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Sky Cable, LLC v. Coley

United States District Court, W.D. Virginia, Harrisonburg Division

August 15, 2014

SKY CABLE, LLC, et al., Plaintiffs,
RANDY COLEY, et al., Defendants.


ROBERT S. BALLOU, Magistrate Judge.

In this Federal Communications Act ("FCA") civil action, the court granted summary judgment in favor of Cross-Claim and Third-Party Plaintiff DIRECTV, LLC ("DIRECTV") on its FCA claim, pursuant to 47 U.S.C. § 605, and awarded statutory damages of $2, 393, 000.00, plus pre-judgment interest from December 14, 2009. This Report and Recommendation addresses DIRECTV's motion for an award of attorneys' fees and expenses as a prevailing party under the FCA. Specifically, DIRECTV seeks an attorneys' fee award of $428, 944.50, costs of $16, 691.03, for a total award of $445, 635.53. Defendants Randy Coley and East Coast Cablevision, LLC (collectively the "Coley Defendants")[1] oppose the motion for attorneys' fees and expenses on numerous grounds. Having considered the record, the legal arguments and the applicable law, and pursuant to 28 U.S.C. § 636(b)(1)(B), I RECOMMEND that DIRECTV's Motion for Attorneys' Fees be GRANTED, and that DIRECTV be awarded Two Hundred Thirty Six Thousand and Thirteen and 85/100 Dollars ($236, 013.85) in attorneys' fees and expenses.


The facts of this case are fully set forth in the District Court's July 11, 2013 Memorandum Opinion awarding partial summary judgment to DIRECTV. Dkt. No. 203. This case arises out of the receipt and unauthorized distribution of DIRECTV satellite programming to thousands of viewers at Massanutten Resort. DIRECTV asserted five separate claims against the Coley Defendants in its First Amended Cross-Claim and Third-Party Complaint dated August 3, 2012 ("Amended Complaint"). Dkt. No. 127. The Court granted DIRECTV's motions for partial summary judgment against the Coley Defendants on its FCA claim, Dkt. Nos. 203 & 213, and awarded statutory damages against the Coley Defendants in the amount of $2, 393, 000.00, representing 2, 393 violations of 47 U.S.C. § 605(a) for improperly receiving and distributing the DIRECTV satellite programming. Dkt. No. 220. DIRECTV and the Coley Defendants subsequently stipulated to dismissal of the remaining claims, and the Court entered final judgment on January 30, 2014. Dkt. No. 224.

On February 6, 2014, DIRECTV submitted its application for attorneys' fees and costs under the FCA, Federal Rule of Civil Procedure 54(d), and 28 U.S.C. § 1920. Dkt. No. 227. The Coley Defendants filed a Memorandum in Opposition to the application on February 19, 2014, and DIRECTV filed a Reply in Support of its Application on February 26, 2014. Dkt. No. 230 & 231. This matter has been fully briefed and is ripe for decision.

Applicable Law

When a litigant brings a successful FCA claim under 47 U.S.C. § 605(a) or § 605(e)(4), the Court "shall direct the recovery of full costs, including awarding reasonable attorney's fees to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). The parties agree that DIRECTV is the "prevailing party" and is entitled to an award of fees and costs under 47 U.S.C. § 605. The Coley Defendants take issue, however, with various aspects of DIRECTV's fee request, including: (1) the reasonableness of the hourly rates charged by DIRECTV's counsel; (2) the reasonableness of the hours and costs enumerated in DIRECTV's fee petition; (3) DIRECTV's characterization of its litigation success; and (4) specific items of expenses.

DIRECTV has the burden of establishing that its requested amount of attorneys' fees is reasonable. McAfee v. Boczar , 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). The Fourth Circuit follows a three-step process for courts to use in determining a reasonable attorneys' fee award. Id . First, 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 on fee petitions under the lodestar method using the twelve factors 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, 243-44 (4th Cir. 2009).[2] 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 plaintiff, depending on the degree of success of plaintiff's claims. Id.

