Southern Bank and Trust Company v. Pride Group, LLC et al
Filing
18
OPINION AND ORDER that the Court GRANTS IN PART and DENIES IN PART 11 Plaintiff's Motion for Default Judgment. The Court GRANTS Plaintiff's motion to the extent it seeks default judgment in this action, but DENIES such motion to the extent Plaintiff seeks post-judgment interest in excess of the rate established by 28 U.S.C. § 1961(a). The Court GRANTS Plaintiff's motion to the extent it seeks an award of reasonable attorneys' fees, but, as noted above, DENIES Plaintiff& #039;s motion to the extent the attorneys' fees sought by Plaintiff are unreasonable; directing the Clerk to judgment against PrideGroup, LLC, Pradip Shah, Vijay Patel, and Vijay Shah in the amount of $1,693,488.11 in principal, $275,9 04.09 in pre-judgment interest through September 19, 2014, pre-judgment interest at the rate of $505.69 per diem between such date and the entry of judgment, post-judgment interest at the rate set forth in 28 U.S.C. § 1961(a), and attorneys' fees and costs inthe amount of $121,378. Signed by District Judge Mark S. Davis and filed on 1/28/2015. (rsim, )
UNITED
STATES
DISTRICT
EASTERN DISTRICT
FILED
COURT
OF VIRGINIA
Norfolk Division
JAN 2 8 2C
SOUTHERN BANK AND TRUST COMPANY,
CLERK, U.S. DISTRICT
NORFOLK. V
Plaintiff,
Civil No.:
v.
PRIDE GROUP,
LLC,
VIJAY PATEL,
and VIJAY
PRADIP
2:14cv255
SHAH,
SHAH,
Defendants.
OPINION AND
ORDER
This matter is before the Court on an unopposed Motion for
Default Judgment,
ECF No.
Company
("Plaintiff")
in
favor
its
under
against Pradip Shah,
"Individual
11,
filed by Southern Bank and Trust
requesting that
Federal
Rule
Vijay Patel,
Defendants"),
and
the
of
Civil
PART
set
forth below,
Plaintiff's
default
judgment
be
Procedure
Pride
Group,
LLC
55(b)(2)
(collectively
("Pride"
"Defendants").
the
Court GRANTS
for
Default
Judgment
entered
against
Defendants
Motion
enter judgment
and Vijay Shah
collectively with Individual Defendants,
reasons
Court
or,
For the
IN PART and DENIES
and
in
DIRECTS
the
IN
that
amounts
detailed below.
I.
This
guaranties
action
FACTUAL
AND
involves
on such notes.
PROCEDURAL
BACKGROUND
two promissory notes
Plaintiff
alleges
and a
that
series of
Pride
failed
to
make
timely payments
Pradip Shah,
on
Vijay Patel,
the
two
promissory
notes
and
that
and Vijay Shah failed to make payments
as required under guaranties of such notes.
On March 15,
Note")
with
an
2006,
Pride executed a promissory note
original
principal
amount
favor of Bank of the Commonwealth.
Ex.
1,
7.65
ECF No.
percent
provision
1-1.
per
annum;
whereby
interest
rate
See
Bank
on
default.
id.
Shah,
Vijay
commercial
"First
The
the
Patel,
collectively,
the
note
Ex.
1.
and
guaranties
Patel
of
rate
for
such
note
Commonwealth
by
4.00
Shah
(respectively,
and
"the
Guaranties")
the First Note.
First
See id.
"First
1H 21,
29,
was
also
could
each
"First
Guaranty,"
id.
First
the
March
V.
increase
2 006,
January
20,
2009,
the terms of
the
loan
Pradip
separate
Guaranty,"
of
payment
of
Individual Defendants
7, 9, ECF Nos. 1-5, 1-7, 1-9.
the
and,
Commonwealth and
Pride
Id.
On
modified
the First Note by revising the principal amount of
("First
$4,622,291.67
Bank
the
upon
each guaranteed payment of $2,422,500.00 on the First Note.
H1 21, 29, 38; Compl. Exs. 5,
a
Shah Guaranty,"
guaranteeing
38.
points
executed
P.
Note
contained
15,
Shah
in
ECF No. 1;
percentage
On or about
Vijay
$4,84 5,000.00
Compl. H 7,
interest
however,
of
("First
and
Loan")
evidenced
by decreasing
the
by
the
interest
First
rate
on
from 7.65 percent per annum to 6.75 percent per annum.
Note
the
to
note
Id. K 8;
id. Ex. 2, ECF No. 1-2.x
On
February
("Second Note")
4,
2010,
Pride
in the principal amount of
of Bank of the Commonwealth.
The
interest
annum;
rate
however,
Bank of
executed
for
such
the
note
a
Second
also
Note
was
contained
a
the
Pradip Shah,
6.75
V.
Shah Guaranty,"
Shah Guaranty,"
and,
Vijay Patel,
"the
1 Although
the
the
First
text
Note
of
does
the
not
Change
show
that
in
On
and Vijay
(respectively,
and "Second
Second Guaranties")
guaranteeing payment in full of the Second Note.
modified
per
whereby
See id. Ex. 4.
"Second Patel Guaranty,"
collectively,
percent
provision
Shah each executed separate commercial guaranties
"Second P.
ECF No. 1-4.
interest rate on the
note by 4.00 percentage points upon default.
2010,
note
$190,000.00 in favor
Id. H 15; id. Ex. 4,
the Commonwealth could increase
or about February 4,
promissory
Terms
Individual
See id. 1JH 22,
Agreement
that
Defendants
were
a party thereto, see Compl. Ex. 2, Plaintiff has alleged—and the Court
must accept as true for the purposes of resolving this motion—that
Individual Defendants guarantied payment of
"the First Note," and
Plaintiff
has
defined
"the
First
Note"
to
include
the March
15,
2006
"First Original Note" and the Change in Terms Agreement, see id. ^ 9.
Thus, Plaintiff has alleged that the First Guaranties encompass both
the original March 15, 2 006 promissory note and the January 20, 2009
modification
thereof.
In
addition,
in
the
First
Guaranties,
Individual Defendants guarantied "the performance and discharge of all
[Pride's] obligations under the Note . . ." and such guaranties state
that " [t] he word "Note" means the promissory note dated March 15,
2006, in the original principal amount of $4,845,000.00 from [Pride]
to
[Plaintiff],
together with all modifications of and renewals,
replacements, and substitutions for the promissory note or agreement."
Compl.
Exs.
5, 7, 9.
Accordingly,
it appears that Individual
Defendants have guaranteed Pride's performance under the First Note as
modified by the Change in Terms Agreement.
30,
39;
id.
Exs.
September 22,
6,
1-10.2
On
after being placed into receivership,
2011,
8,
10,
ECF Nos.
1-6,
1-8,
Bank
of the Commonwealth was closed by regulatory authorities.
Id. H
10.
