Gordon v. Aimco, Inc. et al

Filing 133

OPINION AND ORDER that the 105 Defendant's motion for summary judgment is DENIED with respect to the previously reserved issue of the Plaintiff's entitlement to an attorney's fee award in this case; The 68 Plaintiff's motion f or summary judgment is GRANTED with respect to the previously reserved issue of the Plaintiff's entitlement to an attorney's fee award in this case; directing the Clerk to enter judgment for the Plaintiff with respect to the Defendant' s liability under Count III of the complaint, which asserts a common-law claim for conversion; directing the Clerk to enter judgment for the Plaintiff with respect to the Defendant's liability for reasonable attorney's fees incurred by the Plaintiff in connection with Count IV of the complaint. Signed by Magistrate Judge F. Bradford Stillman and filed on 3/12/2012. (rsim)

IN

THE

UNITED

FOR THE

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF VIRGINIA

Newport News Division
ANDRE

GORDON,

Plaintiff,
v.

Action

PETE'S

AUTO

SERVICE

OF

DENBIGH,

No.

4:08cvl24

INC.,

Defendant.
OPINION AND

This matter has
Magistrate

provisions
of Civil

Judge

of

28

ORDER

been referred to the undersigned United States

on

consent

U.S.C.

Procedure.

§

of

636(c)

the

and

parties,

Rule

73

pursuant

of

the

to

Federal

Before the Court are cross-motions

the

Rules

for summary

judgment.
I.

In
Auto

this

action,

Service

Cherokee,

for

which

Gordon

the

the

loss

BACKGROUND

seeks
of

defendant

his

to

recover

automobile,

towed and

of

federal

Section 307(a)

50 U.S.C.

app.

§

claim against

2002

from
Jeep

the

Pete's Auto Service

537(a),

and a

Gordon

Navy directing him to report
Norfolk-based warship.

state

law claim

received orders

to Norfolk,

On March

16,

Grand

Gordon

for violation

("SCRA"),

for conversion.

from the United States

Virginia,

2007,

Pete's

plaintiff,

was deployed.

of the Servicemembers Civil Relief Act

In January 2007,

a

a

sold while

an enlisted member of the United States Navy,
asserts a

damages

to serve aboard

he and his wife signed

a

lease

at

an

apartment

complex

in

nearby

Newport

News,

where

Gordon explained that he was subject to deployment and that during
his deployments his wife would return to their prior residence in
Jacksonville,

Florida.

On the

lease,

Gordon identified his

2002

Jeep Grand Cherokee and provided emergency contact information for
his

wife.

Gordon's ship was

which
was

time his wife

away

on

complex's

deployed,

subsequently deployed in late March 2007,

returned to their home

deployment,

parking

Gordon

lot.

In

left

May

his

2007,

be

towed.

On May

away and then

Service
the

sold

$1,200

stored

the
lien

Pete's Auto
Service

17,
it

wife,

nor

Jeep

in

while

While he

the

Gordon

asserted

nor

did
its

addition

the

Pete's
lien

On December
to

35 days.

it

had

on

17,

flat tire

Pete's Auto

to

apartment

was

still

itself

and requested that

Service

On June

22,

at

auction

for

towing

towed

2007,

in

re-titled in

for

$4,500 on June

apartment
Auto
the

2008,

Pete's

its

and

complex

Service

own name

25,

2007.

a

Pete's Auto

storage

court

of

fees.

Pete's Auto

and then

contacted

obtain

the Jeep

satisfaction

the only bidder in attendance.

had the vehicle

enforcing

In

for

Service was

Service

2007,

vehicle

Jeep to a third party
Auto

Florida.

a representative of the apartment complex notified Pete's

Auto Service that Gordon's Jeep had a
it

in

at

sold the

Neither
Gordon
order

Pete's
or

his

before

vehicle.

Gordon filed the

Auto

Service,

-

2

-

complaint in

the

complaint

this case.
named

the

apartment

management

defendants.

The

subsequently

company

four

dismissed

and

apartment

from

the

companies

defendants

pursuant

to

Rule

41

as
were

of

the

leaving only Pete's Auto Service

a defendant.

On November 17,
case

sua

private

sponte,

right

Gordon v.
(E.D.

right

finding

2009).

into
of

13,

14,

SCRA

for

monetary

recover
See

2011,

at

4 61.

availability
On

judge,

the

and

costs,
Pub.

L.

app.

§

637

to

670

provide
See

F.

for

a

generally

Supp.

2d 453

F.3d 454,

Circuit

Act

to

permit

2010

a

was

private

allow

prevailing

including

reasonable

No.

111-275,

597a);
457

Gordon

(4th Cir.

reversed

statute

of

124
v.

Stat.
Pete's

2011).

On

remanded

not

was

and

this

impermissibly

compensatory and punitive damages.

Fourth

Circuit

fees

case

-

under

declined

to

the

new

statute.

to

proceed

was

3

-

reassigned

to

See

consider

consented

parties

the

and

802,

amended

attorney's

remand,

magistrate

law.

expressly

U.S.C.

50

the

The

of

at

Benefits

damages,

Fourth

retroactive with respect
at

§

Inc.,

the

that

to

litigation

SCRA

Denbigh,

finding

not

Inc.,

the

(codified
of

of Denbigh,

Veterans'

2864,

Auto Serv.

did

recover damages

the

fees.

2878

SCRA

amending

action
to

the

2010,

attorney's

case,

that

Gordon appealed.

law,

plaintiffs

February

the Court dismissed the remainder of the

of action to

October

signed

2009,

Pete's Auto Serv.

Va.
On

id.

related

management

case

Federal Rules of Civil Procedure,
as

three

the

See

the

id.

before

a

undersigned

pursuant to the provisions of 28 U.S.C.