A strong presumption exists that a properly calculated the lodestar figure is reasonable. Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 554 (2010). That presumption may be overcome only in rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. Id.


The Coley Defendants have asserted several objections to DIRECTV's fee application which the Court will address in turn. The analysis of the objections raised by the Coley Defendants will necessarily address the Johnson factors relevant to this particular fee petition.

1. Hourly Rates

The reasonable hourly rate for purposes of the lodestar figure is generally the prevailing market rate for comparable services in the community in which the services were rendered. In re Mullins, Civ. A. No. 95-178-A, 1996 WL 148527, *3 (W.D. Va. Feb. 12, 1996). The determination of the reasonable hourly rate is a fact intensive exercise requiring the fee applicant to produce "specific evidence" of prevailing market rates in the relevant community for similar services in similar circumstances. Spell v. McDaniel , 824 F.2d 1380, 1402 (4th Cir. 1987). The relevant legal community is generally that in which the district court sits. Rum Creek Coal Sales, Inc. v. Caperton , 31 F.3d 169, 179 (4th Cir. 1994).

The Coley Defendants challenge the hourly rates charged by DIRECTV's attorneys as unreasonable.[3] DIRECTV was represented in this action by two law firms, Yarmuth Wilsdon, PLLC, and Williams Mullen, P.C. Each firm employed a team of partners, associates, and paralegals to work on this case. The hourly rates charged by the professionals at each firm varied, but are generally categorized as follows: partners $340-$540 per hour; associates $295-$310 per hour; paralegals $120-$195 per hour.

Fee applicants in the Fourth Circuit are required to show that the hourly rates submitted are "consistent with the prevailing market rates in the relevant community for the [particular] type of work...." McAfee , 738 F.3d at 91. DIRECTV submitted the affidavit of Richard Matthews in support of the hourly rates charged by Yarmuth Wilsdon and Williams Mullen. The Coley Defendants contend that the hourly rates sought are unreasonably high for the Harrisonburg community, and cite several FCA cases in which the courts awarded lower hourly rates than those submitted in this case.[4]

Recent cases in this Court are illustrative of reasonable hourly rates for highly qualified and experienced attorneys in the Harrisonburg market. In Three Rivers Landing of Gulfport, LP v. Three Rivers Landing, LLC, this Court found that an hourly rate of $685 for an attorney based in Richmond, Virginia was unreasonably high for the Roanoke Valley and Western District of Virginia, and reduced the fee to a $500 hourly rate. 7:11-CV-00025, 2014 WL 1599564, at *3-4 (W.D. Va. April 21, 2014). Likewise, in Allstar Lodging, Inc. v. Rookard, this Court found that $650 an hour for a highly qualified Washington D.C. attorney was an "enormous" hourly rate for Harrisonburg, and reduced the hourly rate to $350. 5:13CV00053, 2013 WL 6002070 at *5 (W.D. Va. Nov. 12, 2103). See also Hudson v. Pittsylvania Cnty., Va., 4:11CV00043, 2013 WL 4520023 (W.D. Va. Aug. 26, 2013) (reducing a $400 hourly rate in a Danville, Virginia case to $350 per hour); Chadwell v. Lee Cnty. Sch. Bd. , 535 F.Supp.2d 586, 603 (W.D. Va. 2008) (reducing hourly rate from $350 to $250 for civil rights case in Big Stone Gap, Virginia); Double K Props., LLC v. Aaron Rents, Inc., 2003 WL 22697218, at *4 (W.D. Va. Nov. 14, 2003) (reducing hourly rate of counsel in commercial lease dispute case in Abingdon, Virginia, from $550 to $210).

