United States District Court, E.D. Virginia, Richmond Division
UNITED STATES OF AMERICA ex rel. NATHAN KIRCHGESSNER, Plaintiffs,
JAMES RIVER AIR CONDITIONING CO., et al., Defendants.
A. Gibney Jr. United States District Judge
matter comes before the Court on the relator's motion for
attorneys' fees and costs. For the reasons that follow,
the Court will grant in part the motion and award the relator
relator, Nathan Kirchgessner, filed a case under the False
Claims Act ("FCA") against James River Air
Conditioning Company ("JRA"). The relator alleged
that JRA underpaid workers on government construction
projects and falsely certified that JRA paid the workers
according to federal laws. The government chose to intervene
in the case and pursue two FCA claims against
JRA answered the complaint, the parties reached a $625, 000
settlement, $106, 250 of which will go to the relator. The
parties, however, could not resolve the relator's claim
for attorneys' fees and costs. While JRA agrees that the
relator qualifies as a prevailing party entitled to
reasonable attorneys' fees and costs under the FCA, the
Court must decide a "reasonable" fee award. 31
U.S.C. § 3730(d)(1).
calculate an award, courts first determine a
"lodestar" by multiplying a reasonable rate by a
reasonable number of hours. Robinson v. Equifax Info.
Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). Twelve
factors guide courts' discretion in formulating a
(1) the time and labor ex1pended; (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 243-44. Next, courts subtract fees for hours
spent on unsuccessful claims that are not related to
successful ones. Id. at 244. On the other hand, if
unsuccessful claims arise out of the same facts or legal
theories as successful claims, courts should not eliminate
them from the award. McNeil v. Famuli, No.
4:15-cv-81, 2017 WL 9771834, at *10 (E.D. Va. Nov. 8, 2017).
Finally, courts award some percentage of the remaining amount
based on the plaintiffs degree of success. Robinson,
560 F.3d at 244.
applicant has the burden to establish the reasonableness of a
requested rate. Id. In addition to the
applicant's own affidavit, he must produce
"satisfactory specific evidence of the prevailing market
rates" for the work he performed in the relevant market.
Id. The relevant market is the "community in
which the court where the action is prosecuted sits,"
unless "the complexity and specialized nature of the
case" mean that no local attorney has the required
skills. Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 175, 179 (4th Cir. 1994). In this
case, that market is Richmond, Virginia. See Yamaha Motor
Corp. v. Jim's Motorcycle, Inc., 381 F.Supp.2d 499,
505 (E.D. Va. 2005) (using Richmond rates for a case pending
in this division).
relator's fee petition refers to the "Laffey
Matrix." The Laffey Matrix shows reasonable rates for
attorneys in Washington, D.C., but it does not serve as a
"reliable indicator" for attorney rates in the
Eastern District of Virginia. Robinson, 560 F.3d at
245 (declining to apply the Laffey Matrix in the Alexandria
division). The Laffey Matrix "is largely
irrelevant" to the Richmond market in particular because
"[r]ates in Washington, D.C. are considerably higher
than those in Richmond for equally qualified and experienced
attorneys." McAfee v. Boczar, 906 F.Supp.2d
484, 493 n.3 (E.D. Va. 2012), rev'd on other
grounds, 738 F.3d 81 (4th Cir. 2013). Additionally,
regional rate surveys, like those from the National Law
Journal, do not qualify as the type of specific rate evidence
a fee applicant needs to carry his burden. In re Star
Sci, Inc., No. 1:13-cv-550, 2016 WL 4820637, at *6 n.9
(E.D. Va. Aug. 3, 2016) (citing Westmoreland Coal Co. v.
Cox, 602 F.3d 276 (4th Cir. 2010)).
the relator's evidence does not demonstrate the
reasonableness of counsel's fees. First, the Laffey
Matrix does not help the relator. The relator's
attorneys, located near Washington, D.C, in Greenbelt,
Maryland, point out that they request rates slightly lower
than the Laffey Matrix. (Dk. No. 51-1, at 6.) But the Matrix
represents rates "considerably higher"
than rates in the Richmond market. McAfee, 906
F.Supp.2d at 493 n.3 (emphasis added). Moreover, to rely on
the Laffey Matrix, the relator would have to show that he had
to find counsel in Washington, D.C, because no Richmond
attorney could have handled this complex FCA case. See
Rum Creek, 31 F.3d at 179. The relator has not done so
Nicholas Woodfield submitted a supporting affidavit for the
fee petition, but his office is in the Washington, D.C. area.
He says he learned about the Richmond market by "reading
other attorneys' fee applications and supplying
affidavits." (Dk. No. 51-5, at 2.) The Court does not
find Woodfield's affidavit persuasive for this market.
See McNeil, 2017 WL 9771834, at *6 (rejecting
Woodfield's opinion for a fee petition in the Newport
News division). The relator also submitted an affidavit from
Zachary Kitts, an FCA attorney based in northern Virginia,
just outside of Washington, D.C. Kitts similarly relied on
affidavits from other cases to form his opinion about
Richmond rates. Moreover, Kitts cited a National Law Journal
survey, a source that does not prove the customary fee in a
given market. See In re Star ScL, 2016 WL 4820637,
at *6 n.9 ("[T]he Court cannot accept the survey from
the National Law Journal as an adequate substitute for the
'specific evidence' of applicable rates.").
the relator's attorneys certainly possess the experience
and skill that an FCA case requires, the relator has not
carried his burden to demonstrate the reasonableness of their
rates in the Richmond market. Accordingly, the Court will
reduce counsel's rates, except for law clerk rates, by
e.g., In re Mediation in Health Diagnostic, Lab., Inc.,
No. 3:17-mc-4, 2018 WL 524711, at *5-6 (E.D. Va. Jan. 23,
2018) (awarding a $400 rate for a partner and a $200 rate for
an associate when the movant did not prove the reasonableness
of higher rates). This yields an hourly rate of $425 for
Brian J. Markovitz; $273 for Matthew E. Kreiser; $263 for
Timothy L. Creed and Jason M. Sarfati; and $159 for N. Brenda
Adimora and William J. Fuller.
Court next turns to a reasonable number of hours for this
case. Counsel must exercise billing judgment as to the hours
worked. Hyatt v. Barnhart,315 F.3d 239, 253 (4th
Cir. 2002). When reviewing timesheets, courts look for
duplication of work, "lumping" of multiple tasks
into one time entry, and vague or inadequate task
descriptions. In re Star ScL, 2016 WL 4820637, at
*7-8. In the fee petition, the relator's attorneys
reduced their hours ...