United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION & ORDER
THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE
MATTER originally came before the Court on Plaintiff Wengui
Guo's ("Plaintiff") Motion to Compel Discovery
and for Leave to Oppose Counterclaims (Dkt. 44). The Court
granted that motion and directed Plaintiff to file a
statement of fees and costs incurred in making the motion.
(Dkt. 58 at 4-5.) Plaintiff complied with the Court's
directive and filed a statement of fees and costs on May 3,
2019 (Dkt 70) ("Fee Decl."). Defendant Yeliang Xia
("Defendant") subsequently filed an objection to
Plaintiffs statement of fees and costs. (Dkt. 73.) Upon
reviewing Plaintiffs fee statement, the Court determined
Plaintiff should provide a supplemental declaration detailing
each timekeeper's position and years of experience. (Dkt.
79.) Plaintiff also complied with that order and filed a
supplemental declaration on May 23, 2019 (Dkt. 84)
("Suppl. Fee Decl."). Now, the matter is ripe for a
Rule of Civil Procedure 37(a)(5)(A) provides that, if a court
grants a motion to compel, then "the court must...
require the party or attorney advising that conduct, or both
to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees."
Fed.R.Civ.P. 37(a)(5)(A). Therefore, should a court grant a
motion to compel, it may only decline to award reasonable
expenses if one of a limited number of exceptions apply.
the Court granted Plaintiffs motion to compel. Because the
Court finds that none of the Rule's enumerated exceptions
apply, the Court shall award Plaintiff attorney's fees
upon a determination that the requested fees are reasonable.
connection with the motion to compel, Plaintiffs counsel
spent 15.2 total hours, consisting of 14.0 hours by John D.
Morrissy, 0.70 hours by Stephen F. Ellman, 0.20 hours by
Michael Antonivich, and 0.30 hours by Anthony Rosario. (Fee
Decl. at 2.) Mr. Morrissy, a practicing attorney with
approximately 11 years' experience, is of counsel and his
hourly billing rate is $450. (Id; Suppl. Fee Decl.
at 1-2.) Mr. Ellman, a practicing attorney with approximately
44 years' experience, is a founding partner and his
hourly billing rate is $670. (Fee Decl. at 2; Suppl. Fee
Decl. at 1-2.) Mr. Antonivich is the managing clerk for
counsel's law office and his hourly billing rate is $316.
(Fee Decl. at 2; Suppl. Fee Decl. at 1.) Mr. Rosario is a
paralegal and his hourly billing rate is $252.
addition to reviewing Plaintiffs itemized time entries, the
Court also considers the twelve factors courts should take
into account when determining reasonable billing rates and
hours. See Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 243-44 (4th Cir. 2009). Of the twelve factors,
the Court finds that factors (2) novelty and difficulty of
the questions raised, (4) opportunity costs, (6)
attorney's expectations, (7) time limitations, (8) amount
in controversy, (10) undesirability, and (11) nature and
length of the attorney-client relationship are not
the remaining factors, the Court first considers factors 5
and 12: whether the requested fees are customary for like
work (factor 5) and are similar to those in other cases which
the Court has considered in the past (factor 12). To aid in
this endeavor, the Court looks to USAO's Attorney's
Fee Matrix as a helpful guide. See Brown v. Transurban
USA, Inc., 318 F.R.D. 560, 575-76 (E.D. Va. 2016)
(finding that the USAO "Matrix is useful `as a guideline
for reasonable attorneys' fees'1'' and
"other courts in the Fourth Circuit have used" the
Matrix (quoting In re Neustar, No. 1:14-cv-885
(JCC/TRJ), 2015 WL 8484438. at *IO n.6 (E.D. Va. Dec. 8,
2015))).The current, relevant USAO matrix rates can
be viewed in the table below:
Paralegals and Law Clerks
reviewing the matrix, Mr. Morrisy's billing rate falls
below the recommended rate for an attorney of his experience.
Conversely, Mr. Ellman's rate is slightly above the
recommended rate, charging $57 more than the suggested rate
for an attorney of his experience. However, given that the
overage is relatively minor when considering Mr. Ellman's
substantial number of years of experience, the Court finds
that Mr. Ellman's rate is reasonable. With regard to Mr.
Antonivich and Mr. Rosario, the Court finds that their
billing rates are Si50 and $86 more than what is recommended,
respectively, and thus both should be reduced to $166.
the Court considers whether the time and labor expended are
reasonable and necessary (factor 1). The Court finds that
majority of counsel's time and labor expended in
connection with the motion to compel are reasonable and
necessary. However, the Court will decline to grant
Plaintiffs request for payment of fees incurred in seeking
leave to file a reply to Defendant's counterclaims. Rule
37 applies to discovery related issues. Seeking leave to file
a late responsive pleading does not fall under the auspices
of that rule. Accordingly, the Court shall reduce Plaintiffs
requested fees by 25% for each time entry in which counsel
expended time on his response to Defendant's
counterclaims. This includes Mr. Morrissy's March 1st
entry for 5.5 hours, Mr. Ellman's March 1st entry for 0.4
hours, Mr. Morrissy's March 13th entry for 1.2 hours, and
Mr. Morrisy's March 14th entry for 5.3 hours. (Fee Decl.
at 2.) As a result, the Court shall reduce Plaintiffs
requested fees by $1, 467.25.
Court also questions the reasonableness and necessity of the
time expended by counsel's clerk, Mr. Antonivich. His
sole billing entry is an entry for 0.20 hours spent towards
reviewing (presumably) Plaintiffs reply in support of its
motion. Without more detail, and even taking into
consideration that the Court already reduced his rate, the
Court cannot find that Mr. Antonivich's time was
reasonable or necessary. Therefore, the Court will write off
Mr. Antonivich's time, a reduction of $63.20. In terms of
Mr. Rosario, his sole billing entry is an entry for 0.30
hours spent towards filing Plaintiffs motion on the public
docket. This work is clearly necessary and reasonable,
especially when viewed in light of the Court's decision
to reduce Mr. Roasrio's hourly rate. As a result, the
Court will allow Plaintiff to recover fees for Mr.
Rosario's time at his reduced rate, a reduction of
Court finds the remaining factors, the skill required (factor
3) in a defamation case and the experience, reputation, and
abilities of the attorneys (factor 9), further justify
awarding Plaintiff its requested fees as amended by the
it is hereby ORDERED that Defendant shall pay Plaintiff the
total sum of $5, 351.55 within ten (10) ...