Here, I find that DIRECTV's counsel from both Yarmuth Wilsdon and Williams Mullen are highly qualified lawyers with significant experience in the area of law at hand. However, based upon the cases cited above, as well as the Court's knowledge of the fees generally charged by attorneys in the Harrisonburg division, the Court will exercise its discretion to bring the hourly rates in line with reasonable market rates. Accordingly, the Court reduces the hourly rates for billing partners in this matter to a cap of $350 per hour, with corresponding reductions for associates to a rate of $225 per hour, and paralegals and legal assistants to $100 per hour.

2. Block Billing

The Coley Defendants assert that DIRECTV provided insufficient documentation to the Court to accurately determine the reasonableness of the time billed by its counsel. Specifically, the Coley Defendants argue that the fee application is "replete" with block billing or "lumping" multiple tasks into the same billing entry, and thus a reduction of the total fee award is warranted. Courts in this circuit have routinely held that "block billing" does not provide the court with a sufficient breakdown to support an attorneys' fee request. "Inadequate documentation includes the practice of grouping, or lumping, ' several tasks together under a single entry, without specifying the amount of time spent on each particular task." Guidry v. Clare , 442 F.Supp.2d 282, 294 (E.D. Va. 2006); see also Project Vote/Voting for Am., Inc. v. Long , 887 F.Supp.2d 704, 716 (E.D. Va. 2012); McAfee v. Boczar , 906 F.Supp.2d 484, 498 (E.D. Va. 2012) vacated and remanded on other grounds, 738 F.3d 81 (4th Cir. 2013), as amended (Jan. 23, 2014) ("The practice of block billing' has been generally disfavored in federal courts across the country and has often led to a reduction in attorney's fees.") As the Court explained in Project Vote, "[w]hile perhaps block billing' is not prohibited, it simply does not provide the court with the sufficient breakdown to meet [the applicant's] burden to support its fee request in specific instances." 887 F.Supp.2d at 716. "The court's role is not to labor to dissect every individual entry to hypothesize if the different tasks in the same entry could reasonably result in the requested time." Id . at 717. See also Guidry , 442 F.Supp.2d at 294 ("Indeed, fee claimants must submit documentation that reflects reliable contemporaneous recordation of time spent on legal tasks that are described with reasonable particularity, ' sufficient to permit the Court to weigh the hours claimed and exclude hours that were not reasonably expended.'") (citing EEOC v. Nutri/System, Inc. , 685 F.Supp. 568, 573 (E.D. Va. 1988)).

Accordingly, courts have found that "[l]umping and other types of inadequate documentation are thus a proper basis for reducing a fee award because they prevent an accurate determination of the reasonableness of the time expended in a case." Guidry, at 294. Courts reduce the fee award in such circumstances by either identifying specific hours that are not sufficiently documented or by reducing the overall fee award by a fixed percentage based on the trial court's familiarity with the case, its complexity, and the counsel involved. See Project Vote , 887 F.Supp.2d at 716; McAfee , 906 F.Supp.2d at 497-500; Guidry , 442 F.Supp.2d at 294. In Project Vote, the Court noted that counsel's time logs reported the entries with "no breakdown of how the time was spent among often as many as four or five distinct tasks, " and thus, "[i]n light of the inexact documentation and the resulting inability of the court to properly assess the reasonableness of the time requested, " the court applied a fixed percentage reduction of ten percent to the fee award. Id . at 716.

Examining the time sheets provided by DIRECTV's counsel, I find several instances of block billing by attorneys at Yarmuth Wilsdon. For example, entries dated May 24, 2012, June 29, 2012, September 10, 2012, and October 10, 2012, contain blocks of 4.4 to 5.9 hours of time, in which several unrelated tasks are combined. Dkt. No. 227-2. Specifically, on May 24, 2012, attorney Jamnback billed 4.5 hours for "[c]onferences with S. Wilsdon (re: case status, planning) and M. Houck (re: factual research); prepare correspondence to D. Hunt and Jacobs (re: Rule 26(f) conference); telephone conference with J. Green (re: case status, ...

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