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Inc. v. a Mover Inc.

United States District Court, E.D. Virginia, Norfolk Division

April 7, 2015

A MOVER INC. (formerly TWO MEN & A TRUCK, INC.), Defendant

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          For 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.

         For A Mover, Inc., formerly known as Two Men & A Truck, Inc., Defendant: James Thompson Lang, LEAD ATTORNEY, Pender & Coward PC, Virginia Beach, VA.

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         Raymond A. Jackson, United States District Judge.

         Before 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.


         Plaintiff 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.

         On 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,,, 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.

         On 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 retain jurisdiction

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over the matter to enforce a violation of the Consent Judgment's terms. ECF No. 9.

         On May 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.


         As a 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 plaintiff." Id.

(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

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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.

         The 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).

         The " 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 175.

         Aside 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. 1994).

         Counsel " 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. SeeIn re Outsidewall Tire Litig., Civil Action No. 1:09cvl217, 52 F.Supp.3d 777, 2014 WL 4925782, *8 (E.D. Va. Sept. ...

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