ECF No. 121 at 5 (citing Swimways Corp. v. Tofasco of
America, Inc., No. 2:08cv481, Docket No. 242, at 10 (E.D. Va. Sept. 3, 2009) (unpublished). In
Swimways, the plaintiff was successful in pursuing sanctions against the defendant for its
conduct in violating the Court's injunction, a much more complex issue than presented here. Id.
at 2. Additionally, Swimways proffered the declaration of a local attorney who attested to the
reasonableness of the rates in the Norfolk Division. Id. at 10. On the other hand, Mr. Werner's
declaration more generally addressed billing rates in the Eastern District of Virginia instead of
the Norfolk Division specifically.,6 ECF No. 119, attach. 1, at 15, H7.
16 Mr. Werner did reference the Norfolk Division, but he did so in the context of two cases from the Alexandria
Division. ECF No. 119, attach. 1, at 15, U 5.
21
Turning the Court's attention to Binzel's other arguments as to the reasonableness of
Lismont's attorneys' billing rates, the Court gives little weight to the billing rate charged by
attorney Dozeman, whatever it was,
17
three years ago in a patent case in the Western District of
Michigan, as there is little information provided to the Court as to how those rates compare to the
Eastern District of Virginia. Binzel further relies on the fact that the work performed for which
attorneys' fees are sought is "garden variety discovery dispute" for which "no specialized
knowledge or skill" was required. ECF No. 120 at 5 n.6 (citing Ropack Corp. v. Plastician, Inc.,
No. 04CV5422, 2007 WL 328880 (N.D. 111. Jan. 30, 2007). While generally a dispute over the
entry of a protective order is, indeed, a typical discovery dispute, the particular circumstances of
this dispute were somewhat more complicated, requiring the production and translation of
numerous documents stemming from foreign litigation, multiple declarations from both sides,
and supplemental briefing.
Finally, with respect to the twelfth factor, Lismont identified two cases in which similarly
situated claimants who were successful on their motions to compel were awarded $23,442.50 for
44.7 hours of time, Mitile, 2013 WL 5525685, at *2, and $15,070 for 39.7 hours of time, Sun
Trust, 2012 WL 1344390, at *3. Neither of these cases comes close to the $62,481 award that
Lismont seeks here.
ECF No. 121 at 1. As Lismont notes, however, because of the unusual
factors involved here stemming from the circumstances of the previous German litigation
described supra, and the supplemental briefing ordered by the Court, the discovery dispute in
this case was more involved and complex than the typical case, and a greater fee award may be
justified. Nonetheless, at the end of the day, Lismont bears the burden of establishing by clear
17 The parties disagree onthe rate charged by Mr. Dozeman in a different case involving Binzel. Compare ECF No.
119 at 9-10 and ECF No. 121 at 5-6 with ECF No. 121, attach. 1, at 14-20 (Declaration of Douglas A. Dozeman).
22
and convincing evidence the amount of a reasonable fee in the circumstances. See Hensley, 461
U.S. at 433. Relying solely on an unpublished decision from the Norfolk Division finding a fee
award of up to $675 was appropriate in a patent case, Lismont has failed to meet his burden by
clear and convincing evidence that the specific hourly rates Lismont seeks here, for this
discovery dispute, are reasonable. Id; Plyler, 902 F.2d at 377. Hence, based on all of the above
factors, including the experience of the undersigned, the Court will reduce the billable rates for
each attorney as follows: Mr. Hartmann-$550 per hour; Mr. Hesterberg-$430 per hour; Mr.
Korniczky-$410 per hour; and Ms. Furby-$170 per hour.
In sum, then, the Court arrives at the proper lodestar amount per Grissom, 549 F.3d at
320-21, by multiplying the time and labor authorized by the Court in Section II.A. 1 of this
Memorandum Opinion, by the billable rates allowed for each attorney, and, accordingly, FINDS
that Lismont should be awarded attorneys' fees in the amount of $33,469. The specific
calculation of this amount is categorized in the following chart:
Attorney
Korniczky
Hours authorized
Hourly Rate
Fee
59.9
$410
$550
$430
$170
$24,559
$3,355
$2,580
$2,975
$33,469
Hartmann
6.1
Hesterberg
Furby
6.0
17.5
Total Fee Award
B. Costs
In addition to attorneys' fees, Lismont also seeks costs in the amount of $404.01 for
Westlaw research fees. ECF No. 191-1, Ex. 3. Binzel did not object to this expense, and the
Court FINDS that it is reasonable. Accordingly, Lismont will be awarded $404.01 in costs.
23
III. CONCLUSION
Plaintiff Hedwig Lismont's Motion Substantiating His Attorneys' Fees and Costs, ECF
No. 118, is GRANTED IN PART, and Lismont is awarded $33,469 in attorneys' fees and
$404.01 in costs, for a total award of $33,873.01.
The Clerk is DIRECTED to forward a copy of this Order to all counsel of record.
It is so ORDERED.
^^/
Lawrence R. Leortard
United States Magistrate Judge
Norfolk, Virginia
September 18, 2014
24
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