United States District Court, E.D. Virginia, Norfolk Division
April 7, 2015
TWO MEN AND A TRUCK/INTERNATIONAL, INC., Plaintiff,
A MOVER INC. (formerly TWO MEN & A TRUCK, INC.), Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Two Men and a Truck/International, Inc., Plaintiff: John
David Mayberry, LEAD ATTORNEY, Kilpatrick Townsend & Stockton
LLP, Washington, DC; James White Faris, Jr., PRO HAC VICE,
Kilpatrick Townsend & Stockton LLP (GA-NA), Atlanta, GA.
Mover, Inc., formerly known as Two Men & A Truck, Inc.,
Defendant: James Thompson Lang, LEAD ATTORNEY, Pender &
Coward PC, Virginia Beach, VA.
OPINION & ORDER
A. Jackson, United States District Judge.
the Court is Plaintiff's Motion for Award of
Attorneys' Fees and Costs. Plaintiff's motion for
attorneys' fees is GRANTED-IN-PART and DENIED-IN-PART.
The Court grants in part Plaintiff's motion and awards
attorneys' fees and costs in the amount of $24,804.92
($24,310.00 in attorneys' fees and $494.92 in costs). The
Court denies in part Plaintiff's motion for
attorneys' fees to the extent such motion requests
attorneys' fees or costs beyond $24,804.92.
FACTUAL AND PROCEDURAL HISTORY
owns the registered trademark " TWO MEN AND A
TRUCK" as well as several federal trademark
registrations for its " TWO MEN AND A TRUCK" mark,
including U.S. Registration No. 4,340,844. On February 1,
2013, Plaintiff and Defendant's predecessor, Two Men & A
Truck, Inc., a competing moving business, entered into an
Asset Purchase Agreement (" APA" ) whereby
Plaintiff purchased the trademark " TWO MEN & A
TRUCK" from Defendant. Pursuant to the APA, Defendant
agreed to permanently discontinue use of the designation
" TWO MEN & A TRUCK" in any print or Internet
advertising, and ensuring there is no residual use of "
TWO MEN & A TRUCK" in those publications.
February 18, 2014, Plaintiff filed a lawsuit against
Defendant for trademark infringement, false designation or
origin, and unfair competition, and for breach of the APA as
a result of Defendant's unauthorized use of the name and
mark " TWO MEN & A TRUCK" in connection with the
operation of its business. Plaintiff's complaint alleged
that Defendant continued to refer to itself as " TWO MEN
& A TRUCK" on various Internet directories and review
websites such as Angie's List, SuperPages.com, YP.com,
and Yelp. Pl.'s Compl. ¶ 19; ECF No. 1. With respect
to Yelp, the complaint specifically alleged that
Defendant's continued use of the mark associates
Defendant's negative reviews, which include statements
that Defendant is " a scam," has " terrible
customer service," and shows a " complete lack of
professionalism," with Plaintiff, thereby causing harm
to Plaintiff's business, reputation, and goodwill.
Pl.'s Compl. ¶ 24.
March 31, 2014, Defendant's counsel filed a Notice of
Settlement, together with the parties' fully endorsed
Final Judgment and Permanent Injunction on Consent. ECF No.
8. Mr. R. David Moore, listed on the order as Defendant's
President and Secretary, signed the order on behalf of
Defendant on March 31, 2014. On April 3, 2014, the Honorable
Leonie M. Brinkema entered the Final Judgment and Permanent
Injunction on Consent Order (" April 3, 2014 Order"
) and stated that the Norfolk Division of the Court shall
over the matter to enforce a violation of the Consent
Judgment's terms. ECF No. 9.
15, 2014, Plaintiff filed a Motion to Compel Defendant to
Show Cause in response to Defendant's failure to comply
with the April 3, 2014 Order. ECF No. 11. On September 5,
2014, this Court ordered Defendant to show cause why it
should not be held in contempt of this Court's April 3,
2014 Order. ECF No. 17. On October 2, 2014, the show cause
hearing was held and Defendant was found in civil contempt.
Defendant was assessed a coercive sanction of $350.00 for
every day it failed to comply with the Court's April 3,
2014 Order. Defendant was also ordered to pay Plaintiff's
attorneys' fees and costs associated with bringing the
show cause action. October 14, 2014 Mem. Op. & Order; ECF No.