Federal Rules of Civil Procedure.
filed

a

motion

for

summary

§ 636(c)

On June 20,

judgment.

On

and Rule 73 of the

2011,

October

the plaintiff
11,

defendant

filed its own motion for summary judgment.

2,

the

2011,

Court

summary judgment.
the plaintiff.
defendant.
On

held

a

Rebecca

hearing
S.

Richard H.

Colaw,

Roston,

The official court

December

2,

2011,

on

these

Esq.,

Esq.,

2011,

the

On November

cross-motions

for

appeared on behalf of

appeared on behalf of the

reporter was Tami Tichenor.

the

Court

issued

an

Opinion

and

Order

denying the defendant's motion for summary judgment and granting in
part

and

denying

judgment.

Gordon

4:08cvl24,

2011

the

at

*7.

the

Court

defendant's

SCRA

and

Court

sua

Pete's

6024538

of

an

Auto
(E.D.

fee

for

violation

denied

sponte

both

raised

common-law

the

be

granted

party

to

has

the

2011).

In

No.
that

ruling with respect
this

case.

with

respect

Section

Id.

under

at

of

307(a)

of

Id.

to
the

*3,

*5-*7.

the

defendant's

Count

III

of

The

the

to show cause why summary judgment

plaintiff

with

conversion.

-

Inc.,

in

question

conversion

responded

common-law

2,

summary

motion

of

motions.

for

Denbigh,

award

liability

should

for

Dec.

plaintiff's

directing the parties

liability

of

the

complaint,

Neither

Va.

attorney's

for

*7.

Serv.

motion

expressly reserved

liability

not

plaintiff's

granted

otherwise

also

the

the Court

availability

The

part

v.

WL

Opinion and Order,
to

in

4

-

on

this

respect

issue.

to

the

Id.

at

*4,

defendant's

In this Opinion and Order,

the Court

returns to the issues of

the defendant's liability for conversion and the availability of an
attorney's

fee award
II.

MOTION

Under Rule

judgment
to

56

any material

it

477

"genuine"

the

R.

Civ.

Fed.

affect
U.S.

the

242,

only

summary

if

and

in

the

Floor

Fashions,

Inc.

Cir.

party

motion,"

and

material

fact.

the movant

specific

is

P.

no genuine

entitled

56(a).
of

is

A fact

the

case.

A

dispute

"is

Procedure,

such

to

is

the

most

v.

Court

that

must

favorable

Burlington

to

judgment

v.

material
a

view

the

Indus.,

dispute as

Anderson
of

as

Id.

a

only

Liberty
fact

reasonable

is

jury

In deciding

the

record

nonmovant.

Inc.,

summary

"material"

for the non-moving party."

the

as

a

Terry's

763

F.2d

"bears

judgment

informing the district

makes

such

a

supported

a

absence

of

v.

Catrett,

477

showing,
by

the

sufficient

Anderson,

court

the

Celotex Corp.

facts,

jury."

summary

demonstrating

evidence presents
to

movant

Civil

"there

evidence

seeking

responsibility of

If

of

STANDARD

the

604,

610

1985).

The

Rules

(1986) .

motion,

light

JUDGMENT

if

outcome

248

the

judgment

whole

(4th

Federal

and

could return a verdict
a

case.

FOR SUMMARY

of the

fact

law."

might

Lobby,

this

should be granted only

matter of
if

in

477

the

record,

U.S.

-

5

at

-

of the basis

a

genuine

U.S.

nonmovant

317,

251-52.

to

323

must

require

for

its

dispute

demonstrating

disagreement

initial

of

(1986).

set
that

forth
"the

submission

When confronted with cross-motions
standards

judgment
F.2d

upon which

do

240,

not

the

change."

248

(6th

316

F.3d

v.

mere

fact that both

Harshbarger,

establish

that

no

requiring that

1992);

F.2d 214,
dispute,
that

Am.

216

122

genuine

Ltd.
Fid.

be

58,

(4th Cir.

judgment

may

motions.

be

may

be

See Am.

Fid.

&

Cas.

tort

for

of

side

Inc.,
&

955

Co.,

damages

Liability

his

against

them,

354

for

fact

thus

or the other.

See

F.2d 242,

244

(4th

Co.,

354

are not

in

to the inferences

which
the

F.2d at

does not

exists,

as

in

The

case

denial

summary
of

both

216.

Conversion

complaint,
the

1977)).

ANALYSIS

of

III

Cir.

Edinburgh Ins.

necessitating

A.

Count

each

Philip Morris

if the basic facts

from

inappropriate,

929

Rossiqnol v.

material

London

Even

drawn

review

for summary judgment

Combe

1965).

States,

law.'"

(1st

to one

v.

must

summary

(quoting

n.4

granted

III.

claim

of

the parties may nevertheless disagree

reasonably

In

62

of

Co.

for

United

Court

2003)

dispute

P'ship v.
& Cas.

v.

a matter

(4th Cir.

F.3d

Co.

motions

"the

*to determine whether either of

sides have moved

judgment

Worldwide Rights
Cir.

own merits

523

the

"[T]he

judgment as

516,

Inc.

Broad.

1991).

its

the parties deserves

evaluates

Taft

Cir.

motion separately on

Voorhaar,

court

for summary judgment,

Gordon

defendant,

conversion.

-

6

-

asserts

alleging

a

the

state

law

common

law

To assert
prove

by

a
a

claim

for

ownership or

right

the

the

time

of

exercise

of

the
of

Airlines
{E.D.

Reporting
2001)

359,

the

is

Corp.

{Va.

thus

(i)

the

the property at

(ii)

control

purely

and

Knowledge

by

the

wrongful

defendant

over

depriving plaintiff

may

supposed

question."

Pishvaian,

be

that

is

155

v.

he

v.

a

mental

specific

Corp.

