United States District Court, W.D. Virginia, Lynchburg Division
Robert E. Lee Supinger, Jr., Plaintiff,
Commonwealth of Virginia, ET AL., Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Court referred Plaintiff Robert E. Lee Supinger, Jr.'s
(“Plaintiff”) motions for attorneys' fees and
costs to Magistrate Judge Robert Ballou for proposed factual
findings and a recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). The matter is now before the Court on
Plaintiff's motions for attorney fees and costs, (dkts.
211, 213), the Report and Recommendation of Judge Ballou,
(dkt. 236, hereinafter “R&R”), and both
parties' objections thereto, (dkts. 240, 241). Judge
Ballou recommended that this Court award Plaintiff a fee
award of $488, 962.60, and a costs award of $2, 704.90, for a
total of $491, 667.50. Plaintiff and Defendants filed a total
of eight objections to the R&R, and so the Court will
review those portions of the R&R de novo. For
the reasons set forth below, the Court will overrule
Plaintiff's objections, sustain in part and overrule in
part Defendants' objections, and adopt the R&R as
modified to reflect Wooten v. Commonwealth, No.
courts can award reasonable attorney's fees to prevailing
parties in civil rights litigation. 42 U.S.C. § 1988.
The amount of the fee must be determined by the facts of each
case, and “the fee applicant bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”
Hensley v. Eckerhart, 461 U.S. 424, 436 (4th Cir.
1983). Fee awards should be “adequate to attract
competent counsel, but . . . not produce windfalls to
attorneys.” City of Riverside v. Rivera, 477
U.S. 561, 580 (1986). “[T]he proper calculation of an
attorney's fee award involves a three step
process.” McAfee v. Boczar, 738 F.3d 81, 88
(4th Cir. 2013). First, the court must calculate the lodestar
figure by multiplying the number of reasonable hours extended
by a reasonable rate. Id. To determine these
variables the Court should apply the factors set forth in
Johnson v. Georgia Highway Express Inc., 488 F.2d
714, 717-19 (5th Cir. 1974). Id.
(citing Robinson v. Equifax Info. Servs., LLC, 560
F.3d 235, 243 (4th Cir. 2009). Second, the Court must
“subtract fees for hours spent on unsuccessful claims
unrelated to successful ones.” Id. (internal
quotations omitted). Finally, the Court should award a
percentage of the remaining amount “depending on the
degree of success enjoyed by Plaintiff.” Id.
(internal quotations omitted).
court refers a matter to a magistrate judge, any objections
to the magistrate judge's R&R must be reviewed de
novo. Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982); see also 28 U.S.C.A. § 636(b)(1).
In addressing the objections, “[t]he district court
does not need to provide an elaborate or lengthy explanation,
but it must provide a specific rationale that permits
meaningful appellate review.” Cruz v.
Marshall, 673 Fed.Appx. 296, 299 (4th Cir. 2016).
parties do not object to the R&R's recitation of the
facts or procedural history in this case, and for that reason
that portion of the R&R will be incorporated into this
opinion. (See R&R at 2-4). Briefly, Plaintiff
filed suit in 2015, asserting fourteen claims against various
defendants. (Id. at 3). Most of his claims were
dismissed for failure to state a claim or summary judgment
was granted for Defendants. (Id.). This Court
granted summary judgment in favor of Plaintiff regarding his
procedural due process claim. (Id.). That judgment
was affirmed by the Fourth Circuit. (Dkts. 141, 198). The
Fourth Circuit remanded the case for a trial on damages, but
the parties reached an agreement identifying Plaintiff as the
prevailing party and determining damages and equitable
relief. (Dkt. 211). The parties further agreed to submit the
case to this Court for determination of an appropriate award
of attorney's fees and costs. (Dkt. 211).
lodged a total of five objections to the R&R. (Dkt. 241).
He states the R&R erred in the following ways: (1) its
determinations regarding Plaintiff's billing records,
including its concerns about time spent reviewing discovery;
(2) its subtraction of time entries because of duplicative
efforts; (3) its reduction imposed for unrelated claims; (4)
its failure to consider the case's impact on the legal
landscape; and (5) its consideration of the terms of the
settlement agreement. Defendants also filed objections to the
R&R, alleging that it erred in three ways: (1) its
analysis of the unrelated claims; (2) its failure to consider
Wooten v. Commonwealth; and (3) its failure to
properly reduce Plaintiff's request for fees and costs
associated with preparing his fee petition. The Court will
address each objection within the framework provided by
McAfee. 738 F.3d at 88.