Thereafter,
Plaintiff
purchased
and
succeeded
to
Bank of the Commonwealth's interest in the First Loan,
the
First
Note
and
the
the
First
Second Guaranties.
See
Guaranties;
id.
the
fH 10,
16,
Second
23,
all
of
including
Note;
31-32,
and
40-41.
Thus, Plaintiff is the current holder of the First Note,
id. H
12, and the Second Note, id. H 19.
The First Note is
2013,
Plaintiff
First
Note.
demanded payment
Id.
payment and,
at
liable
principal;
2)
to
Id.
in
1 11.
full
However,
On November 14,
from
Pride
has
Pride under the
failed
Plaintiff
in
the
at
the
for:
First
rate
Note;
fees and collection expenses.
1)
42.
make
$1,513,145.49
of
and
Id.
interest
4)
H 14.
reasonable
Individual Defendants
have
in
2014; 3)
after
default
attorneys'
Plaintiff has also
demanded payment in full under the First Guaranties.
33,
to
is in default under the First Note and
$213,824.32 in interest through May 30,
thereafter
provided for
13.
therefore,
allegedly
interest
in default.
failed to
Id. UH 24,
make payment
in
2 Following Paragraph 38, the numbering of the paragraphs in the
Complaint reverts back to Paragraph 22.
The Court's references to the
paragraphs in the Complaint reflect the numbering if the Complaint's
paragraphs had continued in order following Paragraph 38.
response
to
Therefore,
Plaintiff's
Plaintiff
Individual
demands.
alleges
Defendants
$1,513,145.4 9
May 30, 2014; and 3)
id.
under
that,
are
in principal;
See
the
liable
2)
to
fH
25,
First
in
43.
Guaranties,
Plaintiff
$213,824.32
34,
for:
interest
1)
through
interest thereafter at the rate of interest
after default provided for in the First Note;
attorneys' fees and collection expenses.
and 4)
reasonable
Id. Uf 26, 35, 44.
The Second Note is also in default.
Id.
H 17.
Plaintiff
demanded payment in full from Pride under the Second Note.
Id.
H 19.
However, Pride has failed to make payment and, therefore,
is
default
in
under
Plaintiff
for:
interest
1)
through
the
Second
$180,342.62
May
30,
2014;
Note
in
and
allegedly
principal;
3)
interest
to
$6,959.56
2)
liable
in
thereafter at
the
rate of interest after default provided for in the Second Note;
and 4)
reasonable attorneys'
H 20.
Plaintiff
has
Second Guaranties.
fees and collection expenses.
also demanded payment
Id.
HH 24,
33,
42.
in
Id.
full under the
Individual Defendants
have failed to make payment in response to Plaintiff's demands.
See id. UK 25, 34, 43.
the
Second
Plaintiff
interest
Therefore,
Guaranties,
for:
1)
through
Individual
$180,342.62
May
30,
Plaintiff alleges that, under
2014;
in
3)
Defendants
principal;
interest
are
2)
liable
to
$6,959.56
in
thereafter
at
the
rate of interest after default provided for in the Second Note;
and 4)
reasonable attorneys'
fees and collection expenses.
Id.
H 20.
Id^ 1111 27, 36, 45.
On May 30, 2014, Plaintiff filed an action in this Court to
recover
from
Individual
ECF No.
Pride
under
Defendants
1.
On June
the
under
5,
ECF No. 4.
with
through
process
Defendants
the
2014,
with process.
First
and
Second
First
and
Second
2014,
registered
and
from
Guaranties.
Individual Defendants
On June 23,
its
Notes
were served
Pride was served
agent.
ECF
No.
7.
failed to timely file an answer to the Complaint or
otherwise respond thereto.
On July 18,
default as to Defendants.
ECF No.
2014, the Clerk entered
10.
On September 19, 2014, Plaintiff moved for entry of default
judgment.
Mot.
for Default J.,
ECF No.
11.
In such motion,
Plaintiff requests judgment against Defendants on the First Note
and
First
principal,
and
Guaranties
the
amount
of
$1,513,145.49
$263,074.88 in interest through September 19,
interest
interest
in
thereafter
after default
at
of
the
11.65
First
Note's
percent
alleged
per annum.
in
2014,
rate
of
Plaintiff
seeks judgment against Defendants on the Second Note and Second
Guaranties in the amount of $180,342.62 in principal,
in interest through September 22,
$12,829.91
2014, and interest thereafter
at the Second Note's alleged rate of
interest after default of
10.75 percent per annum.
Plaintiff also
and
collection
seeks
expenses
to recover reasonable attorneys'
already
incurred
in
the
amount
fees
of
$121,528.00
and
post-judgment
estimated at $30,000.
fees,
Plaintiff
Gray,
Plaintiff's
billing
billed
by
lead
to
submitted
counsel
in
substantiate
Plaintiff's
an
affidavit
counsel.
from
a
and
action,
amount
In
a
declaration
this
the
support of its motion for default
submit
fees
expenses
In support of its request for attorneys'
initially
entries
attorneys'
its
of
detailed
attorneys'
fees
briefing
Plaintiff
disinterested
attesting to the reasonableness of
Jeffrey
and
initial
judgment,
of
in
did not
local
attorney
the hourly rates charged by
Plaintiff's counsel or information concerning recent fee awards
by courts in comparable cases.
On
submit
December
fee
awards
reasonableness
counsel,
with
2014,
in
the
of
1)
an
the
Court
advisement
in
a
hourly
until
an
a
Plaintiff's
failure
to
attorney or evidence
of
cases
rates
order
Plaintiff
from
of
local
similar
entered
affidavit
light
of
either an affidavit
courts'
under
1,
to
billed
taking
establish
by
Plaintiff's
Plaintiff's
supplemented
disinterested,
the
its
motion
submission
experienced
local
attorney attesting to the reasonableness of the hourly rates and
hours billed,
and 2)
relevant biographical
information for each
attorney and staff member who billed services.
ECF No.
response
that
to
such
order,
Plaintiff
requested
15.
the
In
Court
reconsider its requirement that Plaintiff submit an affidavit to
support
the
reasonableness
of
the
attorneys'
fees
Plaintiff
seeks
and,
instead,
allow
reasonableness
of
such
fees
cases.
PL's
Supplement
Recons.,
ECF No. 16.
fee
Southern
award
Bank
&
reasonableness
of
a
Trust
Plaintiff's
of
for
Default
very
Co.
v.
the
support
in
J.
the
comparable
&
Req.
for
Plaintiff submitted
that the Court consider a
similar
case
Priyam,
for
for Recons.,
in
in
LLC,
request
submissions
to
this
District,
determine
attorneys'
ECF No.
response
17.
to
the
fees.
With the
the
Court's
this matter is now ripe for disposition.
II.
55
Mot.
