United States District Court, E.D. Virginia, Norfolk Division
[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. SeeIn re Outsidewall
Tire Litig., Civil Action No. 1:09cvl217, 52 F.Supp.3d
777, 2014 WL 4925782, *8 (E.D. Va. Sept. ...