Dmarcian, Inc. v. DMARC Advisor BV

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00067-MR
DMARCIAN, INC., )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
DMARCIAN EUROPE BV, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s Motion for
Attorneys’ Fees and Costs [Doc. 88].
I. BACKGROUND
The Plaintiff dmarcian, Inc. (“the Plaintiff” or “dInc”) initiated this action
for copyright and trademark infringement and related state claims against the
Defendant dmarcian Europe BV (“the Defendant” or “dBV”) on March 12,
2021. [Doc. 1]. On March 25, 2021, the Plaintiff filed a motion for a
temporary restraining order and preliminary injunction, seeking to enjoin the
Defendant from (1) making, using, distributing, and/or selling dmarcian
software code/derivative works; (2) directly or indirectly using the Plaintiff’s
trademarks or any other similar mark, word, or name likely to cause
confusion, mistake, or deceive; (3) infringing the Plaintiff’s registered
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copyright; (4) misrepresenting its present affiliation with the Plaintiff; and (5)
interfering with customer relationships, contacting, posting false notice to,
and misrepresenting falsely to customers that the Plaintiff had caused a
breach of customer data. [Doc. 6 at 1-2]. On March 31, 2021, the Court
denied the Plaintiff’s request for a temporary restraining order and held the
motion for preliminary injunction in abeyance pending further presentation of
evidence and briefing by the parties. [Doc. 12].
Shortly before the preliminary injunction hearing was to be held, the
Defendant filed a motion to dismiss for lack of personal jurisdiction and forum
non conveniens. [Doc. 22]. The Court heard the Defendant’s motion along
with the Plaintiff’s preliminary injunction motion at a hearing on April 23,
2021.
The Court issued an Order granting a preliminary injunction and
denying the Defendant’s motion to dismiss on May 26, 2021 (“the Preliminary
Injunction Order”). [Doc. 39]. As is relevant here, paragraphs (4), (5), (6),
and (7) of the Preliminary Injunction Order enjoined the Defendant, its
officers, agents, servants, employees, attorneys, affiliates, and those
persons in active concert or participation with it from:
(4) using the Plaintiff’s trademark in any manner unless such
use is accompanied by a statement which reads: “This
trademark is the trademark of dmarcian, Inc. This website
is produced and generated and posted by dmarcian
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Europe BV, which is a different entity from dmarcian, Inc.
This trademark is being used at this location without the
permission of dmarcian, Inc. and only pursuant to the terms
of a court order allowing its temporary use during litigation
between dmarcian, Inc. and dmarcian Europe BV.” That
statement must be at least the size of the trademark itself,
as presented, or 12-point type when displayed on a 24”
computer screen, whichever is larger. Such statement
must appear immediately adjacent to the location where
the trademark appears, and must be shown at each
location where the trademark appears, whether that be on
the Defendant’s website, in printed material, an electronic
display, or otherwise;
(5) displaying any website with the “dmarcian” name unless
that website includes a statement that “The dmarcian
software was originally developed by dmarcian, Inc. This is
not the website of dmarcian, Inc. The website of dmarcian,
Inc. can be found at https://dmarcian.com.” That statement
must be displayed as a banner at the top of each page of
the website on which the dmarcian name appears and
must be of a size that is at least 12-point type when
displayed on a 24” computer screen, and the reference to
the website of the Plaintiff must be a link to that website;
(6) redirecting, encouraging, or allowing any customer to
change its service provider or payment recipient from
dmarcian, Inc. to dmarcian Europe, BV; or
(7) making any public statement about dmarcian, Inc. except
as expressly allowed or directed herein.
[Doc. 39 at 75-77].
On June 22, 2021, the Plaintiff filed a Motion for Order to Show Cause,
arguing that the Defendant was violating the Preliminary Injunction Order in
four primary respects. [Doc. 43]. First, the Plaintiff argued that the
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Defendant was “violating Paragraph (4) of the Order by failing to either post
the required disclaimers or cease the use of all dmarcian domain names to
redirect all global customers and potential customers to Defendant’s newly
established website, dmarcadvisors.com.” [Id. at 2]. Second, the Plaintiff
argued that the Defendant was violating Paragraphs (4) and (5) of the Order
by failing to post court-required disclaimers on its websites where the use of
the dmarcian name or dmarcian mark appeared. [Id.]. Third, the Plaintiff
argued that the Defendant was violating Paragraph (4) of the Order by failing
to post the required disclaimers where the dmarcian name and/or mark were
used on its non-website publications, as well as in signature blocks in emails.