Plaintiff's
December 1, 2014 Order,
Rule
decisions
requesting
PL's Supplement to Req.
benefit
on
On December 17, 2014,
in
of
to
based
to
an additional supplement
recent
Plaintiff
LEGAL
Federal
STANDARD
Rules
of
Civil
that entry of default is appropriate
Procedure
provides
"[w]hen a party against
whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend . . . ."
is
the
case
here
and,
as
noted
Fed. R. Civ. P. 55(a).
above,
the
default against Defendants in this matter.
of
default,
judgment.
a
plaintiff
then
move
has
entered
After securing entry
for
entry
of
default
Rule 55(b) (2) provides that, where a claim is not for
a sum certain,
the plaintiff must apply to the
of default judgment.
Inc. v. White,
decision
may
Clerk
Such
to
Fed. R. Civ. P. 55(b)(2); EMI April Music,
618 F. Supp.
enter
court for entry
default
2d 497,
judgment
505
(E.D. Va.
lies
within
2009).
the
The
sound
discretion of
F.2d 951,
F. Supp.
party
the
953-54
court.
(4th Cir.
2d at 505
is
not
Lolatchy v.
1987);
Arthur Murray,
to
default
(noting that
judgment
as
816
Inc.,
see EMI April Music,
(citation omitted)
entitled
Inc.,
618
"the moving
a
matter
of
right").
When a defendant defaults,
pleaded allegations of fact."
253 F.3d 778,
citations
fact,
a
780
(4th Cir.
omitted).
To
complaint
he admits "the plaintiff's well-
Ryan v. Homecomings Fin. Network,
2001)
(internal quotation marks and
present
"contain
must
well-pleaded
sufficient
allegations
factual
of
matter,
accepted as true,
to 'state a claim to relief that is plausible
on
Ashcroft
its
face.'"
v.
Iqbal,
556
U.S.
662,
678
(2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Accordingly,
allegations
in
in
the
the
default
complaint
judgment
are
deemed
context,
factual
admitted
and
the
"appropriate inquiry is whether or not the face of the pleadings
supports the default judgment and the causes of action therein."
Anderson
v.
Found.
Indians,
187
decision)
(citing Nishimatsu Constr.
515 F.2d 1200,
F.3d
1206
for
628
Advancement,
(4th
(5th Cir.
Although well-pleaded
true
not
for
admit
default
the
Cir.
1999)
&
Emp't
of
(unpublished
Am.
table
Co. v. Houston Nat'l Bank,
1975)).
factual
judgment purposes,
allegations
Educ.
in
the
allegations
are
accepted as
a party who defaults
claim
as
to
the
does
amount
of
damages.
See
Fed.
R.
Civ.
P.
8(b)(6)
allegation—other than one relating to
(providing
the
that
"[a]n
amount of damages—is
admitted if a responsive pleading is required and the allegation
is
not
denied.").
concludes
that
independently
Ryan,
For
that
liability
calculate
damages,
a
district
is
the
253 F.3d at 780-81.
reason,
after
a
district
established,
appropriate
it
amount
court
must
of
then
damages.
To assess the extent of a plaintiff's
court
may
hearing under Rule 55(b)(2),
conduct
a
formal
evidentiary
or may determine damages based on
affidavits or documents attached to the plaintiff's motion.
See
Anderson
v.
Am.
Indians,
155
Found.
F.3d
for
500,
Advancement,
507
(4th
Cir.
Educ.
1998)
&
Emp't
of
(citation
omitted)
(noting that "in some circumstances a district court entering a
default
judgment
may
award
damages
pleadings without holding a hearing.");
Inc.
v.
1872535,
omitted)
Old
Dominion
at *2
(W.D.
(finding
hearing on the
Saw
Va.
"no
Works,
June 30,
need
issue of
to
damages"
ascertainable
2005)
No.
4:04cvll,
Inc.,
No.
2009)
6:09cv4,
(unpublished)
convene
where
(unpublished)
unnecessary
because
2005 WL 3435030,
(citation
the
a
formal
at *2
had
evidence to support its claim for damages,
10
2009
evidentiary
submitted
DirecTV,
(W.D.
WL
(citation
the plaintiff
omitted)
plaintiff
the
cf. Pentech Fin. Servs.,
affidavits establishing the amount of damages);
Yancey,
from
Va.
(deeming
"presented
a
Inc. v.
Dec.
12,
hearing
sufficient
costs and fees by way
of uncontradicted affidavits").
III.
As
noted
above,
DISCUSSION
Plaintiff
requests
that
the
Court
enter
default judgment against Defendants for breach of the First and
Second
Notes
and
the
First
and
Plaintiff reasonable attorneys'
first
consider
judgment
on
whether
it
Plaintiff's
Second
Guaranties
fees and costs.
is
appropriate
claims
against
to
and
award
The Court will
enter
Defendants.
default
The
Court
will then assess whether to award Plaintiff the attorneys'
fees
and costs requested in Plaintiff's motion.3
A. Default Judgment on the Notes and Guaranties
In this case, Defendants were properly served with process,
see
ECF Nos.
4,
7,
yet,
failed to
timely file
pleading or otherwise respond to the Complaint.
pleaded
factual
admitted,
Ryan,
allegations
253
F.3d
in
at
the
780
ascertain whether Defendants are
Thus,
Complaint
(citation
id.
If
the well-
are
omitted),
liable to Plaintiff,
need only consider whether such allegations
which relief can be granted,
any responsive
deemed
and,
to
the Court
state a claim upon
liability is established,
the Court must then determine whether it can appropriately award
Plaintiff
3 The
the
damages
Court has
it
seeks
in
subject matter
the
Complaint.
jurisdiction
over
See
id. ;
this action
because the amount in controversy exceeds $75,000 and Defendants,
citizens of Virginia, are completely diverse from Plaintiff, a citizen
of North Carolina.
37,
See 28 U.S.C.
§ 1332; Compl. HU 1-3,
46.
11
14,
20,
28,
Portfolio
LLC,
18,
Recovery
Civil No.
Assocs.,
2:12cv649,
Inc.
v.
Portfolio
2013 WL 5723869,
Recovery
at *9
(E.D.
Va.
Oct.
2013).
"Under Virginia common law,
breach of
a promissory note is
encompassed under a breach of contract claim."4
Inc.
v.
Tech.
Res.,
*5
(E.D. Va. Dec.
v.
Core Holdings,
*1
Grp.,
(E.D.
elements
Va.
of
enforceable
Inc.,
23,
a
2013)
LLC,
Feb.
No.
7,
breach
l:13-CV-340,
2:12cv505,
2013)).
obligation of
WL
6834380,
at
(citing CIT Small Bus. Lending Corp.
Civil No.
of
2013
Premier Bank,
Under
contract
a
Virginia
action
defendant
2013 WL 711395,
to
are:
law,
(1)
a
a plaintiff;
at
"[t]he
legally
(2)
the
4 "A federal court sitting in diversity is required to apply the
substantive law of the forum state,
including its choice-of-law
rules."
Francis
v.
Allstate
Ins.
Co.,
709
F.3d
362,
369
(4th
Cir.