2d
v.

state

659,

664

Kaplan,

reguired

92
for

intent

to

appropriate

to

another,

Stockton,

liable
a

United

Supp.

property belongs

the

had

F.

Credit

unauthorized

held

that

Morissette

"The

simply

United States

"[0]ne

reasonably

v.

1956)).

appropriation

necessary."

1986).

or

plaintiff must

evidence
of

and

(citing Universal C.I.T.

365

property.

that

dominion

a

the

to possession

conversion

plaintiff's property,

conversion
the

of

possession.

Va.

S.E.2d

conversion,

preponderance

in

by

788

the

owner,

F.2d 210,

conversion

legal

right

to

216

even
the

States,

342

U.S.

vehicle at

the

time

is

or

not

(4th Cir.

though

he

property

in

246,

270

n.31

(1952).
Gordon's
conversion

is

ownership of

the

undisputed.

It

is

further

transferring title to the vehicle to itself,
to a
over

third party,
Gordon's

Pete's

Auto

wrongful

Service

thus

suggests,
it

depriving

however,

strictly

requirements of Virginia Code §
against

Gordon's

the

undisputed

alleged

that,

in

and then subsequently

Pete's Auto Service exercised dominion or control

property,

because

of

Jeep.

-

that

complied

43-34

7

-

Gordon

its
with

of

possession.

actions
the

in enforcing its

were

not

procedural

storage lien

The

plaintiff

complied with
is

not

the

material

assuming

Service

the

defendant's

Pete's

Auto

established

comply with
to

Section
obtain

Gordon's

that

it

by

a

court

That
had

a

of

Pete's
legal

See

Morissette,

defendant

had

no

obtaining

legal
a

court

constitutes

the wrongful

plaintiff's

property,

Accordingly,

plaintiff with
of

the

complaint,
B.

In

its

Section

802(b)

1
person

as

Fees Under

question
of

applied

Section

the

to

802(b)

aggrieved

by

a

of

this

provides
violation

-

no

the

Jeep

without

the

vehicle

of

possession.

summary

to

claim

802(b)

of

"The

conversion.

the

SCRA

2010

declined to

enactment

who

of

retroactive

F.3d at

court

SCRA]

III

for

impermissibly

637

the

the

liability under Count

October

[the

over

judgment

Fourth Circuit

an

that:

-

Because

of

Gordon,

8

of

control

the

of

is

or

the

case.1

against

dominion

Section

created

to

mistakenly

Jeep

the

acquisition

grant

decision,

SCRA

to

failed

lien

have

the

the

Pete's Auto

n.31.

title

common-law

whether

with

plaintiff

the

a

its

may

270

to the defendant's
asserts

required

re-title

take

will

fully

enforcing

at

of

February 2011

the

to

exercise

Even

certainly

Service

its

Court

which

Attorney's

address

effect

respect

Auto

most
which

before

order,

depriving

the

it

SCRA,

to

issue

conversion.

for

but

strictly

this

complied

U.S.

right

Service

43-34,

liability

right

342

Auto

Code §

law,

the

order

moment.

first

Pete's

Service

state

307(a)

vehicle.

believed

whether

requirements of Va.

to

that

procedures

disputes

461.

may award
prevails

The

to
in

a
an

Fourth

Circuit

respect

to

In

its

judgment

under

the

to

of

the

the

of

decision,

the

2011

had

802(a)

to

yet

Court

granted

the defendant's

which

6024538,

sought

at

*3.

defendant's

plaintiff's

liability

entitlement

resolved,

firmly

under

SCRA.

the

Section

802{b)

As

the

is

458

maxim

Fourth

is

retroactivity"

conduct

that
To

a

is

not

which

Congress

brought

n.4.

of

in

in

a

"instructs

the

has

ask

the

under

reasonable

not

this

from

is

statute's

proper

stated that

§

802(a)]

attorney

-

fee."

9

-

a

the

F.3d

at

statutory
statute

into effect."

to

Id.

prevents

any

has

case,

(1988)).

given

First,

expressly

reach."

the

50

637

208

apply

in

party

whether

this

against

appropriate.

Congress

[SCRA

in

204,

presumption

applying

has been

of

Gordon,

U.S.

the

ripe.

noted

to

and

prevailing

now

statute went

"whether

clearly

is

presumption

three-step analysis
must

488

SCRA

minimum,

a

scope

jury trial,

question

law."

courts

the

whether

statutes

The

previously

damages

Section 307(a)

the

at a

retroactive

Georgetown Hosp.,

determine
a

&

has

took place before

court

including a

*5

favored

reflected

prescribed

action

at

Circuit

intervening

case,

id.

of

damages,

liability

Although the

the plaintiff as

impermissibly

(quoting Bowen v.

"This

violation

nominal

establishing
See

"[r]etroactivity

to

for

summary

monetary

and amount of the damages award has been reserved for a
the

with

Id.

defendant's violation
WL

prevailed

claim.

this

respect

complaint,

of

Gordon,

party

Section

2011

the

result

SCRA.

no

plaintiff with

IV
a

that

plaintiff's

December

Count

incurred as

reasoned

If

statute

should

costs

U.S.C.

of

app.

the

§

action,

597a(b).

be applied retroactively,
resort

to

If

"the

command,"
second
have

statute

however,

retroactive

particular

court
operate

.

.

is

."

not

If

not

to

unless,

the

third

then

apply
step

congressional

to

triggered,

the

the

and

Congress's
new

the

presumption

statute

the

latest

statute

would

must

pre-enactment

of

to

statute would

the

the

to

express

applied

to
the

retroactively,
in

new

as

effect

construed
"clear

the

then

not,

such

proceeds

If

"give

.

no

court

effect"

retroactivity

enactment

a

"whether

case.

must

rules."

contains
then

step and asks

against

then "there is no need to

judicial default

be

conduct

analysis,

there

favoring

intent

such

is

a

result."

