United States District Court, E.D. Virginia, Norfolk Division
LISA T. PERRY, Plaintiff,
ISLE OF WIGHT COUNTY, Defendant.
MEMORANDUM OPINION & ORDER
Raymond A. Jackson United States District Judge
the Court is the petition of Lisa T. Perry's
("Plaintiff) Motion for Further Relief. ECF No. 72.
Plaintiff, by counsel, requests further relief in the form of
pre-judgment interest, in addition to Plaintiffs Motion for
Attorneys' Fees and Costs. Id.; ECF No. 70. Both
of these Motions stem from successfully suing the Isle of
Wight County ("Defendant") for failing to reinstate
Plaintiff in violation of the Family Medical Leave Act
("FMLA"). Plaintiff was employed by Defendant and
was not reinstated to her position after her FMLA leave
ended. These matters have been fully briefed and are ripe for
disposition. A hearing will not aid judicial determination.
For the reasons set forth herein, Plaintiffs Motion for
Further Relief is GRANTED in part and
DENIED in part and Plaintiffs Motion for
Attorneys' Fees is GRANTED in part and
DENIED in part.
12, 2015, Defendant removed this action from Isle of Wight
Circuit Court. ECF No. 1. On October 28, 2015, Plaintiff
filed an Amended Complaint alleging that Defendant had
engaged in (1) retaliation in violation of the FMLA and (2)
failure to reinstate in violation of the FMLA. ECF No. 16. On
January 24, 2017, after full briefing by the parties, the
Court granted in part and denied in part Defendant's
Motion for Summary Judgment. ECF No. 48. The Court dismissed
Count I of the Amended Complaint, leaving Count II as the
only remaining claim of the Amended Complaint. Id.
The Court held a bench trial on March 7, 2017. ECF No. 59. On
August 10, 2017, the Court issued its Findings of Fact and
Conclusions of Law, as required by Rule 52(a) of the Federal
Rules of Civil Procedure. ECF No. 68. The Court found
Defendant liable for violating the FMLA and entered judgement
for Plaintiff, in the amount of $747, 320.66. Id.
filed a Motion for Attorneys' Fees on August 24, 2017,
and a Motion for Further Relief on August 28, 2017. ECF Nos.
70-71, 72-73. On September 7, 2017, Defendant filed a
Response to both Motions. ECF Nos. 74, 80. Plaintiff filed a
Reply to the Motion for Attorneys' Fees on September 11,
2017. ECF No. 79. Plaintiff did not file a Reply on the
Motion for Further Relief. On September 7, 2017, Defendant
appealed to the United States Court of Appeals for the Fourth
Circuit ("the Fourth Circuit"), but Defendant filed
a motion to voluntarily dismiss the appeal on January 8,
2018. ECF Nos. 77, 85-86.
requests a total of $136, 646.33 in attorneys' fees and
costs together. ECF No. 70; see also ECF No. 79 at
7. Specifically, Plaintiff requests $129, 929.65 in
attorneys' fees at rates ranging from $200 and $385 per
hour for 431.60 hours of work. ECF No. 70; see also
ECF No. 79 at 4-5. Plaintiff also requests $6, 716.68 in
costs. Id. Lastly, Plaintiff requests a total of $8,
507.00 in pre-judgment interest. ECF Nos. 72-73. Plaintiff
bases the pre-judgment interest award on a United States
Prime Rate ("Prime Rate") of 4.25%, compounded
to the FMLA, pre-judgment interest on FMLA damages is
mandatory rather than discretionary. See 29 U.S.C.
§ 2617(a)(1)(A)(ii) (2008); Dotson v. Pfizer,
Inc., 558 F.3d 284, 302 (4th Cir. 2009). "Under the
FMLA, an employer 'shall be liable' for the
pre-judgment interest on the amount of 'any wages,
salary, employment benefits, or other compensation denied or
lost to [an employee] by reason of the [FMLA]
violation.'" Dotson, 558 F.3d 284 (citing
29 U.S.C. § 2617(a)(1)(A)(i)-(ii)). Pre-judgment
interest also does not constitute the kind of
"additional" relief that requires briefing-unlike
other FMLA remedies like front pay and liquidated damages,
which the district court has the discretion to reduce or deny
outright. Id. at 302. Pre-judgment interest
automatically becomes part of the damages award under the
plain terms of the statute. Id.; see also 29 U.S.C.