2013) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 49697
(1941);
Erie R.R.
Co. v. Tompkins,
305 U.S.
64, 79 (1938)).
"Virginia has long adhered to the traditional conflicts principle that
the *nature, validity and interpretation of contracts are governed by
the law of the place where made, unless the contrary appears to be the
express intention of the parties.'"
Crosson v. Conlee, 745 F.2d 896,
902 (4th Cir. 1984) (quoting Woodson v. Celina Mut. Ins. Co., 177
S.E.2d 610, 613 (Va. 1970)).
"Virginia law looks favorably upon
choice of law clauses in a contract, giving them full effect except in
unusual
circumstances."
Colgan Air,
Inc.
v.
Raytheon Aircraft
Co.,
507 F.3d 270, 275 (4th Cir. 2007) (citing Hitachi Credit Am. Corp. v.
Signet Bank, 166 F.3d 614, 624 (4th Cir. 1999)).
If the selected
"state is reasonably related to the purpose of the agreement, [the
Hooper v.
court] will apply the parties' choice of substantive law."
Musolino, 364 S.E.2d 207, 211 (Va. 1988).
Here, the First and Second
Notes and the First and Second Guaranties expressly provide that they
will be governed by "federal law applicable to [Plaintiff] and, to the
extent not preempted by federal
law,
the
laws of the Commonwealth of
Virginia without regard to its conflicts of law provisions . . . ."
See Compl. Exs. 1-2, 4-10.
The Court concludes that such choice of
Virginia law is reasonably related to the purposes of such agreements
because Defendants are citizens of Virginia and the First and Second
Notes and First and Second Guaranties were executed in Virginia.
Thus, the Court will apply Virginia's substantive law to this action.
12
defendant's
injury
or
violation
damage
obligation."
to
to
breach
the
Filak v.
In addition,
must
or
bring
of
that
plaintiff
George,
594
an action
obligation;
caused
S.E.2d 610,
to
enforce
"be signed by the party who is to be
his agent."
Va. Code Ann.
by
the
614
a
and
(3)
breach
(Va.
note,
of
2004).
such note
charged thereby,
or
§ 8.01-27.
The Court FINDS that Plaintiff has alleged facts sufficient
to state a cause of action against Defendants.
Complaint
Notes
in
establish
favor
Defendants
under
Bank
guaranteed
such
Plaintiff
of
that
of
loans
Notes,
and
to
is
Pride,
the
to
First
and
performance
of
the
Bank
is
the
Commonwealth
Further,
succeeded
in both
the
executed
Pride's
notes.
has
Pride
The facts in the
the
of
holder
beneficiary
that
obligations
indicates
Commonwealth's
of
of
the
the
Second
Individual
its
Complaint
the
and
First
First
that
interest
and Second
and
Second
Guaranties.
With respect
has
stated
Plaintiff
a
claim
has
enforceable
to
Pride,
for
breach
established
obligation
the
in
Court concludes that Plaintiff
of
the
that
Pride
the
form
First
owed
of
embodied in the First and Second Notes.
12,
15,
16,
18;
id.
Exs.
1, 4.
and
Second
Plaintiff
the
a
promises
Notes.
legally
to
pay
See Compl. UK 7,
10,
Plaintiff has also alleged facts
showing that Pride breached such obligation by failing to make
payments
on
the
First
and
Second
13
Notes
as
demanded
and
that
Plaintiff suffered financial injury as a result of such failure.
See
id.
HH 13-14,
party
to
under
be
Va.
19-20.
charged,
Code
Ann.
Pride,
§
and,
have been signed by
therefore,
8.01-27.
Thus,
for breach of
claim against Pride
See Filak,
Both notes
the
are
Plaintiff
the
enforceable
has
stated
a
First and Second Notes.
594 S.E.2d at 614.
Likewise,
the Court finds that Plaintiff has stated a claim
against Individual Defendants for breach of the First and Second
Guaranties.
The
First
and
Second
Guaranties
established
Individual Defendants owed enforceable obligations
to
that
Plaintiff
to pay Plaintiff in the event Pride failed to perform its duties
under the First and Second Notes.
38-3 9;
show
id.
Exs.
that
obligations
payment
5-10.
Defendants
by
to
failing
33-36,
pay
Pride's
financial
HI 24-27,
allegations
Individual
following
sustained
The
See Compl. HH 21-22, 29-30,
harm
Complaint
also
failed
to
perform
such
result
and
of
Accordingly,
after
that
such
it
demanded
Plaintiff
failure.
See
has
id.
Plaintiff
has stated a
claim against Individual Defendants for breach of
the First and
Second Guaranties.
42-45.
a
the
Plaintiff
default
as
in
See Filak,
594 S.E.2d at 614.
Having determined that Plaintiff has stated a claim against
Defendants,
appropriate
Complaint.
the
to
Court
award
must
Plaintiff
Plaintiff
seeks
now
the
to
14
consider
relief
recover
it
whether
it
is
requested
in
the
from
Pride
and
the
Individual Defendants
the outstanding principal and interest on
the First and Second Notes,
as well as post-judgment interest at
the rate allegedly established in the First and Second Notes.
The Court FINDS
that
it
is
appropriate
damages against Pride for breach of the
based
First
on
such
Note
and
Complaint,
First
notes
and
Change
the
in
Hill
included
a
First and Second Notes
Declaration.
Terms
Agreement
the Court concludes that,
Note
Principal
Similarly,
Amount
the
Court
finds
included a
the
that,
principal
amount
6.75 percent per annum,
10.75
of
C.
Hill,
establishes
September
$263,074.88
19,
in
the
2014
thereafter at
rate
interest
of
ECF No.
12-1.
after
2010,
$190,000,
an
id. Ex.
4.
in
support
of
due
the
amount
was
interest,
accrues
See Compl.
See
submitted
that
the
the
an
the
Ex.
1-2.
Complaint,
Second Note
interest
rate
of
and a rate of interest after default of
percent per annum.
James
to
and a rate of interest
February 4,
of
the
$4,622,2 91.67,
Second Note attached to the
as
on
attached
of
10.75 percent per annum.
based on
Based
as of January 20, 2009,
interest rate of 6.75 percent per annum,
after default of
to award Plaintiff
and
that
the
First
in
interest
per diem under
default.
Hill
the amount due on the Second Note
15
Decl.
of
Declaration of
Plaintiff's
$1,513,145.49
$451.84
Likewise,
on
The
motion,
Note
as
principal
on
such
the
James
principal
First
C.
and
Note's
Hill
at
Declaration establishes
as
of
of
September 19,
2014
4,
that
was
$18 0,342.62
in
principal
and
$12,82 9.21
in
interest,
and
that
interest on such principal accrues thereafter at $53.85 per diem
under
the
Second
Therefore,
based
Declaration,
direct
Note's
on
rate
the
of
First
interest
and
Second
on the First Note,
$263,074.88
in
enter judgment in its
in the amount of
interest
through
judgment interest at the
rate
of
$180,342.62
September
of
Notes
and
Id.
the
Hill
September
$53.85
per
19,
2014,
and
pre
rate of $451.84 per diem between such
in
19,
favor against Pride:
$1,513,145.49 in principal,
date and the entry of judgment; and,
through
default.
the Court will GRANT IN PART Plaintiff's motion and
the Clerk to
amount
after
principal,
2014,
diem
on the Second Note,
and
$12,829.21
pre-judgment
between
such
date
in
in the
interest
interest
and
the
entry
the
at
of
judgment.