Id.

(quoting Landgraf v.

and

Plaut

v.

{citations
The

USI

Spendthrift

Film Prods.,

Farm,

Inc.,

511 U.S.

514

U.S.

244,
211,

280
227

(1994),
(1995))

omitted).

Fourth

whether

Congress

Section

802,

included nor

statute."2

Circuit

has

has

already

expressly

concluding

that

considered

prescribed
"Congress

excluded pre-enactment

the

has

conduct

the

first

proper

reach

neither

from the

step,

of

expressly

reach

of

this

Id. at 459.

2 The Court notes that the United States Department of Justice
recently proposed an amendment

statute expressly retroactive,
the

proposal

as

Att'y Gen.,

U.S.

Hon.

Joseph

R.

John

A.

2011)

yet.

Section

802

that would make the

but Congress has taken no action on

Letters

from

Ronald

Weich,

Assistant

Dep't of Justice Office of Legislative Affairs,

Biden,

Boehner,

See

to

Jr.,

Speaker

President

of

the

of

U.S.

the

U.S.

House

of

Senate,

Reps.

to

and

Hon.

(Sept.

20,

(enclosure
at
4)
(proposing
the
addition
of
§ 802(c),
"[t]his section applies to any violation of this Act

providing that
occurring

on,

before,

or

after

October

13,

2010"),

http://www.

justice.gov/crt/spec_topics/military/document/letterslegprop.pdf.
-

10

-

The

Fourth Circuit considered the second step of

only with
as

respect

a matter

the

of

As

Section

first

plaintiff's

effect.

to

impression,

claim

the

802 (a).

for

Fourth

Thus,

this

Court

whether applying

attorney's

Circuit

fees

has

this

considers,

Section

would

have

previously

analysis

802(b)

to

retroactive

observed

in

this

case:

A

statute

because

does

it

conduct

not

is

have

antedating

Rather,

a

statute
new

legal

before

its

"impair[ing]
acted,

or

(quoting
1.

Attorney7 s

511

the

conduct,

or

transaction

services

by

plaintiff's

legal
511

services

U.S.

"regulate
to

the

at

suit"

determinations
and

'uniquely

.

liability

for

new

U.S.

Court

at

duties

at

269,

notes

270,

separable

he

past

respect

to

280).

the

the

pertinent

Martin

v.

attorney's

of

from

the

-

11

id.

to

event,

at

.

277

the main
of

action

of
.

legal

527

U.S.

incurred

statute);

application

cause

-

Hadix,

fees

than primary conduct

'collateral

Services

the performance of

enactment

retroactive);

are

is

See

that

.

with

that

issue here

counsel.

rather

by

completed."

after

not

.

example

when

(noting

is

for

it

events

possessed

and

secondary

when

to

party

(distinguishing

before
275

enactment."

retroactively

Fees for Post-Enactment Legal

Preliminarily,

(1999)

statute's

from

party's

a

already

Landgraf,

361-62

a

"merely

arising

consequences

impos[ing]

transactions

effect

case

enactment,"

rights

increas[ing]

conduct,

a

the

completed

343,

in

operates

"attaches

Id.

retroactive

applied

for

Landgraf,

rules
giving

.

that
rise

("Attorney's

cause
to

be

fee

of action'
proved

at

trial.'")

451-52

{quoting White v.

(1982));

("Unlike

ordinary

restitution,
for

the

award

Hutto

an

injury

seeking

important

of

parties

that

during

October

2010,

361-62;

437

of

costs

U.S.

not

him

for

portion

of the

relief.

.

.

.

n.24

such

as

damages

into

[T]he power

litigation.").

with

see

respect

to

is clearly not
also

An

award

legal

to

retroactive.

Landqraf,

511

U.S.

at

affects

prospective

relief,

application

of

the

retroactive.").

This

Thompson v.

Bd.

Sch.

{en bane)

Court will

of

of

grant

Newport

416

News,

the

incurred in

assess

costs

is

liability

802(b)

on

legal

for

U.S.

696

performed

273

the

of

after

527 U.S.

("When

the

propriety

is

not

in this Circuit.

See

F.2d

provision

of

177,

178

(4th

Cir.

reasonable

13,

-

(1974) .

Accordingly,

to the plaintiff with respect

services

October

472

plaintiff

overruled on other grounds by Bradley

summary judgment

for

new

long been the rule

Richmond,

by the plaintiff
Section

has

(per curiam),

the defendant's

of

or

plaintiff

See Martin,

or

Bd.

he

the

services

authorizes

Sch.

to

(1978)

Instead,

expenses

statute

v.

the

court.

intervening

1972)

445,

695

compensate

brought

a

455 U.S.

678,

relief

does

Sec,

and well-recognized tool used to restrain the behavior

fees

at

Finney,

first

him

attorney's

13,

Dep't of Emp't

^retroactive'

prospective

an

v.

award

reimburses

N.H.

-

fees

performed after the

2010.

12

attorney's

the
to

incurred

enactment

2.

Attorney7 s

Whether

attorney's
October

Court

authorizing

sexual
Act

above,

the

the

of

damages

for

See

at

States

cases

brought

Court

with

the

as

analysis

that

it

a

512

closer

U.S.

reasonable

question.

