United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff, Integrated Direct Marketing,
LLC's Motion for Attorneys' Fees and Expert Costs
with Respect to its Motion for Sanctions, in which Integrated
Direct Marketing, LLC ("plaintiff or "IDM")
seeks $98, 494.25, consisting of $63, 142.50 in
attorneys' fees for "preparing, prosecuting, and
arguing its Motion for Sanctions against Defendant Drew
May" ("defendant" or "May") and $35,
351.75 for costs incurred for its forensic computer expert
and for additional forensic computer vendors. PL, Integrated
Direct Marketing, LLC's Mot. for Att'y's Fees
& Expert Costs With Respect to its Mot. for Sanctions
[Dkt. No. 300] 1, Sept. 22, 2015 ("Mot. for Fees").
May opposes these requests, arguing that the fees and costs
requested are excessive and unjustified. Def. Drew May's
Mem. in Opp'n to Integrated Direct Marketing, LLC's
Mot. for Att'y's Fees & Expert Costs With Respect
to its Mot. for Sanctions [Dkt. No. 303] 1, Sept. 29, 2015
("Def.'s Opp'n"). For the reasons that
follow, plaintiffs motion will be granted in part and denied
in part, and plaintiff will be awarded $41, 740.22,
consisting of attorneys' fees in the amount of $17,
242.50 and expert costs in the amount of $24, 497.72.
civil action arises out of IDM's allegations that May, a
former IDM employee, misappropriated IDM's confidential
and proprietary information as well as its trade secrets and
then used that information to benefit himself and his new
employer Merkle, Inc. ("Merkle"). Mem. Op. [Dkt.
No. 295] 2, Sept. 8, 2015. Both IDM and Merkle work in the
highly competitive data-driven marketing industry to provide
data-integrated customer relationship management services, hi
at 5. May worked for IDM from January 2012 until March 2014,
when he was fired and left the company on acrimonious terms.
Id. at 6. In May 2014, May began working for Merkle.
September 8, 2014, IDM sued May and Merkle, alleging in part
that May wrongfully took IDM's confidential and
proprietary information when he copied hundreds of electronic
files to his personal external hard drive. Am. Compl. [Dkt.
No. 57] ¶¶| 18-28, 76-81, Sept. 8, 2014. The day
after filing its initial Complaint, IDM moved for a Temporary
Restraining Order and Preliminary Injunction barring May from
disclosing any of IDM's proprietary and confidential
information and requiring that May immediately return any
documents or files containing such information. Pl.'s
Mot. for TRO & Prelim. Inj. [Dkt. No. 6] 1, Sept. 9,
2014. Attached to May's response to that motion was his
affidavit signed under penalty of perjury, in which he
averred that he "did not keep any of IDM's
information" after being fired, a statement that was
later shown to be false. Opp'n to Request for TRO &
Prelim. Inj., Ex. 1, AIT. of Drew May [Dkt. No. 13-1] ¶
9, Sept. 17, 2014 C'May Aff."). The motion for
injunctive relief was ultimately denied. Order [Dkt. No. 21],
Sept. 19, 2014.
unfortunate animosity between the parties resulted in
numerous discovery-related disputes. Among the issues raised
during discovery were IDM's allegations that May and
Merkle had improperly failed to produce certain documents,
that Merkle had improperly instructed May not to answer
certain questions at his deposition, and that May had
submitted an affidavit containing several false statements.
See PL, Integrated Direct Marketing, L.L.C.'s
Mot. for Sanctions for Defs.' Failure to Produce
Documents, Submission of a False Affidavit, and Refusal to
Answer Questions at Dep. [Dkt. No. 241] 1, .I Line 8, 2015
("Mot. for Sanctions"). The Court directed IDM to
file a motion for sanctions addressing these allegations.
Mots. Hr'g Tr. [Dkt. No. 236] 19-25-20:5, June 5, 2015;
see also Order [Dkt. No. 238] 2, June 5, 2015.
Plaintiff filed a timely Motion for Sanctions and a
supporting memorandum that, among various other issues,
identified four false statements that May had allegedly made
in his affidavit, the most grievous of which was his
statement that he "did not keep any of IDM's
information." PI. Integrated Direct Marketing,
L.L.C.'s Mem. in Supp. of its Mot. for Sanctions for
Defs.' Failure to Produce Documents, Submission of a
False Affidavit and Refusal to Answer Questions at Dep. [Dkt.