Moreover,
Plaintiff
the
damages
Court FINDS
against
that
it
Individual
is appropriate to award
Defendants
for
breach
of
the First and Second Guaranties based on such guaranties and the
Hill
Declaration.
The
Complaint,
establish
Shah
First
that
Pradip
guaranteed
each
amount
on
the
thereon.
Compl.
attached
Patel,
First
to
and
the
Vijay
payment
Note,
Exs.
5,
as
7,
Complaint,
Shah
also
Guaranties,
of
Shah,
as
The
establish
each
16
Vijay
$2,422,500
well
9.
attached
Patel,
of
accrued
Second
that
principal
unpaid
interest
Guaranties,
full
the
and Vijay
the
Pradip
guaranteed
to
Shah,
also
Vijay
payment
of
Pride's
10.
basis
obligations
under
As noted above,
for
the
the
Second Note.
Compl.
the
Court
GRANT
PART
IN
First
6,
8,
the Hill Declaration provides a sufficient
to
determine
the
amount
Pride
and Second Guaranties,
Plaintiff's
motion
and
the
direct
owes
to
Therefore,
Plaintiff under both the First and Second Notes.
light of
Exs.
in
Court will also
the
Clerk
to
enter
judgment in favor of Plaintiff against Individual Defendants in
the following amounts: on the First Guaranties,
$1,513,145.49
in
September
2014,
19,
principal,
$263,074.88
and pre-judgment
$451.84 per diem between such date
and,
on the Second Guaranties,
principal,
$12,829.21
in
in the amount of
in
interest
interest
at
rate
of
and the entry of judgment;
in the amount of
interest
the
through
through
$180,342.62 in
September
19,
2014,
and pre-judgment interest at the rate of $53.85 per diem between
such date and the entry of judgment.
Plaintiff also seeks post-judgment interest at the rates of
interest
after
default
Under 28 U.S.C.
stated
in
the
First
and
Second
Notes.
§ 1961,
[i]nterest shall be allowed on any money judgment in a
civil
case
interest
recovered
shall
be
in
a
district
calculated
from
court.
the
.
date
.
.
of
Such
the
entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as
published
by
the
Board
of
Governors
of
the
Federal
Reserve System, for the calendar week preceding[]
date of the judgment.
28 U.S.C.
§ 1961(a).
Nonetheless,
17
the
the Court of Appeals for the
Fourth Circuit has suggested that the "parties may
different
rate
[of
post-judgment
interest],
*stipulate a
consistent
with
state usury and other applicable law.'"
Kanawha-Gauley Coal &
Coke Co. v.
501 F. App'x 247,
(4th Cir.
Pittston Minerals Grp. , Inc.,
2012)
67 F.3d 294
(4th Cir.
absent a clear,
must
(quoting Carolina Pizza Huts,
1995)
established
Pickens,
274
indicating
"clear,
in
28
(unpublished table decision)).
federal
U.S.C.
the
§
568,
F.R.D.
that
Inc. v. Woodward,
unequivocal agreement by the parties,
apply the uniform
574
parties'
rate
See
(D.S.C.
2011)
agreement
and unequivocal
unambiguous,
id.;
interest
Braunstein
(collecting
must
be
language"
Yet,
the Court
of post-judgment
1961.
254
cases
expressed
for
a
v.
court
in
to
award post-judgment interest at a rate other than the statutory
rate).
In this case,
Court
should
Plaintiff has failed to demonstrate that the
award
statutory rate.
post-judgment
As
stated above,
interest
the
in
First
excess
and
of
the
Second Notes
both establish a four percent per annum increase in the rate of
interest on such notes following default.
not
of
expressly indicate that
interest
after
default
However,
the parties agreed that
would
apply
as
the
judgment interest in any action on such notes.
Court concludes
a clear,
that
the
the notes do
rate
such rates
of
post-
Therefore,
the
First and Second Notes do not establish
unequivocal agreement between Plaintiff and Pride that
18
the
rates
of
interest
after
default
in
each note
established an
agreed rate of post-judgment interest.
See S. Bank & Trust Co.
v.
2014
Priyam,
(E.D.
Va.
matter,
LLC,
Dec.
Action
16,
No.
2013)
2:14cv254,
(Smith,
C.J.)
WL
7239123,
(in an almost
at
*1
identical
adopting a magistrate judge's report and recommendation
finding that the
inclusion of a rate of
interest after default
in a promissory note did not unequivocally demonstrate an agreed
rate of post-judgment interest).
seeks
the
post-judgment
Court
GRANT
will
IN
DENY
PART
judgment
interest
IN
PART
at
excess
Plaintiff's
Plaintiff's
interest
in
Thus,
motion
the
rate
to the extent Plaintiff
of
the
statutory rate,
motion.
and
The
award
established
Court
Plaintiff
by
28
will
post-
U.S.C.
§
1961(a).
B. Attorneys'
Fees and Costs Incurred to Date
Plaintiff also seeks an award of reasonable attorneys'
and
costs.
Given
that
Plaintiff
has
invoked
the
fees
Court's
diversity jurisdiction to assert a state-law cause of action in
which it
seeks attorneys'
provisions
Guaranties,
in the
"Virginia
available and,
v.
Sarrion
2012)
379
if so,
Travel,
(citing W.
(4th
First
Cir.
fees on the basis of
and Second Notes
law
governs
Inc.,
846
Insulation,
2010)
F.
L.P.
v.
attorneys'
fees
are
Airlines Reporting Corp.
Supp.
(unpublished)).
19
and First and Second
whether
in what amount."
the contractual
2d
Moore,
533,
362
Under
536
F.
(E.D.
App'x
Virginia
Va.
375,
law,
"'contractual
provisions
shifting
valid and enforceable.'"
Id.
Corp.
Va.
2010)) .
However,
precise amount of fees,
from
the
evidence
what
P'ship,
730
The
party
F. Supp.
are
reasonable
fees
determine
whether
.
are
2d 513,
518
"fix the
an
award
of
under
the
Inc.,
the
499
S.E.2d
amount
of
facts
and
Id. (quoting Mullins v.
403 S.E.2d 334, 335
seeking
BurgerBusters,
.
xa fact finder is required to determine
(Va. 1991)).
attorneys'
fees
burden of proving the reasonableness of such fees.
v.
.
where a contract does not
circumstances of the particular case.'"