27. On October 14, 2014, a status hearing was held at which
it was determined that Defendant had purged the contempt as
of October 6, 2014. Defendant was ordered to pay $1,400.00.
On October 16, Defendant submitted its payment to the Clerk
of this Court. On October 24, 2014, Plaintiff filed the
instant motion and accompanying memorandum for attorneys'
fees and costs detailing billing for Mr. J. David Mayberry
(partner), Mr. James W. Faris, Jr. (associate), and Ms.
Shelia Blackston (paralegal). ECF Nos. 29 & 30. On November
7, 2014, Defendant filed its Memorandum in Opposition. ECF
No. 31. Plaintiff did not file a reply.
general matter, " [h]ours that are not properly billed
to one's client also are not properly billed to
one's adversary." Hensley v.
Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d
40 (1983). The " 'reasonableness' of a rate is a
concept that does not vary depending on whether the hourly
rate (or the fee for that matter) is assessed for
compensatory purposes or for punitive purposes."
SunTrust Mortg., Inc. v. AIG United Guar.
Corp., 933 F.Supp.2d 762, 768 (E.D. Va. 2013). Thus,
irrespective of whether it stems from a fee-shifting statute
or a sanction, the touchstone of any award of attorneys'
fees and expenses is reasonableness. Id. at 769
(quoting E.I. DuPont de Nemours and Co. v. Kolon Indus.,
Inc., Civil Action No. 3:09cv058, 2013 WL 458532, *2
(E.D. Va. Feb. 6, 2013). The United States Court of Appeals
for the Fourth Circuit (" Fourth Circuit" ) has
clearly set forth the method a court should use in
determining a reasonable attorneys' fee award. In
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013),
as amended (Jan. 23, 2014), it explained:
The proper calculation of an attorney's fee award
involves a three-step process. First, the court must "
determine the lodestar figure by multiplying the number of
reasonable hours expended times a reasonable rate."
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
243 (4th Cir. 2009). To ascertain what is reasonable in terms
of hours expended and the rate charged, the court is bound to
apply the factors set forth in Johnson v. Georgia Highway
Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Id. at 243-44. Next, the court must " subtract
fees for hours spent on unsuccessful claims unrelated to
successful ones." Id. at 244. Finally, the
court should award " some percentage of the remaining
amount, depending on the degree of success enjoyed by the
(Footnote omitted). The Johnson factors used to
determine the initial lodestar figure include: (1) The time
and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform
the legal services rendered; (4) the attorney's
opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney's
expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the
experience, reputation, and ability of the attorney; (10) the
undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and
(12) attorneys' fees awards in similar cases.
Id. at 88 n.5.
Supreme Court of the United States (" Supreme
Court" ) has stated that there is a " strong
presumption" that the lodestar figure represents a
reasonable attorneys' fee, which may be overcome only
" in those rare circumstances in which the lodestar does
not adequately take into account a factor that may properly
be considered in determining a reasonable fee."
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
553-54, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010).
" prevailing market rates in the relevant
community" will determine whether the proposed hourly
rate is reasonable. Rum Creek Coal Sales, Inc., 31
F.3d 169, 175 (4th Cir. 1994). This rule applies unless the
fee applicant demonstrates that the case at hand was
sufficiently complex or specialized such that the required
services were not available in the visited market.
SunTrust, 933 F.Supp.2d at 771. Thus, in the
majority of cases, the relevant market for determining the
prevailing rate is the community in which the court where the
action is prosecuted sits. Rum Creek, 31 F.3d at
from " the attorney's own affidavits, the fee
applicant must produce satisfactory specific evidence of the
'prevailing market rates in the relevant community'
for the type of work for which he seeks an award."
Grissom v. The Mills Corp., 549 F.3d 313, 323 (4th
Cir. 2008) (quoting Plyler v. Evatt, 902 F.2d 273,
277 (4th Cir. 1990)). Affidavits from local attorneys
attesting to the reasonableness of hourly rates will meet
this requirement. Robinson v. Equifax Info. Servs,
LLC, 560 F.3d 235, 245 (4th Cir. 2009). " In
addition to considering materials submitted by the parties,
the court may, on its own, review the billing statement for
reasonableness." Superior Form Builders v. Dan Chase
Taxidermy Supply, 881 F.Supp. 1021, 1026 (E.D. Va.