Objections Regarding the Lodestar Figure
first step in calculating fees is determining the lodestar
figure. McAfee, 738 F.3d at 88. To do so, the Court
must consider the factors set forth in Johnson. 488
F.2d at 717; see McAffee, 738 F.3d at 88 n. 5
(adopting these factors). Although “Defendants do not
object to the Report's calculation of the lodestar,
” (dkt. 240 at 10), Plaintiff's first and second
objections are directly related to the R&R's lodestar
calculation. Specifically, Plaintiff objects to the
R&R's reduction based on “excessiveness,
vagueness, and block billing, ” as well as the
“duplication of efforts.” (R&R at 7-14). Both
of these determinations are relevant to the first
Johnson factor, the time and labor expended, and
resulted in a 20% reduction to the lodestar calculation.
(R&R at 16); see McAfee, 738 F.3d at 88 n. 5.
Undertaking a de novo review, the Court considers
both of Plaintiff's objections to the lodestar figure in
Excessiveness, Vagueness, and Block Billing
“The party requesting a fee bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”
Project Vote/Voting for America, Inc. v. Long, 887
F.Supp.2d 704, 709 (E.D. Va. 2012) (citing Hensley,
461 U.S. at 437). “Counsel for the prevailing party
should make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary.” Hensley, 461 U.S. at 434.
“Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.”
Id. at 433. “Inadequate documentation includes
the practice of grouping, or lumping, several tasks together
under a single entry, without specifying the amount of time
spent on each particular task.” Guidry v.
Clare, 442 F.Supp.2d 282, 294 (E.D. Va. 2006). Vague
descriptions may also warrant the reduction of an award.
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169,
179 (4th Cir. 1994) (“We have frequently exhorted
counsel to describe specifically the tasks performed, a
practice which is especially necessary when we review an
award in a case where the plaintiff has not prevailed on all
Court does not dispute that this case required significant
time and effort by those involved, but the record does not
justify the fee award Plaintiff requests. The records
provided are replete with vague entries such as “legal
research, ” “review and respond to emails,
” “prepare for depositions, ” “work
on appeal, ” “work on discovery, ” and
“review, ” “digest, ” or
“work” on transcripts. (Dkt. 212-1). In a case
such as this, where the litigation spanned years and
“the plaintiff has not prevailed on all the claims,
” such descriptions force the Court to “labor to
dissect” each individual entry to determine if the task
described could reasonably result in the requested time.
See Rum Creek Coal Sales, 31 F.3d at 179;
Long, 887 F.Supp.2d at 717.
the records indicate multiple instances of excessive or block
billing, especially given that these entries are often
coupled with vague descriptions. For example, Mr. Grimes
seeks compensation for 25 hours to “prepare for
deposition” of Commissioner Richard Holcomb, not
including the 1.3 hours recorded for “client
conference” the night preceding the deposition or the
3.2 hours entered for the deposition itself. (Dkt. 212-1 at
17). Without more information and context the Court is left
to guess if 25 hours of preparation is appropriate or
excessive. A similar problem exists as to Ms. Haddox's
entries. She spent 3.1 hours “reading defendants'
appeal opening brief, ” (id. at 24), and 4.4
hours “review[ing] filings on ECF system, ” (dkt.
212-1 at 7). Again, the Court is left to hypothesize whether
or not this time is excessive given the descriptions.
are also multiple instances of block billing in
Plaintiff's records. For example, Mr. Grimes billed 7.3
hours to “prepare for depositions of Elizabeth Jensen,
John Dawson, Thomas, Dash and Ronna Howard, ” (dkt.
212-1 at 16), and 6.2 hours to “review DMV's
opposition to consolidation in Wooten case and work
on reply memorandum and email to counsel concerning
consolidation.” (Id. at 32). While Ms. Haddox
did not as frequently lump together her billing entries,
there are entries such as 7.2 hours billed for “oral
argument of summary judgment motions in Stultz in preparation
for our upcoming motions and hearings and reviewing letter
filed by defendants concerning upcoming hearing with Judge
Ballou concerning discovery concerns, ” (id.
at 20), and 7.5 hours for “research and work on
drafting memorandum in opposition to defendants' motion
for summary judgment.”
instances of vague and block billing support a reduction of
the requested fees. Plaintiff argues that the reduction was
inappropriate “because the opinion overlooks the
fundamental fact that defense counsel failed to provide
any of their time records.” (Dkt. 241 at 1)
(emphasis in original). To support this proposition,
Plaintiff relies on a case from the District of Nevada, which
stated that defendant failed to present any evidence for
finding the bills were unreasonable, “for example,
[defendant] has not supplied the court with any evidence of
how many hours were billed by its counsel. . . . [I]n the
absence of such evidence, any reductions in plaintiff's
counsel's bill would be arbitrary in nature.”
Snell v. Reno Hilton Resort, 930 F.Supp. 1428
(D.Nev. June 17, 1996). But under Fourth Circuit precedent,
Plaintiff “bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended
and hourly rates.” Long, 887 F.Supp.2d at 709;
Spell v. McDaniel, 852 F.2d 762, 765 (4th Cir. 1988)
(noting the fee applicant must prove that hours spent and
hourly rates are reasonable). Here, the Court's concern
is that the record ...