Richlands Nat'l Bank,
fees
(quoting Signature Flight Support
v. Landow Aviation Ltd.
(E.D.
attorneys'
829,
833
(Va.
attorneys'
has
the
See Chawla
1998).
fees
sought
To
is
reasonable,
"[a] fact finder may consider, inter alia, the time
and effort expended by the attorney, the nature of the
services rendered,
value
of
the
the complexity of the services,
services
to
the
client,
the
the
results
obtained, whether the fees incurred were consistent
with those generally charged for similar services, and
whether the services were necessary and appropriate."
W.
Square, L.L.C. v. Commc'n
(Va. 2007)
a
to
fee,
assist
"[w]hile
the
every
case."
Bank/Crestar
Bank,
413
Mullins,
S.E.2d
403
at
expert
fact
in
required
Inc., 649 S.E.2d 698,
(quoting Chawla, 499 S.E.2d at 833) .
reasonable
necessary
Techs♦,
testimony
finder,
Tazewell
such
Co.
621
(Va.
S.E.2d
611,
335).
Indeed,
20
the
In determining
ordinarily
testimony
Oil
702
v.
is not
United
1992)
Supreme
is
Va.
(citing
Court
of
Virginia has upheld an
award of
extensive
time
for
"contemporary
which
the
plaintiff's]
fees
were
attorneys
attorneys'
records
sought"
upon
the
fees
detailing
and
supported by
the
activities
"affidavits
reasonableness
of
of
the
[the
hourly
rates charged and the accuracy of the time billed."
Id. at 620.
Under Virginia
fees
awarded"
LG
lies
Marion
law,
in
the
Corp.,
the
"amount
discretion
521
S.E.2d
of
of
the
the
528,
attorneys'
trial
court.
(Va.
1999)
533
to be
Holmes
v.
(citations
omitted).
The Fourth Circuit has indicated that,
reasonableness
law,
a
of
court
may
nonconflicting
F.3d
Applying
guidance,
in
of
to
attorneys'
federal
(4th
Cir.
applicable
interpreting
1995)
"as
a
Virginia
persuasive,
reasonable
(unpublished
federal-law
fees
table
principles
the requests are uncontested,
contractually obligated to pay all
5 See also Airlines Reporting,
Se.
law
under
under
decision) .5
as persuasive
even though Plaintiff claims that the requested fees
are reasonable,
Supply,
fees
GE Supply, a Div. of Gen. Elec. Co. v. Thomas,
1414
the
award
look
guide
Virginia law."
62
an
when determining the
reasonable attorneys'
6:12-cv-00052,
fees,
846 F. Supp. 2d at 536 (quoting GE
62 F.3d 1414); Elderberry of Weber City,
Inc. , No.
and Defendants are
2014 WL 3900389,
LLC v.
at *9
n.
Living Ctrs.
1
(report and
recommendation) (noting that "District Courts in the Fourth Circuit
sitting pursuant to diversity jurisdiction vary as to whether they
apply the Virginia
law factors
or [federal-law]
Johnson/Kimbre11's
factors, or a combination of both, in an attorneys' fee analysis" and
collecting cases) , adopted by, 2014 WL 3900389 (W.D. Va. Aug. 11,
2014)).
21
"the
Court
is
nevertheless
obligated
to
review
request independently for reasonableness."
of
Va.
Patience Shared Hous. , Inc.,
2011) .
Under
attorneys'
request
fees,
for
the
a
attorneys'
the
multiplying
number
reasonable
549
the
rate."
F.3d 235,
federal
court's
determination of
law
fees
of
the
v.
(4th
Cir.
2009)
313,
320
(4th
Cir.
award
A Touch
525
to
(E.D.
awards
reasonableness
necessarily
begins
of
of
with
a
the
which is calculated "by
reasonable
Robinson
2d 516,
applicable
"lodestar figure,"
fee
Kennedy v.
Supp.
review of
243
F.3d
779 F.
the
hours
Equifax
expended
Info.
Servs.,
(citing Grissom v.
2008)).
The
times
LLC,
Mills
lodestar
a
560
Corp.,
figure
is
" [t]he most useful starting point for determining the amount of
a reasonable
which
to
fee,"
make
services."
an
because
initial
Hensley
v.
it
"provides
estimate
Eckerhart,
of
an objective basis
the
461
value
U.S.
of
424,
a
433
on
lawyer's
(1983).
When determining the "reasonable" number of hours and rate, the
following
factors
should
guide
the
Court's
exercise
discretion:
(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
22
of
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,
577
560 F.3d at 243-44
F.2d 216,
226
need not address
n.28
Supp.
2d
factors,
(4th Cir.
1978)).
766,
Inc.
768
or
v. Norcor Bolingbrook Assocs.,
(E.D.
otherwise
Va.
2009) .
unnecessary,'
v.
Long,
887
F.
Supp.
2d
court
LLC,
In addition to
as
reasonably expended on the litigation."
Inc.
"the
these factors."
"the court must exclude any hours that are
redundant,
Am.,
However,
in detail every single one of
Dollar Tree Stores,
F.
(quoting Barber v. Kimbrell's Inc.,
such
699
these
'excessive,
hours
are
not
Project Vote/Voting for
704,
709
(E.D.
Va.
2012)
(quoting Hensley, 461 U.S. at 434).
In
this
because
the
Guaranties
attorney'
case,
an award of
First
and
provide
Second
that
Defendants
see Compl. Exs. 1-2,
enforceable under Virginia
2d at 536.
law—the
Notes
fees
and
is
First
will
pay
appropriate
and
Second
Plaintiff's
fees and costs in a lawsuit to enforce such notes and
guaranties,
Supp.
attorneys'
Court
Plaintiff
seeks
However,
must
and such provisions are
see Airlines Reporting,
846
F.
under Virginia law—as under federal
determine
to recover.
the reasonableness of
law,
4-10,
the
The
reasonableness
Court will
do
of
the
fees
so by assessing
the hours billed by Plaintiff's attorneys
and the reasonableness of such attorneys'
23
hourly rates.
1.
After
a
Reasonable Hours
careful
review
of
Billed
the
billing
Plaintiff submitted in support of its motion,
Court
concludes
attorneys
the
the number of
is reasonable.
burden
of
reasonable.
437.
that
Chawla,
The
that
499
significant
the
S.E.2d
amount
ECF No.
that
16-1,
the
hours billed by Plaintiff's
Plaintiff,
proving
records
as the fee applicant,
number
at
of
833;
hours
Hensley,
in controversy
billed
461
in
has
this
is
U.S.
at
action,
$4,500,000 in principal and $129,000 in unpaid interest and late
fees
at
Decl.
the
of
time
of
Jeffrey
Defendants'
Gray
at
2,
default
ECF
in mid-November
No.
16-1,
and
2013,
more
than
$1,900,000 in principal and unpaid interest as of September 19,
2014,
see
Hill
reasonableness
of
Decl.
at
1-2,
the
hours
ECF
No.