" should exercise 'billing judgment' with
respect to hours worked." Hensley, 461 U.S. at
437. Plaintiff, as the fee applicant, bears the burden of
demonstrating the reasonableness of its fee request,
Kenney v. A Touch of Patience Shared Hous., Inc.,
119 F.Supp.2d 514, 516, 525 (E.D. Va. 2011), and of "
providing sufficient detail in their records to explain and
support their requests for fees and costs." Andrade
v. Aerotek, Inc., 852 F.Supp.2d 637, 645 (D. Md. 2012).
Indeed, " the party who seeks payment must keep records
in sufficient detail that a neutral judge can make a fair
evaluation of the time expended, the nature and need for the
service, and the reasonable fees to be allowed."
Hensley, 461 U.S. at 441 (1983) (Burger, C.J.,
concurring). " Where the documentation of hours is
inadequate, the district court may reduce the award
accordingly." Id. at 433.
Proper documentation is the key to ascertaining the number of
hours reasonably spent on legal tasks." EEOC v.
Nutri/System Inc., 685 F.Supp. 568, 573 (E.D. Va. 1988).
Thus, inadequate documentation, which may take the form of
vague task entries or block billing, impedes a court's
reasonableness review. See In re Outsidewall
Tire Litig., Civil Action No. 1:09cvl217, 52 F.Supp.3d
777, 2014 WL 4925782, *8 (E.D. Va. Sept. 29,2014). Blocking
billing is " the practice of grouping, or
'lumping,' several tasks together
under a single entry, without specifying the amount of time
spent on each particular task." Project Vote/Voting
for Am., Inc. v. Long, 887 F.Supp.2d 704, 716 (E.D. Va.
2012) (quoting Guidry v. Clare, 442 F.Supp.2d 282,
294 (E.D.Va.2006)). Though not prohibited, id.,
block billing is disfavored in this district. Courts have
reduced fee claims by 10% to 20% in order to address the
deficiencies created by lumping. See In re
Outsidewall Tire Litig., 52 F.Supp.3d 777, 2014 WL
Fourth Circuit reviews a district court's award of
attorney's fees for abuse of discretion.
Grissom, 549 F.3d at 320. Appellate " review of
the district court's award is sharply circumscribed; [the
Fourth Circuit]... recognize[s] that because a district court
has close and intimate knowledge of the efforts expended and
the value of the services rendered, the fee award must not be
overturned unless it is clearly wrong." Id.
(quoting Plyler, 902 F.2d at 277-78).
first step in calculating the attorneys' fees is to
determine the lodestar by multiplying the reasonable hourly
rate by the reasonable number of hours. In sum, Plaintiff
submits that the total fees expended are $32,510.50 for 79.7
hours. This represents an average hourly rate of just over
$470.00, a composite of the rates charged by each attorney
and paralegal: $260.00 per hour for one paralegal, $725.00
per hour for one partner in the law firm, and $425.00 per
hour for one associate. In determining the lodestar, the
Court will consider the first, second, third, fifth, sixth
and ninth Johnson factors: " the time and labor
expended," " the novelty and difficulty of the
questions raised; " the skill required to properly
perform the legal services rendered," " the
customary fees for like work," " the attorney's
expectations at the outset of the litigation," and
" the experience, reputation, and ability of the
ultimately bears the burden of demonstrating that the
requested rates are reasonable. Defendant raises two objects
related to the reasonableness of the rate. First, the Court
should apply the hourly rate in Hampton Roads. Def.'s Br.
in Opp. 1. Second, the services of one, not two, attorneys
were reasonably necessary for the two hearings. Def.'s
Br. in Opp. 2.
support of its burden to establish the prevailing market rate
of attorneys' fees in the relevant community where the
district court sits (i.e., the Eastern District of Virginia),
Plaintiff initially submitted: (1) the affidavit of its lead
counsel and billing records for lead counsel, one junior
attorney, and one paralegal; and (2) a copy of a schedule of
prevailing hourly rates for intellectual property counsel in
metropolitan cities across the country, including the
Washington, D.C. area, complied by the American Intellectual
Property Law Association (" AIPLA" ) and found in
its 2013 Report of the Economic Survey.