244

considered

a

(1994),

new

the

statute

to

the

a

held

VII

the

Civil

set

forth

that

a

where

of

analysis

three-step

claims

in

Title

created

new

the

this

to

was

monetary

none previously existed.

case

application the

resulted

802(a)

violation

statute

right

Fourth Circuit's

Section

respect

is

under

ultimately

Of course,

finding

awarded

compensatory and punitive damage awards

harassment

three-step

802 (b)

Products,

retroactive,

sexual

be

Services

services performed before the

Film

Adopting

Supreme

retroactive

Section

recovery of

280-85.

result—a

to legal

may

United

the

1964.

impermissibly

Landgraf

of

USI

harassment

Rights

id.

v.

of

Pre-Enactment Legal

plaintiff

respect

enactment

Landgraf

Supreme

for

prevailing

fees with

2010

In

in

the

Fees

was
of

in

not

Section

the

opposite

impermissibly
307(a)

of

the

SCRA because monetary damages were already available under Virginia
conversion

As

law.

noted

determine

issue

is

court's

Gordon,

above,

whether

reasonable

802 (a),

See

now

ripe,

extensive

and

802(b),

fees

impermissibly

F.3d

Fourth

Section

attorney's

was

the

637

by

a

454,

Circuit

Court

discussion

-

prevailing

finds

of

13

expressly

providing

retroactive.

this

460-61.

See

the

party

id.

at

instructive

Bradley

-

for

v.

declined

to

recovery

of

under

Section

461.

But

the

School

the

Landgraf
Board

of

Richmond,

416

considered

a

U.S.

696

similar

statute,

Aid Act,

authorizing

a

desegregation

school

(1974),

the

in

Section

recovery of

case

which
718

the

of

reasonable

brought

under

Court

Emergency

the

Supreme

School

attorney's

in

Rights Act

the Civil

fees

of

1871.

In Landgraf,

in

the

Supreme Court

summarized its

earlier decision

Bradley:

The Court

of Appeals

fee

provision

for

services

the

amendments.

that

the

This

their

decision

"on

law

decision,

unless

injustice

or

legislative

Supreme

511

doing

presumption
of

settled

class

new

provision at
cases

in

against

issue

statutory
main

Moreover,

fees

based

the

the

.

a

.

[T]he

invoked

of

at

711).

all

of
even

had

the

authority

fees

-

14

-

be

the
fee

"uniquely

be

proved

enactment

...

principles.

would

fee

"collateral

and
to

the

presumption

Attorney's

action

before

of

genuinely

resemble

are

action"
of

new

the well-

attorney's

the

observed,

equitable

that

or

categorical

have

of the prior availability of a

likelihood

U.S.

application

would

Bradley did not

cause

courts

upon

.

have

cause

trial."

light

416

retroactivity.

from

federal

that

have

we

separable

718,

of

against

in

we

determinations,

§

Bradley,

Bradley did not alter

effect.

which

the

direction

that:

statutes

"retroactive"

to
its

in manifest

application

.

to

contrary."

suggests

.

is

renders

result

favor

.

718

resting

court

it

statutory

(quoting

presumption

of

would

§

a

time

of

concluded

fees,

that

the

fees

date

We

language

in

law,

at

of

on

rely

attorney's

is

clarified

that

reversed.

to the

then

rules

277

award

effective

could

so

there

history

the

the

principle

effect

at

Although

to

for

U.S.

Court

Court

the

in

held that the new

authorize

parties

claim

apply the

Landgraf,

not

rendered before

private

support
our

did

[in Bradley]

at

of

to award

...

In

fee award,
assessed

and

under

The

pre-existing

fee

statute

or

unforeseeable

Landgraf,
N.H.
416

511

Dep't
U.S.

Emp't

the

the

damages

award

277-78

Sec,

Supreme

that

impose

upon

U.S.

the

new

an additional

the

school board.

(citations omitted)

455

445,

451-52

from

and
had

Bradley
Court

attorney's
at

issue

"collateral"

action;

concluded

not

the

(quoting White

(1982),

v.

and Bradley,

721) .

between

courts

at

we

"d[id]

obligation"

distinguishing

Landgraf,

was

U.S.

of

at

In

theories,

simply

(2)

identified

fees
in

award

at

Landgraf:

facts

two

material

issue

(1)

presented

the

in

in

differences

Bradley

attorney's

and

fees

the

issue

and "uniquely separable"

from the primary cause of

even

was

before

authority

to

the

statute

award

attorney's

enacted,

fees.

the

See

federal

id.

Both

factors are also present in this case.3

3 The Court
case

and

the

Court

pauses

Bradley,

not

to note a

enumerated

nonetheless

finds

plaintiff's desegregation
high

priority."

similarly

^obvious

involves

and

compelling
U.S.

280,

500,

509

a

307

the

(1981)

(1964)).

416

that

security

325

(1953)

(finding

power

to

to

its

declare

end

"within

For

this

of

Wissner

enhancing

reason,

to protect

the

See

at

719

of

high

no

n.27.

which

Nation."

This

priority.

governmental

the

the

interest
Haig

v.

case

"It

is

Agee,

Sec'y of State,

Dameron v.

SCRA's
a

constitutional

the

but

Bradley,

"vindicated a national policy of
U.S.

of

court,

In

378

is

more
453
U.S.

SCRA is an exercise of congressional powers

exercise

war);

(noting that

Landgraf

(quoting Aptheker v.

The

over the national defense.
congressional

the

policy

national

unarguable'

than

by

persuasive.

lawsuit

Bradley,

third similarity between this

v.

predecessor

"necessary
power

to

Wissner,

"the morale of

congressional powers
"[t]he

[SCRA]

is

Brodhead,

and

raise

338

statute

proper"
and

U.S.

655,

always

15

-

armies

660-61

the
and

(1950)

legitimate

the national

defense").

be

liberally construed

those who have been obliged to drop their own

-

be

a

to

is

to

322,

supplementary

support

servicemen"
over

345 U.S.

affairs to

The Supreme Court has

fee

determinations

action'

and

proved at
52);

.

.

.

^uniquely

trial.'"

are

'collateral

separable

See

see also Hutto,

repeatedly recognized that "[a]ttorney's

id.