Plaintiff's
12-1,
supports
the
attorneys
billed.
In
addition, this action involved complex matters requiring skilled
attorneys and the expenditure of significant time,
considering that the action involved,
restructure
obligations
owed
by
inter alia,
Defendants
especially
attempts to
to
Plaintiff,
foreclosure proceedings, the emergency appointment of a receiver
to
protect collateral
various
receivership
securing
proceedings,
the
First
and
a
and
Second Notes,
contested
motion
to
intervene in a state-court proceeding to sell property securing
such notes.
provided
See Gray Decl.
detailed
billing
at 2-5.
entries
24
Moreover,
Plaintiff
describing
the
has
work
Plaintiff's attorneys performed in connection with this action.
See Mem.
Supp.
records,
the
Plaintiff's
Finally,
Mot.
for Default J.
Court
has
attorneys
Plaintiff's
Ex.
assessed
billed
the
in
attorneys
2 at
10-57.
necessity
connection
achieved
a
From such
of
with
the
this
favorable
hours
matter.
result
in
selling the property securing the First and Second Notes and in
obtaining a judgment in this action on such notes and the First
and Second Guaranties.
in
Chawla—and
carefully
entries,
the
having considered the factors
substantially
analyzed
the
Therefore,
similar
Plaintiff's
Court
FINDS
that
Robinson
attorneys'
the
hours
factors—and
detailed
billed by
billing
Plaintiff's
attorneys to date are reasonable.
2. Reasonable Hourly Rate
Under Virginia law, in determining the reasonableness of a
fee award,
"whether the fees incurred were consistent with those
generally charged for
for
the
Court's
similar services"
consideration.
awards
64 9
attorneys'
S.E.2d
7 02.
pursuant
to
federal
the Fourth Circuit has explicitly held that it
is
[a fee applicant]
fees
at
when
error to "excus[e]
court
Square,
important factor
Furthermore,
law,
a
W.
is an
from [its] well-established
burden to provide evidence of an applicable prevailing rate as a
starting point for the attorney's fees analysis."
Coal
Co.
v.
Cox,
602
F.3d
276,
290
(4th Cir.
Westmoreland
2010).
The
fee
applicant meets its burden by, in addition to the attorney's own
25
affidavits,
"produc[ing]
satisfactory
specific
evidence
of
the
prevailing market rates in the relevant community for the type
of work for which he seeks an award."
(quoting Plyler v.
Evatt,
accord Westmoreland,
277).
902
Grissom,
F.2d 273,
602 F.3d at 290
277
54 9 F.3d at 321
(4th
Cir.
(citing Plyler,
1990));
902 F.2d at
Specifically, the Fourth Circuit explains:
The prevailing market rate may be established 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
actual rates which counsel can command in the market.
Spell
v.
McDaniel,
(citations omitted);
(4th Cir.
1986)
"affidavits
824
F.2d
see also Daly v.
(noting the
from
1380,
other
1402
Hill,
"customary"
area
attorneys
(4th
Cir.
1987)
790 F.2d 1071,
1080
practice of submitting
as
evidence
that
[the]
requested rates were within the market rates generally charged
for similar services").
The
Court
Plaintiff's
FINDS
that
attorneys
similar cases.6
are
the
hourly rates
reasonable
based
charged by most
on
fee
awards
of
in
Along with the affidavit of its lead counsel
6In this case, to support the requested award of attorneys' fees,
Plaintiff initially only submitted billing entries and an affidavit of
its lead counsel attesting to the reasonableness of the attorneys'
fees it seeks to recover.
Under Virginia law, Tazewell suggests that
an affidavit of a plaintiff's attorney and billing records can
establish the reasonableness of an award of attorneys' fees.
See 413
S.E.2d at 621.
However,
to support an award of attorneys'
fees
pursuant to federal law,
which did not
note
any
the affidavit of Plaintiff's lead attorney—
specific
similar cases
26
in which courts
have
attesting to
the reasonableness of
Plaintiff's attorneys,
biographical
Gray Decl.
information
for
the hourly rates charged by
at 7,
the
provided services to Plaintiff,
Plaintiff has submitted
attorneys
and
staff
who
as well as information regarding
comparable cases
in which courts have approved similar billing
rates.
After
comparing
partners,
attorneys of counsel,
the
hourly
associates,
paralegals who performed legal
hourly
rates
included
in
rates
services
fee
awards
charged
by
the
staff attorney,
and
for Plaintiff with the
in
similar
cases,
and
considering such hourly rates with the added context provided by
the
biographical
concludes
that
Plaintiff's
comparable
the
counsel
2:14cv254,
(Smith,
hourly
in this
to the rates
similar matters.
No.
information
C.J.)
Plaintiff
rates
charged
(in
courts
WL 7239123,
an
by
all
case are reasonable.
have
at
almost
*1
the
but
Court
one
v.
(E.D.
identical
Priyam,
Va.
of
Such rates are
approved in this area
See S. Bank & Trust Co.
2014
submitted,
LLC,
Dec.
matter,
16,
in
Action
2014)
adopting
a
approved of hourly rates comparable to those charged by Plaintiff's
attorneys-would be insufficient to substantiate the reasonableness of
Plaintiff's attorneys' hourly billing rates.
E.g., Project Vote, 887
F. Supp. 2d at 710 (citing Plyler, 902 F.2d at 277) . As noted above,
the Court applies Virginia law to determine the reasonableness of the
fees Plaintiff seeks because
right to recover such fees.
Virginia law establishes Plaintiff's
See Peter Farrell Supercars, Inc. v.
Monsen,
82
F.
App'x
293,
301
(4th
Cir.
2003)
(unpublished) .
Plaintiff's additional submissions of
its attorneys'
biographical
information and information concerning fee awards in similar cases
bolsters the Court's conclusion that the attorneys' fees Plaintiff
seeks are reasonable under both Virginia law and the federal standard
for determining reasonableness.
27
magistrate
hourly
judge's
rates
report
charged
by
those in this matter,
Wright
Hospitality,
Inc. , No.
2009)
the
(unpublished)
recommendation
same
attorneys
other than Messrs.
LLC
2:07cv530,
and
v.
Holiday
2009 WL 4841017,
(finding
that
a
approving
and
paralegals
Starr and Beaman);
Hospitality
at
*7
as
Lake
Franchising,
(E.D.
partner's
the
Va.
Oct.
billing
23,
rate
of
failed
to
$465.00 per hour is reasonable).
However,
submit
the
sufficient
of Mr. Starr,
Court
FINDS
evidence
to
$565 per hour,
submitted
Hospitality,
in
Plaintiff
demonstrate
that
has
the
hourly
rate
is a reasonable hourly rate within
this area in cases similar to
Plaintiff
that
this action.
support
of
its
The only case that
motion,
Lake
Wright
approved an hourly rate $100 lower than the hourly
rate sought for Mr. Starr's services and the affidavit Plaintiff
provided involved the reasonableness of attorneys'
in
an
eminent
Although Mr.
based
on
his
domain
Starr's
matter
dissimilar
hourly rate
experience
and
the
may,
to
the
hourly rates
case
in fact,
nature
of
be
the
at
bar.7
reasonable
services
he
performed, Plaintiff has not carried its burden of demonstrating
that
Mr.