disputing Plaintiffs request, Defendant's counsel stated
that highly qualified counsel was available locally and
submitted his own affidavit attesting to the billing rates in
the Hampton Roads legal market for large-firm intellectual
property attorneys with experience commensurate with
review of Plaintiff's request, the Court agreed that this
case was sufficiently routine such that the required services
were available in the local market. Therefore, the AIPLA
report was insufficient to carry Plaintiff's burden of
proof. Plaintiff had provided no evidence that the report,
which pertains to hourly rates of litigation attorneys in
major metropolitan cities such as Washington, D.C, is a
reliable indicator of the hourly rates of intellectual
property litigation attorneys in Norfolk, Virginia, or the
larger Hampton Roads community.
although Plaintiff detailed the backgrounds and experience of
the attorneys and their qualifications in intellectual
property law, the affidavit of Plaintiff's lead counsel
is insufficient to establish that the rates sought are
commensurate with the prevailing market rates of attorneys in
the Hampton Roads legal community, of similar skill and for
similar experience, handling intellectual property litigation
matters before this Court. Similarly, the affidavit of
Defendant's lead counsel was unhelpful to the Court.
Therefore, the Court directed the Parties to file
declarations from detached, neutral counsel with similar
qualifications to Plaintiff's counsel attesting to the
prevailing rates charged in similar cases in the Hampton
Roads area. ECF No. 32. Subsequently, Plaintiff filed a
declaration from Mr. Craig L. Mytelka, a partner in the
Virginia Beach office of Williams Mullen. ECF No. 34, Ex. 1.
Mr. Mytelka stated the following prevailing rates: attorneys
with more than 25 years of experience ($500 to $800 an hour);
attorneys with five years of experience ($325 to $450 an
hour); and paralegals with more than 25 years of experience
($200 to $300 an hour). Defendant filed declarations from
Duncan Glover Byers and Brett A. Spain. ECF No. 35, Ex. 1 &
2. Defendant's submissions state rates that are largely
inconsistent with one another and therefore, provide little
in the way of guidance. However, at least one submission is
somewhat consistent with the rates Plaintiff submitted:
attorney with 25 years of experience ($550), attorney with
five years of experience ($385), and paralegal with "
significant experience" ($175 per hour).
reviewing the Parties' submissions, the Court finds that
the following hourly rates are reasonable in this case: $600
for Mr. Mayberry, $400 for Mr. Faris, and $250 for Ms.
Number of Hours Expended
argues that the services of one attorney, not two, were
reasonably necessary for attendance at the two hearings.
" If more than one attorney is involved, the possibility
of duplication of effort along with the proper utilization of
time should be scrutinized. The time of two or three lawyers
in a courtroom or conference when one would do, may obviously
be discounted." Johnson, 488 F.2d at 717.
However, the Court does not agree that one attorney would
have been sufficient in this case.
there is no per se rule preventing more than one
attorney from participating in court; indeed, in the
Court's experience, attendance of more than one attorney
is not at all uncommon. Second, Mr. Mayberry served as local
counsel in this case. Local Civil Rule 83.1(D)(1)(b) states
that foreign attorneys " shall be accompanied by a
member of the bar of this Court in all appearances before
this Court." Local Civ. R. 83.1. Moreover, all pleadings
filed with the Court must be signed by local counsel, with
whom the Court can, if it chooses, confer with alone "
in all matters connected with the case." Id.
Although the Court has been known to waive the requirement
for local counsel's presence, it has done so sparingly
and only in cases where it is familiar with foreign counsel
through previous appearances before this Court. Given that
this was Mr. Faris's first time appearing before this
Court, the Court would not have waived the appearance of
local counsel, Mr. Mayberry. Thus, he should be compensated
for either his time or his travel costs in attending.
the " novelty and complexity" of the issues of a
case are presumably reflected in the number of billable
hours, Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct.
1541, 79 L.Ed.2d 891 (1984), " the trial judge should
weigh the hours claimed against his own knowledge,
experience, and expertise of the time required to complete
similar activities." Johnson, 488 F.2d at 717.
Counsel who file show cause motions stemming from alleged
contempt violations are " charged with the knowledge:
(a) that a fee award is a possible sanction; (b) that the fee
applicant must prove the reasonableness of the time component
of a fee application by clear and convincing evidence; (c)
that to do so, the applicant must have accurate time records;
and (d) that block billing (or lumping) often results in a
fee reduction. If a party seeking sanctions disregards that
knowledge, it must accept the consequences."