§ 2617(a)(1)(A)(i)-(ii). Pre-judgment interest should be
awarded at the prevailing rate. See 29 U.S.C. §
2617(a)(1)(A)(ii). The statute does not define the
"prevailing rate"; and as a result, the district
court has the discretion in determining the rate."
See, e.g., Bell v. Prefix, Inc., 500 Fed.Appx. 473,
474 (6th Cir. 2012). To calculate the prejudgment interest,
"the best starting point is to award interest at the
market rate, which means an average of the prime interest
rate for the years in question." Cememt Div.,
Nat'l Gypsum Co. v. City of Milwaukee, 144 F.3d
1111, 1114 (7th Cir. 1998). The prime interest rate includes
the period of time from date of injury through entry of
the post-judgment statute, post-judgment interest "shall
be allowed on any money judgment in a civil case recovered in
a district court. . . ." 28 U.S.C. § 1961 (2000).
Section 1961 further provides that "[s]uch interest
shall be calculated from the date of the entry of the
judgment, at a rate equal to the weekly average 1-year
constant maturity Treasury yield, as published by the Board
of Governors of the Federal Reserve System, for the calendar
week preceding the date of the judgment." Id.
The Supreme Court has stated that "[t]he purpose of
post-judgment interest is to compensate the successful
plaintiff for being deprived of compensation for the loss
from the time between the ascertainment of the damage and the
payment by the defendant." Kaiser Aluminum &
Chem. Corp. v. Bonjorno, 494 U.S. 827, 835-36 (1990)
(internal quotations and citation omitted).
Federal Circuit defers to the relevant circuit for
interpretation of the post-judgment statute. Transmatic
Inc. v. Gulton Indus. Inc., 180 F.3d 1343, 1347-48 (Fed.
Cir. 1999). Accordingly, the Fourth Circuit has stated that
"awarding post-judgment interest on the entire [damages]
amount. . . including pre-judgment interest, most closely
comports with the purpose of post-judgment interest
articulated by the Supreme Court." Quesinberry v.
Life Ins. Co. of N. Am., 987 F.2d 1017, 1031 (4th Cir.
1993) (citing Bonjorno, 494 U.S. at 835). Further,
post-judgment interest on a money judgment begins to accrue
"from the date the judgment is entered until payment is
made in full at the federal rate of interest as calculated
using the formula set forth in 28 U.S.C. § 1961."
Brinn v. Tidewater Transp. Dist. Comm'n, 113
F.Supp.2d 935, 939 (E.D. Va. 2000) (citing Hitachi Credit
Am. Corp. v. Signet Bank, 166 F.3d 614, 633 (4th Cir.
Attorneys' Fees and Costs
touchstone of any award of attorneys' fees and expenses
is reasonableness. SunTrust Mortg., Inc. v. AIG United
Guar. Corp., 933 F.Supp.2d 762, 769 (E.D. Va. 2013)
(quoting E.I. DuPont de Nemours and Co. v. Kolon Indus.,
Inc., No. 3:09cv058, 2013 WL 458532, at *2 (E.D. Va.
Feb. 6, 2013)). The fee applicant bears the burden of
demonstrating the reasonableness of its fee request,
Kenney v. Touch of Patience Shared Hous., Inc., 779
F.Supp.2d 516, 525 (E.D. Va. 2011), and of "providing
sufficient detail in [its] records to explain and support
[its] 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 v. Eckerhart, 461 U.S. 424, 441 (1983)
(Burger, C.J., concurring).
calculate an award of attorneys' fees the court must
determine a "lodestar fee." Grissom v. Miller
Corp., 549 F.3d 313, 320-21 (4th Cir. 2008);
Brodziak v. Runyon, 43 F.3d 194, 196 (4th Cir.
1998). 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 award, 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
lodestar fee is calculated by multiplying the number of
reasonable hours expended times a reasonable rate.
Id. The Fourth Circuit has held that the
Johnson factors must be applied in determining the
reasonable hourly rates and hours expended. See Daly v.
Hill, 790 F.2d 1071, 1077 (4th Cir. 1986). These factors
(1) the time and labor required;
(2) the novelty and difficulty of the ...