Nationwide Property and Casualty Insurance Company et al v. Jacobsen
Filing
90
MEMORANDUM OPINION and ORDER - Plaintiffs to pay defendants' reasonable fees and expenses incurred as set forth in the order. Signed by District Judge David A. Faber on 11/18/15. (sas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
AT ROANOKE
NATIONWIDE PROPERTY &
CASUALTY INSURANCE CO.
and
NATIONWIDE MUTUAL
INSURANCE CO.,
Plaintiffs/Counterclaim Defendants,
v.
Civil Action No: 7:14-00516
KELLEE NICHOLE JACOBSEN
and
CRAIG JACOBSEN,
Defendants/Counterclaim Plaintiffs.
MEMORANDUM OPINION AND ORDER
Pending before the court is the issue of an award of
attorneys’ fees for defendants’ motion to compel and
corresponding supplemental motion to compel, defendants’ renewed
motion to compel, and defendants’ second motion to compel.
In
its October 16, 2015 Order, the court found that an award of
attorneys’ fees was justified for defendants’ motion to compel
and supplement and defendants’ renewed motion to compel.
No. 74 at 4).
(Doc.
The court further ordered plaintiffs to submit a
brief to the court on or before October 23, 2015, explaining why
an award of attorneys’ fees was not justified for defendants’
second motion to compel.
Id.
Plaintiffs did not file such a
brief on or before the deadline and, to date, have filed nothing
at all in response to the court’s order.
The court has offered
plaintiffs an opportunity to respond, pursuant to Federal Rule
of Civil Procedure 37(a)(5)(A), and plaintiffs have chosen not
to do so.1
Furthermore, plaintiffs have failed to follow the court’s
directive ordering them to file a proper privilege log on or
before October 23, 2015.
(Doc. No. 74 at 4).
As described in
the court’s October 16, 2015 order, defendants did not file
their motions before attempting in good faith to obtain the
necessary disclosures and plaintiffs’ failure to disclose was
not substantially justified.
Therefore, for these reasons as
well as reasons cited in the court’s October 16, 2015 order,
(Doc. No. 74), the court finds there are no circumstances that
make unjust an award of reasonable expenses for defendants’
second motion to compel.
I.
Analysis
An award of attorney’s fees must be reasonable.
See Sky
Cable, LLC et al. v. Coley et al., Civil Action No. 5:11cv00048,
1
The court further notes that defendants submitted a copy of
their statement of fees pursuing three discovery motions to both
the court and plaintiffs. Plaintiffs have not responded to the
statement of fees, challenged its accuracy, challenged the
hourly rates calculated in the statement, or disputed the
description of services detailed in the statement.
2
2014 WL 4407130, at *2 (W.D. Va. Sept. 18, 2014) (citing McAfee
v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23,
2014)).
The Fourth Circuit has outlined a three-step process to
determine a reasonable attorneys' fee award.
Id.
Initially,
the court determines the lodestar figure, which is calculated by
multiplying the reasonable number of hours expended by the
reasonable hourly rate.
Id.
Courts evaluate the reasonableness
of the hours expended and rates sought under the lodestar method
using the twelve factors2 identified in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717–19 (5th. Cir. 1974), as
adopted by Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28
(4th Cir. 1978).
See Robinson v. Equifax Info. Servs., 560 F.3d
235, 24344 (4th Cir. 2009).
Second, the court subtracts fees
for hours spent on unsuccessful claims unrelated to successful
claims.
McAfee, 738 F.3d at 88.
Finally, the court awards a
percentage of the remaining amount to the prevailing party,
2
The twelve Johnson factors include: (1) the time and labor
required in the case; (2) the novelty and difficulty of the
questions presented; (3) the skill required to perform the
necessary legal services; (4) the preclusion of employment by
the lawyer due to the acceptance of the case; (5) the customary
fee for similar work; (6) the contingency of a fee; (7) the time
pressures of the case; (8) the award involved and the results
obtained; (9) the experience, reputation, and ability of the
lawyer[s]; (10) the “undesirability” of the case, (11) the
nature and length of the professional relationship between the
lawyer and the client; and (12) the fee awards made in similar
cases. In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir.
2010).
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depending on the degree of success of prevailing party’s claims.
Id.
A court’s calculation of a lodestar figure enjoys a strong
presumption of accuracy.
McAfee, 738 F.3d at 88–89.
Only “in
those rare circumstances where the lodestar does not adequately
take into account a factor that may properly be considered in
determining a reasonable fee” is this presumption overcome.
Id.
at 89 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552
(2010)).
Having reviewed defendants’ submitted statement of fees,
the court finds that the hourly rates sought are reasonable.
The three attorneys in this case seek attorneys’ fees based upon
hourly rates of $210, $250, and $300, respectively.
are consistent with the prevailing market rates.
These rates
The court
bases this conclusion upon consideration of the Johnson factors
as well as judicial experience and knowledge of fees generally
charged by attorneys in the Roanoke area.
Additionally, several
recent cases from the Western District of Virginia have found
higher rates to be reasonable.
See, e.g., Hudson v.
Pittsylvania Cnty., Civil Action No. 4:11-cv-43, 2013 WL
4520023, at *4 (W.D. Va. Aug. 26, 2013) (concluding a $400
hourly rate for a case in Danville, Virginia was unreasonable
and reducing it to $350); Three Rivers Landing of Gulfport, LP
4
et al. v. Three Rivers Landing, LLC, et al., Civil Action No.
7:11-cv-00025, 2014 WL 1599564, at *4 (W.D. Va. Apr. 21, 2014)
(reducing attorneys’ hourly rate from $685 to a blended hourly
rate of $385.94 to $332.29); Sky Cable, LLC et al. v. Coley et
al., Civil Action No. 5:11cv00048, 2014 WL 4407130, at *4 (W.D.
Va. Sept. 18, 2014) (reducing hourly rate for attorneys’ fees
from $340-$540 to a cap of $350).
The court further finds that defendants’ calculation of
hours is reasonable, as well.
Defendants have offered a
comprehensive statement of fees which give a specific and
detailed account of defendants’ efforts to address plaintiffs’
discovery abuses.
Having reviewed the statement of fees, the
court finds that it is reasonable and does not include fees for
activities unrelated to the discovery motions at issue.
Upon
consideration of this and the other Johnson factors, the court
finds that the appropriate lodestar figure in this case is
$29,310.00.
For the second factor in a proper determination of
attorneys’ fees, the court examines the number of hours spent on
unsuccessful claims versus those spent on successful claims and
deducts the hours spent on unsuccessful claims.
In this case,
defendants filed three separate motions to compel and one
supplemental motion to compel.
The court granted all of these
5
motions.
As a result, there are no unsuccessful claims to
deduct from the lodestar calculation.
Finally, the court must determine the appropriate
percentage to award defendants, depending on the degree of
success of their claims.
The court has granted all of
defendants’ discovery motions in their entirety.
the appropriate percentage is 100%.
As a result,
Consequently, the
appropriate amount of reasonable fees and expenses to be awarded
to defendants in this case is $29,310.00.
II.
Conclusion
Accordingly, the court ORDERS plaintiffs to pay defendants’
reasonable fees and expenses incurred in making the above cited
discovery motions in the amount of $29,310.00.
The Clerk is DIRECTED to send copies of this Order to all
counsel of record.
IT IS SO ORDERED this 18th day of November, 2015.
Enter:
David A. Faber
Senior United States District Judge
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