SunTrust, 933 F.Supp.2d at 778 (footnote omitted).
Determining the reasonable number of hours expended requires
separate consideration for each person billing hours.
Superior Form, 881 F.Supp. at 1025. Taking these
principles into consideration, the Court finds that nearly 80
hours for a routine contempt proceeding, which arose from
Defendant's failure to comply with a consent order and
involved two 10-minute hearings, is excessive. Moreover, the
reasonableness of the number of hours (79.7) expended by
Plaintiff's counsel is not adequately documented due to
excessive use of block billing.
all members of Plaintiffs legal team listed the entirety
of their daily tasks in single compound entries, Mr.
Faris's billing presents the greatest challenge to the
Court's reasonableness review because he completed the
bulk of the work on this case. For example, Mr. Faris's
October 2, 2014 entry for 8.0 hours is described as:
Revise proposed orders in light of Ms. Bazar's
declaration; review background materials and previously-filed
pleadings and other documents in preparation for show cause
hearing; outline arguments and statements for show cause
hearing; confer with Mr. Mayberry regarding arguments for
show cause hearing; confer with Ms. Blackston about
additional edits to proposed orders; confer with accounting
about receipt and clearance of additional check from Mr.
Moore; participate in show cause hearing; along with Mr.
Mayberry meet with Mr. Moore about show cause hearing and
steps for him to purge contempt and comply with April Order;
review e-mails from Mr. Moore to Yelp support; provide
summary report to Ms. Wallace about hearing and discuss next
steps; review Court Order finding contempt; return travel.
entry insufficient. First, many of these tasks such as
discrete conversations that Mr. Faris had with Mr. Mayberry
and Ms. Blackston, respectively, as well as the conversation
he and Mr. Mayberry had with Mr. Moore, could have easily
been detailed separately. Second, the notation " review
Court Order finding contempt" is confusing as the Court
did not issue its written Order until October 14, 2014.
Third, although the decision to compensate an attorney for
travel time is within the discretion of the Court, as a
general matter, travel time should be billed at a
substantially lower than usual rate. Sun Pub. Co., Inc.,
v. Mecklenburg News, Inc., 594 F.Supp. 1512, 1520 (E.D.
Va. 1984). To allow travel time compensation at the same
hourly rate as " in-court or other active time would be
unreasonable." Id. Indeed, the failure to
reduce the hourly rate for
travel time indicates a lack of billing judgment.
See Project Vote, 887 F.Supp.2d at 716.
case, the mere notation of " return travel" does
not allow the Court to decipher the amount of time spent
traveling in that eight-hour block. This failure to properly
itemize and account for travel time appears again in Mr.
Faris's entry for October 14, 2014 where " [t]ravel
for follow-up contempt hearing" is lumped into a
three-hour billing notation for other activities such as:
[R]eview background materials and as-filed documents in
preparation for hearing; prepare outline of
arguments/statements for hearing; confer with Mr. Mayberry in
preparation for hearing; participate in hearing; review and
analyze Order finding A Mover in contempt.
Pl.'s Mem. in Supp., Ex. 4. It would be futile for this
Court to attempt to separate these " block entries into
their constituent tasks and apportion a random amount of
time to each." Abusamhadaneh v. Tyler,
No. 1:11cv939 (JCC/TCB), 2013 WL 193778, *21 (E.D. Va. Jan.
17, 2013). Instead, " the Court will take the lack of
specificity and delineation into account, and it will
exercise the discretion accorded it by the Hensley
Court in enacting a reduction from the total billable hours
of counsel." Id.
addition, this was a straightforward case about securing the
last of three agreed-upon payments and the removal of online
material violating Plaintiffs trademark. Also, the show cause
hearing was a brief, 10-minute routine proceeding that did
not require extensive preparation. Thus, the Court finds that
the notation for " [r]eview background materials and
case file" which appears in block entries lumped in with
other tasks (such as various phone calls) on September 3,
2014 (5.00 hours total), September 25, 2014 (6.50 hours
total), September 29, 2014 (2.20 hours total), September 30,
2014 (5.00 hours total), and October 2, 2014 (8.00 hours
total), is duplicative and reflects a lack of billing
judgment. Therefore in consideration of this and the
aforementioned deficiencies in Mr. Faris's billing, the
Court will reduce Mr. Faris's total billable hours by 10%
or 5.2 hours.
the billing entries for Ms. Blackston, typical paralegal
tasks include " factual investigation, including
locating and interviewing witnesses; assistance with
depositions, interrogatories, and document production;
compilation of statistical and financial data; checking legal
citations; and drafting correspondence." Missouri v.