437

from

at 277

U.S.

at

services

had been

cited

Landqraf,

in

(noting

that

effected

a

rendered but
511

statute

"no change

Spraque v.
petition

proceeding

in the

Club,

standalone

Inc.

v.

federal

Civil
to

Rights Act of

the

plaintiff

underlying,

Section

and

802(a)

Moreover,
13,

2010,

take

up

561,

575

this

the

of

to

even
Court

burdens

the

action

455 U.S.

of

to

be

at 451-

statute passed after

case

n.33;

was

still

Bradley,

recovery

U.S.

original
447

U.S.

for

local

416

of

pending) ,

U.S.

at

attorney's

721
fees

161,

170

fees

(1939)

to be

"an

proceeding");
54,

66

(1980)

attorney's

proceedings

fees

under

(finding a
independent

cf.

New York

(permitting a
incurred

Title VII

this

case

is

claim

similarly
for

collateral

monetary

in

of the

An award of reasonable attorney's

successful,

the

307

the

Carey,

and

of

cause

(recognizing the "general

under a

of attorney's

1964).

in

279

Bank,

lawsuit

connection with state

cause

main

substantive obligation of the parties");

reimbursement

supplemental

fees

while

at

the

{quoting White,

permitting

Ticonic Nat'l

for

Gaslight

U.S.

the

695 n.23

practice" of awarding attorney's

to

fees

to

damages

his

under

SCRA.

before
had

of

Section

802(b)

authority

the

to

nation."

(1943).

-

16

-

was

award

Boone

enacted

on

attorney's

v.

Lightner,

October

fees

319

to

a

U.S.

prevailing

right

of

plaintiff

action

recognized
sensible
Gebser
Thus,

is

that

court

to

has

scheme

Lago Vista

prior

the

Indep.

had "great

latitude

Tex.

66

see

(1992)

3,

2010)

courts

remedies

unless
its

amendment

that,

"presume

November

SCRA did not

Gordon,

v.

Fin.

Corp.,

that

decision

Although

4

It

should

expressly
equitable
Supp.

2d

also

recognized
relief
at

455

under

be

to

a

shape

284

(1998).
court

SCRA already

Cnty.

a

Clauer v.

2010

WL

judge's

Pub.

Tex.

at

all

*4

and

June

16,

U.S.

60,

503

right

of

Heritage

report

Sch.,

private

fees,

2465363,

(E.D.

a

statute."

federal

the

has

of

action,

appropriate

expressly indicated otherwise").

670 F.

an

this

878,

reversed

that

implied

the

pre-amendment

-

right

the

Fourth

Court

right

SCRA.

the
of

pre-

action

(citing Davidson

(N.D.

this

private

n.4.

17

private

that

881

by

an

-

held

2d at 455-56

Supp.

noted

Court

implied

Supp.

F.

was

SCRA."

2465240

decision,

295

Court

the

274,

private

including attorney's

availability

include

for damages.4
Gen.

has

2009

WL

implying

the

Congress

U.S.

(magistrate

Gwinnett

in

with

of action under

of

a

latitude

802(b),

4:09-cv-560,

2010

Franklin v.

federal

In

adopted,

(noting

524

Section

the purposes
No.

June

also

of

of

where

Supreme

comports

Dist.,

right

Ass'n,

recommendation),
2010);

best

one,

the

measure

in awarding damages,

especially considering

(E.D.

For

implied,

Sch.

enactment

implied private

Homeowners

SCRA.

"a

that

finding an

Lakes

the

judicially

the

remedial

v.

under

See

Ga.

1968)).

Circuit

on

nevertheless

of

action

Gordon,

670

for
F.

appeal,

the

statute.

reversal

See

Gordon,

was
637

not decide whether an

See

id.

This
in

at

federal

did.

courts

§

Frazier v.

2009

527);

WL

right
v.

at

of

Jan.

SCRA §
No.
July

*4

31,

00-2001-M,
2001)

2010

*4-*5

of

however,

is

enactment

(M.D.

Mar.

13,

207,

existed
it did

not dispositive
of

2009)
50

§

537);

No.

Section

judge's

-

802,

of the

U.S.C.

18

-

19,
207,

13150,
report

U.S.C.

2009)
50

app.

U.S.C.

§

right
First

527);
at

2009

WL

Linscott
*5-*7

(D.

of action under
Republic

*17-*19

and

app.

implied private

240529,

at

an

(finding

l:08-CV-361,

app.

2006 WL

50

(finding

8:08-CV-02396-T-

(finding

Cathey v.

LEXIS

No.

§

*4

501,

Nov.

SCRA

Co.,

at

§

Inc.,

implied private

Dist.

(magistrate

SCRA

Fla.

under

CV-05-682-HU,

app.

2465363,

Servs.,

Bank Trust

(finding

U.S.

WL

under

action

SCRA §

No.

U.S.C.
2001

for damages

did

right of action had concluded that

action

Mich.

under

2006)
50

of

Deutsche

(W.D.

action

307,

6,

Fourth Circuit

the October 2010

at

right

Vector Aerospace,

Or.

The

action

amended

simply assuming arguendo that

HSBC Mortg.

4015574,

Hurley v.

701006,

SCRA,

Clauer,

right

implied private
§

457-61.

of

newly

examining whether particular provisions

Compare

private

24,

the

right

implied private

implied
561);

at

on

n.l.

Prior to

SCRA provided an
they

entirely

Court's November 2009 ruling,

any event.

most

459

F.3d

implied

under the pre-enactment
not.

based

Bank,

(W.D.

La.

recommendation)

(finding implied private right of action under SSCRA5 precursor to
SCRA §
(W.D.

1998

207,
La.

WL

U.S.C.

Aug.

13,

1765716,

private
U.S.C.

50

right
§

518,

Fin.

(N.D.

111.

under

SSCRA

McMurtry

1993)

Mar.

v.

