In a recent decision, Judge T.S. Ellis, III, of the Eastern District of Virginia issued a comprehensive and useful primer on applying for attorney’s fees after successful litigation of a contract claim. While this decision provides useful guidance to practitioners, it also illustrates a significant disagreement among the judges of the Eastern District regarding appropriate hourly fee rates for attorneys in Northern Virginia. This blog post is the second on this case (and the first can be found here.)
In Route Triple Seven Ltd. Partnership v. Total Hockey, Inc., No. 1:14-cv-30, 2015 WL 5123302 (E.D. Va. Aug. 28, 2015), the landlord of a strip mall in Loudoun County brought suit against a tenant corporation that sold hockey equipment in a retail store, claiming breach of the lease. Judge Ellis granted summary judgment for the defendant on the landlord’s breach of lease claims, and the tenant filed a post-summary judgment petition for attorney’s fees.
By half-way into Judge Ellis’s opinion, the tenant may have felt pretty good about its attorney’s fees claim. That likely ended, however, when the judge focused on the amount of fees claimed by the tenant. The tenant initially claimed nearly $225,000, while the landlord argued that $112,000 was the proper figure.
Judge Ellis began with the traditional “lodestar” set of factors to examine the reasonableness of claimed attorney’s fees, which is essentially the “reasonable hourly rate” multiplied by the “hours reasonably expended.” While simple on its face, those factors provide wide discretion to a court, and Judge Ellis took full advantage of that discretion. The tenant had two law firms and six attorneys on its defense team, and the tenant submitted the following hourly rates to the court (the third column reflects the rates actually allowed by Judge Ellis):
The tenant’s expert witness on attorney’s fees opined that the submitted hourly rates were reasonable, and the expert relied upon a previous EDVA decision, Vienna Metro LLC v. Pulte Home Corp., 786 F.Supp.2d 1090 (E.D. Va. 2011), which approved similar hourly rates for Northern Virginia attorneys. Judge Ellis, however, distinguished the rates in Vienna Metro LLC, stating that it “involved complex commercial real estate litigation, not a straightforward lease dispute.” The judge also critiqued the submitted rates, stating that the tenant failed to explain why the McGuireWoods partner’s higher rate was justified when he had fewer years of experience than the Armstrong Teasdale partner with a lower rate.
Moreover, this case is a further example of Judge Ellis’s disagreement with the higher hourly rates outlined in Vienna Metro LLC. (See here for a previous blog post about an earlier decision denying higher hourly fee rates.) According to Judge Ellis, the expert witness’s declaration,
does not override this Court’s long and extensive experience in this district. Many capable and experienced attorneys and paralegals litigate breach of contract cases like this case at rates lower than the rates submitted by [the tenant]. At bottom, the Vienna Metro Matrix is a glove that does not fit here. It describes a type of litigation significantly more complex than presented in this case.
Finally, Judge Ellis turned to the time-entry task descriptions submitted by the tenant. The judge complimented the tenant’s attorneys for exercising billing discretion and removing a number of time entries from the fee petition. But Judge Ellis then went on to criticize some of the entries for “two common flaws: (1) lumping and (2) vague task descriptions.”
Regarding “lumping” of entries, Judge Ellis described this as “grouping, or lumping, several tasks together under a single entry, without specifying the amount of time spent on each particular task.” (internal quotation marks omitted). The judge cited the following time entries as examples of improper “lumping”:
- “Draft notice of appearance; review changes to answer and counterclaim with D. Greensnap; multiple telephone calls with co-counsel; revise answer and counterclaim; prepare answer, counterclaim, Rule 7.1 disclosure, and notice of appearance for filing (2.1)”
- “Review Route Triple Seven’s Responses to Total Hockey’s first set of interrogatories and first request for the production of documents to Total Hockey; calculate deadlines for objections and responses and calendar deadlines; review deficiency letter; correspond with co-counsel (1.7)”
- “5.20 Continue analysis of record and appellant’s brief; conference with L. Bentele re preparation of Total Hockey brief; review cases cited in appellant’s brief.”
Turning to the “vague task descriptions,” Judge Ellis cited the following examples:
- Numerous entries that describe a task as “revise discovery”
- “brief call with M. Reh”
- “research issues involving discovery”
- “review law concerning issues in the case”
- “continue analysis of legal file”
Due to the perceived lumping and vague task descriptions, Judge Ellis applied a 15% reduction to the tenant’s fee award. After calculating the allowed hourly rates for each attorney, Judge Ellis awarded the tenant $150,527.35 in attorney’s fees, down from the $224,428.00 originally requested by the tenant.
There is apparent disagreement among the judges of the Eastern District regarding appropriate hourly fee rates in Northern Virginia, as illustrated in this and other cases. While the Vienna Metro Matrix did not fare well in this opinion or in another recent decision by Judge Ellis (see here), the matrix was approved by Judge Gerald Bruce Lee in a 2014 case (see here). The Route Triple Seven opinion has multiple reminders for the careful practitioner, not only a reminder on how to properly describe one’s time entries, but also the importance of understanding the past opinions of each judge in the Eastern District.