Jenkins by Agyei, 491 U.S. 274, n.10, 109 S.Ct. 2463,
105 L.Ed.2d 229. However, " purely clerical or
secretarial tasks should not be billed at a paralegal rate,
regardless of who performs them." Id. Indeed,
courts in this circuit have determined that because purely
clerical tasks are ordinarily a part of a law office's
overhead, (which is covered in the hourly rate), they should
not be compensated for at all. See Keesee v.
Astrue, No. 2:08cv00029, 2009 WL 1231006, *1 (W.D. Va.
Apr. 30, 2009) (citing Keith v. Volpe, 644 F.Supp.
1312, 1316 (C.D.Cal.1986)); Abusamhadaneh, 2013 WL
193778 at *38. See also Coates v.
Dougherty, Civ. A. No. 90-1716-A, 1992 WL 220757, *1
(E.D. Va. June 18, 1991) (denying claim for 1.6 hours of
clerical time); Alexander S. By and Through Bowers v.
Boyd, 929 F.Supp. 925, 939 (D.S.C. 1995) (reducing fees
by 75% for secretarial work performed by project assistants).
Examples of clerical work include: collating and filing
documents with the court, issuing summonses, scanning and
mailing documents, reviewing files for information
(Johnson v. Weinstein & Riley, P.S., No.
5:99-cv-377-JG, 2011 WL 1261578, *5 n.4 (E.D.N.C. Mar. 30,
printing pleadings and preparing sets of orders (In re
Boyds Collection Ltd., No. 05-43793 DK, 2006 WL 4671849,
*1 (July 10, 2006)); document organization (Burr v.
Astrue, Civil Action No. 5:06CV35, 2008 WL 4693543, *6
(N.D. W.Va. Oct. 23,2008)); creating notebooks or files and
updating attorneys' calendars (Muhler Co., Inc. v.
Window World of N. Charleston LLC, No. 2:1
l-cv-00851-DCN, 2014 WL 4269078, *9 (D.S.C. Aug. 28,2014));
assembling binders ( Superior Form, 881
F.Supp. at 1027)); emailing documents or logistical telephone
calls with the clerk's office or the judge's chambers
(Gregory v. Belfor USA Group, Inc., No. 2:2CV11,
2014 WL 468923, *6 (E.D. Va. Feb. 4,2014)).
was not a case which required typical paralegal tasks.
See supra 13. Thus, the Court finds that
several of Ms. Blackston's entries amount to clerical or
05/15/2014: Assist with filing Motion to Compel / 0.80
05/21/2014: Review pleadings as filed, update correspondence
and pleadings files. /0.90
05/27/2014: Verify logistics for PHV application form; confer
with Mr. Faris regarding status of filing. / 0.80
09/04/2014: Prepare and file Pro Hac Vice
application for Mr. Faris; confer with court clerk
regarding signature requirements for PHV applications. /1.20
09/05/2014: Prepare updated PHV application for Mr.
09/09/2014: File Amended PHV application for Mr. Faris. /
10/01/2014: Review and file Notice of Additional Evidence re
Motion to Compel; serve Notice of Additional Evidence to Mr.
Moore and A Movers via email and FedEx; download and review
updated Docket Report from PACER; download current pleadings
from PACER; update pleadings files; update Mr. Mayberry's
Pleadings notebook. / 3.10
10/02/2014: Confirm delivery of overnight packages to Mr.
Moore and A. Mover and forward confirmation of same to Mr.
Faris; forward Court Order from Show Cause Hearing to Ms.
Wallace; review team correspondence and update correspondence
files; document/file management. / 3.30
10/10/2014: Download current docket and 10/10/14 filings from
PACER and forward same to Mr. Faris; update pleadings file;
update Mr. Mayberry's pleadings binder; review and update
team correspondence files. / 3.20
10/14/2014: Download and review Order finding A Mover in
Contempt and upload same to DeskSite; forward Order to team
for distribution. / 0.80
to the entry for October 2, 2014, the Court finds that in
addition to clerical work, Ms. Blackstone's entry details
forwarding a document that this Court had not yet filed.
