Two Men & A Truck/International, Inc. v. A Mover Inc.

128 F. Supp. 3d 919, 2015 U.S. Dist. LEXIS 45473
CourtDistrict Court, E.D. Virginia
DecidedApril 7, 2015
DocketCivil Action No. 2:14cv248
StatusPublished
Cited by32 cases

This text of 128 F. Supp. 3d 919 (Two Men & A Truck/International, Inc. v. A Mover Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Two Men & A Truck/International, Inc. v. A Mover Inc., 128 F. Supp. 3d 919, 2015 U.S. Dist. LEXIS 45473 (E.D. Va. 2015).

Opinion

MEMORANDUM OPINION & ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court is Plaintiffs Motion for Award of Attorneys’ Fees and Costs. Plaintiffs motion for attorneys’ fees is GRANTED-IN-PART and DENIED-IN-PART. The Court grants in part Plaintiffs motion and awards attorneys’ fees and costs in the amount of $24,804.92 ($24,310.00 in attorneys’ fees and $494.92 in costs). The Court denies in part Plaintiffs motion for attorneys’ fees to the extent such motion requests attorneys’ fees or costs beyond $24,804.92.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff owns the registered trademark “TWO MEN AND A TRUCK” as well as several federal trademark registrations for its “TWO MEN AND A TRUCK” mark, including U.S. Registration No. 4,340,844. On February 1, 2013, Plaintiff and Defendant’s predecessor, Two Men & A Truck, Inc., a competing moving business, entered into an Asset Purchase Agreement (“APA”) whereby Plaintiff purchased the trademark “TWO MEN & A TRUCK” from Defendant. Pursuant to the APA, Defendant agreed to permanently discontinue use of the designation “TWO MEN & A TRUCK” in any print or Internet advertising, and ensuring there is no residual use of “TWO MEN & A TRUCK” in those publications.

On February 18, 2014, Plaintiff filed a lawsuit against Defendant for trademark infringement, false designation or origin, and unfair competition, and for breach of the APA as a result of Defendant’s unauthorized use of the name and mark “TWO MEN & A TRUCK” in connection with the operation of its business. Plaintiffs complaint alleged that Defendant continued to refer to itself as “TWO MEN & A TRUCK” on various Internet directories and review websites such as Angie’s List, SuperPages.com, YP.com, and Yelp. Pl.’s Compl. ¶ 19; ECF No. 1. With respect to Yelp, the complaint specifically alleged that Defendant’s continued use of the mark associates Defendant’s negative reviews, which include statements that Defendant is “a scam,” has “terrible customer service,” and shows a “complete lack of professionalism,” with Plaintiff, thereby causing harm to Plaintiffs business, reputation, and goodwill. PL’s Compl. ¶24.

On March 31, 2014, Defendant’s counsel filed a Notice of Settlement, together with the parties’ fully endorsed Final Judgment and Permanent Injunction on Consent. ECF No. 8. Mr. R. David Moore, listed on the order as Defendant’s President and Secretary, signed the order on behalf of Defendant on March 31, 2014. On April 3, 2014, the Honorable Leonie M. Brinkema entered the Final Judgment and Permanent Injunction on Consent Order (“April 3, 2014 Order”) and stated that the Norfolk Division of the Court shall retain ju[924]*924risdiction over the matter to enforce a violation of the Consent Judgment’s terms. ECF No. 9.

On May 15, 2014, Plaintiff filed a Motion to Compel Defendant to Show Cause in response to Defendant’s failure to comply with the April 3, 2014 Order. ECF No. 11. On September 5, 2014, this Court ordered Defendant to show cause why it should not be held in contempt of this Court’s April 3, 2014 Order. ECF No. 17. On October 2, 2014, the show cause hearing was held and Defendant was found in civil contempt. Defendant was assessed a coercive sanction of $350.00 for every day it failed to comply with the Court’s April 3, 2014 Order. Defendant was also ordered to pay Pláintiff s attorneys’ fees and costs associated with bringing the show cause action. October 14, 2014 Mem. Op. & Order; ECF No. 27. On October 14, 2014, a status hearing was held at which it was determined that Defendant had purged the contempt as of October 6, 2014. Defendant was ordered to pay $1,400.00. On October 16, Defendant submitted its payment to the Clerk of this Court. On October 24, 2014, Plaintiff filed the instant motion and accompanying memorandum for attorneys’ fees and costs detailing billing for Mr. J. David Mayberry (partner), Mr. James W. Faris, Jr. (associate), and Ms. Shelia Blackston (paralegal). ECF Nos. 29 & 30. On November 7, 2014, Defendant filed its Memorandum in Opposition. ECF No. 31. Plaintiff did not file a reply.

II. LEGAL STANDARD

As a general matter, “[h]ours that are not properly billed to one’s client also are not properly billed to one’s adversary.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The “ ‘reasonableness’ of a rate is a concept that does not vary depending on whether the hourly rate (or the fee for that matter) is assessed for compensatory purposes or for punitive purposes.” SunTrust Mortg., Inc. v. AIG United Guar. Corp., 933 F.Supp.2d, 762, 768 (E.D.Va.2013). Thus, irrespective of whether it stems from a fee-shifting statute or a sanction, the touchstone of any award of attorneys’ fees and expenses is reasonableness. Id. at 769 (quoting E.I. DuPont de Nemours and Co. v. Kolon Indus., Inc., Civil Action No. 3:09cv058, 2013 WL 458532, *2 (E.D.Va. Feb. 6, 2013)). The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has clearly set forth the method a court should use in determining a reasonable attorneys’ fee award. In McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir.2013), as amended (Jan. 23, 2014), it explained:

The proper calculation of an attorney’s fee award involves a three-step process. First, the court must “determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir.2009). To ascertain what is reasonable in terms of hours expended and the rate charged, the court is bound to apply the factors set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Id. at 243-44. Next, the court must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Id. at 244. Finally, the court should award “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Id.

(Footnote omitted). The Johnson factors used to determine the initial lodestar figure include: (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 attor-[925]*925bey’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 88 n. 5.

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128 F. Supp. 3d 919, 2015 U.S. Dist. LEXIS 45473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/two-men-a-truckinternational-inc-v-a-mover-inc-vaed-2015.