No. 242] 1-2, June 8, 2015 ("Mot. for Sanctions
oral argument on plaintiffs Motion for Sanctions, May
testified after being placed under an affirmation to tell the
truth. Mots. Hr'g Tr. [Dkt. No. 270] 21:1, June 29, 2015
("Sanctions Hr'g Tr."). After hearing May's
testimony and having considered evidence from IDM's
forensic computer expert regarding May's
suspiciously-timed deletions of IDM files, see Mem. Op. 59,
the Court concluded that May's statement that he had not
kept any of IDM's information was "just not
accurate" and that his affidavit therefore contained
"a false statement, " Sanctions Hr'g Tr.
39:15-18; however, to incentivize the parties to settle their
dispute, the Court withheld its ruling on the Motion for
Sanctions. Instead of resolving their dispute, the parties
continued the litigation, which proceeded to the summary
hearing oral argument on the parties' motions for summary
judgment, the Court granted Merkle's Motion for Summary
Judgment in total, granted May's Motion for Summary
Judgment in part, and granted IDM's Motion for Sanctions
only with respect to "May's submission of [the]
false statement" that he "did not keep any of
IDM's information." See Mem. Op. 59-60
(internal quotation marks omitted); Order [Dkt. No. 296],
Sept. 8, 2015 ("Summ. J. Order"). Specifically, the
Court found that not only was May's false statement
sanctionable, but that his "lack of candor regarding his
retention of IDM files, coupled with his inflammatory text
messages regarding stealing IDM's clients and employees,
poisoned the well for settlement purposes and caused
unnecessary additional litigation, including necessitating
IDM filing both its Spoliation Motion and Motion for
Sanctions." Id. (footnote omitted). For these
reasons, the Court ruled that IDM would "be awarded the
costs associated with hiring its forensic computer expert, as
well as its reasonable attorneys' fees and costs in
preparing and prosecuting its Motion for Sanctions." Ia\
at 60. IDM was directed to file "a motion and supporting
documentation for its reasonable attorneys' fees and
expenses incurred in preparing and arguing its Motion for
Sanctions and for its forensic computer expert." Summ.
Motion for Attorneys' Fees and Expert Costs seeks $63,
142.50 in attorneys' fees and $3 5, 351.75 for costs
associated with forensic computer services. Mot. for Fees 1.
This request is based on 166.8 hours of work performed by
four attorneys, in addition to the costs incurred by
IDM's forensic computer expert and two other forensic
computer vendors. Pi., Integrated Direct Marketing, LLC's
Mem. in Supp. of its Mot. for Att'y's Fees &
Expert Costs with Respect to its Mot. for Sanctions [Dkt. No.
301] 5, 9-10, Sept. 22, 2015 ("PL's Br."). May
opposes the amount sought, arguing that IDM failed to carry
its burden of demonstrating the reasonableness of the fees
sought and that it seeks reimbursement for forensic computer
work that was unrelated to the false statement for which
sanctions were awarded. Def.'s Opp'n 1.
Standard of Review
calculate an appropriate attorneys' fee award, "a
court must first determine a lodestar figure by multiplying
the number of reasonable hours expended times a reasonable
rate." Robinson v. Equifax Info. Services. LLC,
560 F.3d 235, 243 (4th Cir. 2009) (citing Grissom v. The
Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)). A
"fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hourly rates." Henslev v.
Eckerhart, 461 U.S. 424, 437 (1983). To demonstrate the
reasonableness of the hourly rates, the 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."
Robinson. 560 F.3d at 244 (quoting Plvler v.
Evatt, 902 F.2d 273, 277 (4th Cir. 1990)) (emphasis
omitted). "The applicant should [also] exercise
'billing judgment' with respect to hours worked, and
should maintain billing time records in a manner that will
enable a reviewing court to identify distinct claims."
Henslev. 461 U.S. at 437 (internal citations
omitted). "Where the documentation of hours is
inadequate, the district court may reduce the award
accordingly." Id. at 433.
evaluating "what constitutes a 'reasonable'
number of hours and rate" for the work performed,
"a district court's discretion should be guided by
the following twelve factors:"
(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.
Robinson. 560 F.3d at 243-44 (quoting Barber v.
KimbreH's Inc.. 577 F.2d 216, 226 n.28 (4th Cir.
1978)). Some of these "factors may not have much, if
anything, to add in a given case, " but those "that
do apply should be considered." In re Abrams &
Abrams, P.A., 605 F.3d 238, 244 (4th Cir.
determining the lodestar figure, the 'court then should
subtract fees for hours spent on unsuccessful claims
unrelated to successful ones.'" Robinson,
560 F.3d at 244 (quoting Grissom, 549 F.3d at 321)
(internal quotation marks omitted). After subtracting those
fees, the court "then awards some percentage of the
remaining amount, depending on the degree of success enjoyed