Starr's
hourly
rate
is
reasonable.
See
Chawla,
499
7 Tellingly, in the affidavit submitted by Plaintiff—an affidavit
originally used to support the reasonableness of attorneys' fees in a
different matter—while Mr. Barr opines that an hourly rate of $550 per
hour is reasonable for the lead attorney in a complex eminent domain
matter, Mr. Barr also indicates that his hourly rate did not exceed
$475 per hour.
See Affidavit of Stanley G. Barr,
16-5.
28
Jr. at 7,
ECF No.
S.E.2d at
833;
will
IN PART
DENY
Hensley,
Plaintiff's
recover fees for Mr.
per
hour.
The
services at
461 U.S.
motion
to
Therefore,
the
extent
the Court
it
seeks
of
will
only
fees
for
per hour—the
$465
award
Mr.
Starr's
rate
approved in Lake
Wright Hospitality—and will reduce the amount of attorneys'
awarded for Mr.
Accordingly,
Starr's
hours
fees
services by $150 to reflect such rate.
the Court will GRANT IN PART Plaintiff's motion and
award $121,378 in attorneys'
of
to
Starr's services at an hourly rate of $565
Court
a rate
at 437.
billed
by
fees based on the reasonable number
Plaintiffs'
attorneys,
to
date,
at
the
fees
and
reasonable hourly rates discussed above.
C.
Plaintiff
costs
that
judgment
Future Attorneys'
also
it
seeks
to
anticipates
collection
Fees and Costs
recover
incurring
in
proceedings.
Virginia
post-
law,
in
fees under a fee-shifting
attorneys'
fees for future services in connection with the case.
has
S.E.2d at
court
with
in
403
a
connection
provision
See Mull ins,
contract,
attorneys'
Under
connection with an award of attorneys'
a
the
335.
may
also
award
reasonable
The Supreme Court of Virginia
stated that
[i] f future
services of
in connection with a
an attorney will be
case,
the fact
a reasonable estimate of their value.
fact
finder
should
estimate
the
required
finder should make
time
In so doing,
to
be
the
consumed,
the effort to be expended, the nature of the services
to be rendered, and any other relevant circumstances.
29
Id.
However,
"a fact finder may only do so on the basis of a
record that allows the fact finder to make a reasonable judgment
as to future fees that, more likely than not, will be incurred."
Airlines
Reporting,
omitted).
when
a
plaintiff
the
attorneys'
Wireless
Inc.,
14,
No.
2d at
540
& n.9
(citations
presented
and
See
I:08cv421,
insufficient
necessity
id.
at
2009 WL
(unpublished)
at
Prospect
to
the
future
v.
Airbee
Akula
122795,
(citing
evidence
of
540;
fees
*2
(E.D. Va.
Dev.
Co.
v.
515 S.E.2d 291, 301 (Va. 1999); GT Warehousing Co. v.
Inc.,
Ct. Nov.
The
has
sought.
2009)
Mattrix,
At
14,
Court
sufficient
attorneys'
$30,00 0
Supp.
reasonableness
fees
Bershader,
Cir.
F.
Courts have denied an award of future attorneys'
determine
Jan.
846
Law No.
105741,
FINDS
that
to
attorneys'
fees
proceedings.
835298,
at
*1
has
Plaintiff
allow
the
fees to Plaintiff.
attorneys'
WL
(Va.
failed
to
present
1991)).
evidence
in
1991
it
fees
will
Court
to
In this case,
as
a
incur
reasonable
in
award
future
Plaintiff seeks
estimate
post-judgment
of
the
collection
While such a properly supported assertion does not
strike the Court as particularly unreasonable, the only evidence
that
Plaintiff
affidavit
of
has
its
submitted
lead
to
counsel
anticipate[s] that [Plaintiff]
support
stating
such
simply
figure
that
he
is
the
"also
is reasonably likely to expend an
additional $30,000 in fees and costs in its attempts to collect
30
the judgment entered in this case."
Gray Decl.
at 7.
Aside
from the conclusory assertion of its attorney, whose credentials
and expertise the Court does not question,
submitted
any
evidence
concerning
the
Plaintiff has not
number
of
hours
it
reasonably expects to incur in post-judgment proceedings or the
reasonable fees in this area for the sort of legal services that
will
be
required
concludes
Plaintiff
that
in
it
such
cannot
solely on the
speculative
proceedings.
award
basis
assertion
Therefore,
future
of
Plaintiff's
reasonably
Plaintiff will incur $30,000 in attorneys'
proceedings
because
the
figure is reasonable.
attorneys'
he
that
Court
cannot
See Priyam,
the
Court
fees
to
counsel's purely
estimates
that
fees in post-judgment
determine
whether such
2014 WL 7239129,
at *1,
*6
(adopting magistrate judge's report and recommendation that the
court could not
based
solely on
Accordingly,
the
award $30,000
extent
in post-judgment attorneys'
the declaration
of
the plaintiff's
fees
counsel).
the Court will DENY IN PART Plaintiff's motion to
it
seeks
an
award
of
$30,000
in
future
attorneys'
fees.
IV.
CONCLUSION
For the reasons stated above,
the Court GRANTS IN PART and
DENIES IN PART Plaintiff's Motion for Default Judgment,
11.
The Court GRANTS
ECF No.
Plaintiff's motion to the extent it
default judgment in this action,
31
seeks
but DENIES such motion to the
extent Plaintiff
rate
seeks post-judgment
established
by
28
U.S.C.
§
Plaintiff's motion to the extent
attorneys'
to
the
fees, but,
extent
the
interest in
1961(a).
excess of
The
Court
the
GRANTS
it seeks an award of reasonable
as noted above, DENIES Plaintiff's motion
attorneys'
fees
sought
by
Plaintiff
are
unreasonable.
The Court DIRECTS the Clerk to ENTER judgment against Pride
Group,
LLC,
amount
of
judgment
Pradip Shah,
Vijay
$1,693,488.11
interest
interest at the
through
rate of
the entry of judgment,
forth in 28 U.S.C.
in
Patel,
and Vijay
principal,
September
Shah in the
$275,904.09
19,
2014,
in
pre
pre-judgment
$505.69 per diem between such date and
post-judgment
§ 1961(a),
interest at the rate set
and attorneys'
fees and costs in
the amount of $121,378.
The Clerk is REQUESTED to send a copy of
this Opinion and
Order to all counsel of record.
IT
IS
SO ORDERED.
M^r
/s/
Mark S.
UNITED
Norfolk, Virginia
January £o , 2015
32
Davis
STATES DISTRICT JUDGE
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