Indeed, as noted above with respect to Mr. Faris's
October 2, 2014, entry, the " Court Order from the Show
Cause Hearing" was not filed until October
14, 2014. Therefore, it could not have been forwarded to the
client on that day. This entry indicates that billing entries
were not made contemporaneously and will be reduced
accordingly. See Nutri/System, 685 F.Supp.
at 573 (documentation submitted should reflect "
reliable contemporaneous recordation of time spent on legal
the Court notes that the repeated entry of " [r]eview
team correspondence and update correspondence files"
might be considered vague, it is not clear that such an entry
is purely clerical. Accordingly, in its discretion, the Court
will not deduct these entries. Where the notation appears
lumped with clerical activities, the clerical activities are
deducted and 0.50 hours are allocated for reviewing and
updating team correspondence files. As a result, the hours
for Ms. Blackston's activities are reduced from 20.8 to
remaining Johnson factors which the Court will consider as
relevant in this case are (7) " the time limitations
imposed by the client or circumstances" and (8) "
the amount in controversy and the results obtained." The
Court finds that there were no special time limitations in
this case, and therefore gives little weight to the seventh
Johnson factor. To avoid giving double the weight to
counsel's success, a key issue that the Fourth Circuit
has directed courts to consider after establishing the
lodestar, the Court will give little weight to the eighth
factor, the amount in controversy and results obtained. The
parties present no information as to the fourth, tenth,
eleventh, and twelfth factors, so the Court accordingly gives
those factors no weight.
the relevant factors weigh in favor of the reducing the
number of hours to 59.5 from 79.7. Applying the applicable
hourly rate to each team member, the Court finds that the
lodestar is $24,310.00.
Reduction for unrelated and unsuccessful claims
were no unsuccessful claims so a reduction on this point is
unnecessary. See McAfee, 738 F.3d at 88.
Degree of success
the Court should consider reducing the fee to account for the
degree of success attained by Plaintiffs counsel. Given
Plaintiffs success in achieving a finding of contempt, a
reduction is not necessary.
Plaintiff's Motion for Attorneys' Fees is
GRANTED-IN-PART and Defendant is ORDERED to pay Plaintiff
$24,310.00 in attorneys' fees.
the Court will turn briefly to the $2,005.70 in costs
Plaintiff's requested. Because the legal services needed
in this case were available in the Norfolk or its surrounding
area, the Court will deduct travel expenses related to Mr.
Faris's travel from Atlanta. The Court is also concerned
that more than two-thirds of the costs requested stem from
Mr. Faris's travel which amounted to $1,510.78. This is
unreasonable. This was a ten-minute hearing which Mr.
Mayberry was fully capable of handling alone without
incurring airfare, hotel expenses, and car rental fees for an
associate to travel from Atlanta. Indeed, Mr. Faris's
billing entry on September 25, 2014, contains the notation
" confer with Mr. Mayberry about... possibility of
engaging local counsel." Given that this conversation
occurred prior to incurring fees for his travel, it appears
to the Court that Plaintiff's counsel weighed the matter.
In its discretion, however, the Court declines to deduct
travel expenses for Mr. Mayberry as he served as local
counsel admitted to practice before the Court. Therefore,
Plaintiff's Motion for
Costs is GRANTED-IN-PART and DENIED-IN-PART and Defendant is
ORDERED to pay Plaintiff $494.92 in costs.
reasons stated above, Plaintiff's Motion for Award of
Attorneys' Fees and Costs is GRANTED-IN-PART and
DENIED-IN-PART. Defendant is ORDERED to pay Plaintiff
$24,310.00 in attorneys' fees and $494.92 in costs.
Court DIRECTS the Clerk to send a copy of this Order to all
Mr. Mayberry's work is sufficiently
documented and requires no analysis by the Court.
A Pro Hac Vice (" PHV" )
application is a form document that requires no specialized
legal training to complete.
The Court also notes that including the
preparation and filing of an amended PHV illustrates a lack
of billing judgment as it appears the amended form was needed
as a result of an error in completing the first form, despite
conferring with the clerk's office on the signature
requirements prior to submission. Just as the client should
not be billed for an error by counsel's team in
completing a routine form document, neither should Defendant
be charged with that error.