U.S.C.
(N.D.

Ga.

of

Largo,

revised

Soldiers'
revision

207,
F.

(finding

881

and

and

app.

301,

50

2003,

Stat.

1178

(1940),

It

Civil

(codified

as

Moll

v.

142411,

at

*2-*5

right of action
§

527),

with

1157-58

(M.D.

Fla.

action

under

and SCRA §

right

app.

Act

§

of

SSCRA

206,

action

531);

right

by

50

1374
under

Davidson,

of

295

action under

at

50

been

1940

Relief

L.

app.

as

the
The

sections

the

Act,

108-189,

U.S.C.

known

("SSCRA").

existing

Civil

Pub.

had
of

of certain

amended

amended

50

309 F. Supp. 1372,

previously
Relief

Servicemembers

as

108,

532);

§

§

app.

522,

private

U.S.C.

SCRA

the Servicemembers Civil Relief Act

included renumbering
generally

§

implied private

renamed.

See

of

Davis,

implied

(finding no

Sailors'

WL

1155,

right

U.S.C.

no

SCRA §

to

U.S.C.

Supp.

private

50

50

13195

(finding implied

app.

1998

Dist.

3:97-CV-2784-D,

1998)

U.S.C.

5044,

§ 526);6 Huffstetler v.

Act.
(2003)

§

837

202,

5 On December 19,
was

SCRA

implied

1970)

at

to

No.

precursors

50

C

21,

U.S.

(finding implied private

no

SSCRA precursor to

Supp.

1998)

Sept.

302,

97

2001

Armstrong,

SSCRA

§

No.

adopted,

v.

Tex.

SCRA

SCRA §

to

app.

Marin

under

Co.,

precursor
City

527),

(N.D.

and

23,

(finding

precursors

F.

*3

action

Consumer

Ford

app.

§

2001);

at

of

app.

§§

ch.

117

501

of
888,

Stat.

et

54

2835

seq.).

6 It must be noted that the McMurtry decision was subsequently

distinguished by

McMurtry7 s

the

application

tolling provisions
found

an

Frazier,

same

implied
2009

WL

of

district

to

the

the

SCRA.

private

right

4015574,

at

court

stay
As
of

19

and

Frazier,

statute

which

of

noted above,

the

action

SCRA

*4-*5.

-

in

-

under

limited

limitations

Frazier
§

207.

court
See

SSCRA precursor to SCRA § 201,
the

only

one

of

307

that

2006

enforcement
order,

in

in

Court

equity
the

a

240529,

absence

suits

to

at

to

litigation

*5-*7

included
Id.

such

costs

in

at

the

164.

The

of the

Corp.,
15,

on

No.

3:07-CV-1415-M,

2008),

Tex.

Mar.

CV-361,

reconsideration.

See
WL

2008

12,

2008

2008);
WL

Hurley v.

4539478,

at

413627,

Bank,

court

U.S.

federal

expenses

action,

equitable

307

in

entailed by

Court

is

courts,"

161

courts

taxable

costs

noted that

part of the

including the

finding no implied

v.

Subway

at

*7

Mich.

Real

(N.D.

2008 WL 5136636,

(W.D.

of

under

Deutsche Bank Trust
*6-*7

a

subsequently vacated or

Batie

vacated on reconsideration,

See

537).

situations

right of action under the SCRA were

reversed

§

fees

7 Two additional federal court decisions
private

found

defendant's

right

Supreme

federal

case,

obtaining

ordinary

in appropriate

historic equity jurisdiction

the

private

and other

address

did exist.

app.

National

Notably,
to

this

"the power of

fees

not

"[a]llowance of

first

U.S.C.

implied

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counsel

in

for damages

award attorney's

statute."

recognized by

decisions

(addressing

50

addressed

§ 521).7

issue

without

307,

an

v.

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allow

court

action

lien

of

Sprague

Supreme

of

SCRA §

authority

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the

of

app.

the provision at

mechanic's

the

had

principles.
(1939),

WL

violation

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this

of

SCRA,

federal

implied private right

Linscott,

the

other

Section

an

of

these

50 U.S.C.

Tex.
at

Co.,

Sept.

Estate
*1

No.
30,

Feb.
(N.D.

1:082008),

rev'd on reconsideration, 2009 WL 701006, at *4
(W.D. Mich. Mar.
13, 2009) .
The Batie court went on to dismiss the case on other
grounds,

but

it

had previously
SSCRA

should also be

found an

precursors

1765716,
finding

at
an

*3.

to

As

noted

that

implied private

SCRA

§§

108

noted above,

implied private

302.

same district

of

20

-

action

court

of action under the
See

the Hurley court

right

-

and

the

right

under

Marin,

1998

WL

reversed itself,
SCRA §

207.

award

of

"fair

justice

to

noted

above,

this

right

of

in

"costs

action

between

the

other party will

Court

for

solicitor

expressly

equitable

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held

granting equitable

that

remedies

an

award

available

Raffaele,

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implicit

894

F.

private
to

plaintiff

or

to

October

obligations

impair
the

any

637

previously

defendant's

duties

with

F.3d

passage

.

.

existing
for

in
.

of

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allowing
[T]he

2010

the

Landgraf,

award

of

the

511

the

equitable

Indus.,

at

a

Court

Section

they

or

at

had

802(b).
change

previously

721.

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impose

completed.

an

prevailing

defendant,

U.S.

Inc.

contained

nothing to

as

conduct,

455

previously

to

did

of

2d at

this

of

U.S.

SCRA

have

SCRA

fees

416

private

See

280).

did not
increase
any

hew

Gordon,

"Because

albeit under different principles,

statute,

the

the

As

1995).

damages,

already

Supp.

Omega

defendant

past

F.

Nev.

802(b)

extent

164-65.

implied

among

enactment

rights

transactions

(citing

of

attorney's

Bradley,

fees were available,

injustice
case.

459

(D.

the

pre-amendment

e.g.,

1430-31

Section
of

See

liability

respect

at

attorney's
before

SCRA.

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to
at

courts

is

for

reasonable
the

fees

action

the

the

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307

enactment of

existed under

670

SCRA.

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substantive

the

Section

of

an

See Gordon,

1425,

not

right

award

prior

Supp.

Id.

under

relief,

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client'"

recognized

attorney's

under

whether

authority

of

and

permit."

relief

its November 2009 decision.

n.4.

v.

'as

fee

.

.

21

there

statute

statutory

-

.

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to

[is]

no

apply

attorney's

fees

manifest

in

[this]

[does]

not

upset any reasonable expectations of the parties."

U.S.

at

360

(citing

Bradley,

416

U.S.

at

See Martin,

720-21)

527

(citations

omitted).
Accordingly,

this

case is

cause

of

statute

fees

to

high

U.S.

at

successful

priority."

generally

supra

matter of law,

that

the

prevailing

party

impermissibly

if

defendant,

he

the

under

Moreover,

a

of

416

Section

legal

13,

the

802(a),

Therefore,

the plaintiff with

at

Court

719

attorney's

claim.

See

that

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n.27.

See

concludes,

this

the

the

national policy

attorney's

in

before

notes

802(b)

respect

fees

services performed before the

on October

SCRA

the Court

U.S.

result,

liability for reasonable attorney's
for

his

"vindicated a

reasonable

retroactive.8
to

award

application of Section

recovery

summary judgment

had authority to

on

in

from the primary
even

Bradley,

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fees issue

that,

SCRA claim has

3.

and

prevailed

277-78.

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note

permitting

the

this Court

plaintiff

511

plaintiff's
of

against

enacted,

the

Landqraf,

finds that the attorney's

"collateral" and "uniquely separable"

action

was

the Court

as

a

of the SCRA,
fees

action

by

is

a

not

Court

will

to

defendant's

the

grant

incurred by the plaintiff

enactment of

Section

802(b)

2010.

B Because the Court finds no impermissible retroactive effect,
it

does

Gordon,

not
637

reach

the

F.3d at

461

third

step

of

n.2.

-

22

-

the

Landgraf

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3.

A Subsequent Motion

The Court
pursuant

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fees.

motion

support

of

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v.

Equifax

2009);
&

motion.

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of Clinical

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126,

136

ordinarily

Va.

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the

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to

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560

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1982)

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Mar.

15,

forum

appeal

found

is

23

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of

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not

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v.

fees

for

lawsuit,

See Virginia

legal

Pittman,

(w[D]istrict

their

557,

impermissibly

this

appellate

(4th

application

attorney's
of

to

54 (d) (2) ;

243-44

that

appeal.

determine

because

-

on

235,

748

Killette

2001)

to

together

Shield of Virginia,

(including

calculation);

(D.S.C.

on

v.

a separate

filed,

Civ.

F.3d

case

and

any

P.

inception

trial

Psychologists

preferable

rendered

at

the

of

R.

Having

this

amount

necessary

Fed.

LLC,

2010).

from

respect

evidence

Tire Litigation,

SCRA

reasonable

such time as

documentary

generally

provided

(E.D.

attorney's

at

to

Servs.,

rendered

Acad.

services

of

services

34085609,

Info.

having prevailed

no determination with

the plaintiff's motion may address

services

including

See

Necessary

an award of

reserved until

other

Is

award.

attorney's

(E.D.

802 (b)

retroactive,

in

such an

re Outsidewall

nn.24-26

entitled to

respect

of

Section

legal

with

affidavits

Robinson

565-66

of

Fees

the plaintiff,

has made

fee award must be

for

any

is

The Court

decision

attorney's

Cir.

802 (a),

specific amount

Any

with

determined that

to Section

attorney's
to

has

for Attorney's

543

F.

services
2001 WL

courts

attorney's

fees

superior

access

are
for
to

fact-finding

procedures.")

Operating Eng'rs,

Local

(quoting

18,

719

IV.

For the
1.

is

foregoing

DENIED

with

2.

The Clerk is

respect

complaint,

to

the

which

determination as
jury

the

to
to

the
an

the

Union

of

1983)).

for

fee

issue

fee

award

judgment

liability

common-law

reserved

under

case.

(ECF No.
issue

in

the

of

this

68)
the

case.

for the plaintiff

of

the

conversion.

A

shall be reserved

for

claim

if any,

105)

of

award in this

summary judgment

attorney's

to monetary damages,

following:
(ECF No.

reserved

previously

defendant's
a

{6th Cir.

ORDERS

previously

DIRECTED to enter

asserts

Int'1

for summary judgment

to an attorney's

respect

entitlement

880

the Court

plaintiff's motion

with

plaintiff's
3.

to

entitlement

The

GRANTED

with

reasons,

respect

879,

v.

CONCLUSION

The defendant's motion

plaintiff's

is

F.2d

Shimman

Count

for

III

trial.

4.

The Clerk is

DIRECTED to enter

with

respect

fees

incurred by the plaintiff

complaint.

to the defendant's

fee

such

separate

time

pursuant

as

to

a

Fed.

R.

award

Civ.

to

the

motion

P.

attorney's

in connection with Count

IV of the

respect

to the

plaintiff
for

-

specific amount
be

fees

together with

or other documentary evidence necessary to

24

shall

attorney's

54(d)(2),

-

for the plaintiff

liability for reasonable

A determination with

any attorney's

judgment

support

of

reserved until
has

been

filed

any affidavits

the motion.

IT

IS

SO ORDERED.

UNITED STATES^ MAGISTRATE JUDGE
Norfolk,

Virginia

March \*^ , 2012

-

25

-