[Id. at 2-3]. Finally, the Plaintiff claimed that the Defendant was violating
Paragraphs (4), (6), and (7) of the Order by soliciting customers to move to
dBV’s platform and away from dmarcian’s platform by stating that dmarcian’s
platform was “unsafe” and using the Plaintiff’s trademarks in that
communication without the required disclaimers. [Id. at 3].
On June 28, 2021, the Defendant appealed the Preliminary Injunction
Order to the Court of Appeals for the Fourth Circuit. [Doc. 52]. That appeal
remains pending.
The Court held a show cause hearing on July 28, 2021. Following that
hearing, on August 5, 2021, the Defendant voluntarily shut down the
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“dmarcian” domains and stopped redirecting traffic to its dmarcadvisor.com
websites. [Doc. 78: Groeneweg Decl. at ¶ 5].
On August 11, 2021, the Court entered an Order (“the Contempt
Order”) holding the Defendant in civil contempt. [Doc. 80]. Specifically, the
Court found that the Defendant had used the Plaintiff’s trademark, in violation
of paragraph (4), by “redirecting website traffic for various ‘dmarcian’ domain
names to the Defendant’s website without posting the relevant disclaimers
that are required by the Preliminary Injunction.” [Id. at 14, 21-22]. The Court
rejected the other grounds asserted by the Plaintiff, finding that the Plaintiff
had not shown by clear and convincing evidence that the Defendant had
violated the Preliminary Injunction in the other ways alleged. [Id. at 22-23,
23-24].
As a sanction for the Defendant’s contempt, the Court ordered the
Defendant to pay $5,000.00 per day for each day, starting from May 29,
2021, that the Defendant continued to operate any of the websites featuring
“dmarcian” domain names following the entry of the Preliminary Injunction
Order. [Id. at 24-25]. While acknowledging that the Defendant had already
provided some evidence of its voluntary attempts to purge its contempt, the
Court gave the parties fourteen days to provide any further evidence of the
Defendant’s compliance or non-compliance with the Preliminary Injunction.
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[Id. at 25]. The Court further ordered the Defendant to pay the Plaintiff its
reasonable attorneys’ fees and costs in litigating the contempt matter and
directed Plaintiff to file a brief detailing its reasonable costs, fees, and
expenses incurred in this action. [Id. at 27].
On August 25, 2021, the Defendant filed the Sixth Declaration of
Martijn Groeneweg, addressing the Defendant’s efforts at compliance with
the Preliminary Injunction Order. [Doc. 84]. After receiving an extension of
time to do so, the Plaintiff filed the present motion, seeking an award of fees
and expenses, as well as a calculation of the total amount of sanctions owed
under the Contempt Order. [Doc. 88]. The Plaintiff subsequently
supplemented its motion with the filing of an additional invoice for expenses
by attorney Mark Nebring of the law firm Moore & Van Allen, presumably for
his work performed in reviewing the case and offering an opinion regarding
the reasonableness of the hourly rates charged by the Plaintiff’s attorneys.
[See Doc. 100].
II. STANDARD OF REVIEW
District courts have “inherent power to enforce compliance with their
lawful orders through civil contempt.” Shillitani v. United States, 384 U.S.
364, 370 (1966). “That power includes the ability to award damages and
attorney's fees to an aggrieved party.” Rainbow Sch., Inc. v. Rainbow Early
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Educ. Holding LLC, 887 F.3d 610, 617 (4th Cir. 2018) (citing Hutto v. Finney,
437 U.S. 678, 691 (1978)).
III. DISCUSSION
A. Jurisdiction to Enforce Preliminary Injunction Order
As a preliminary matter, the Court notes that the Defendant has filed
an interlocutory appeal of the Preliminary Injunction Order, and that this
appeal is currently pending. While the Defendant sought to stay the
injunction pending appeal [Doc. 59], that motion was denied [Doc. 81].
Despite the pendency of this appeal, the Court may nevertheless
proceed to enforce the Preliminary Injunction Order through a finding of
contempt and an award of fees and expenses. “A judge may—and should—
enforce an un-stayed injunction while an appeal proceeds.” Union Oil Co. v.
Leavell, 220 F.3d 562, 565-66 (7th Cir. 2000); see also Chrysler Motors Corp.
v. Int’l Union, Allied Indus. Workers of America, AFL-CIO, 909 F.2d 248, 250
(7th Cir. 1990) (holding that “[a]n interlocutory appeal does not divest the
district court of jurisdiction” where the injunction had not been stayed pending
appeal). Accordingly, the Court may proceed to enforce its injunction and
award fees and expenses incurred by the Plaintiff in litigating the issue of the
Defendant’s contempt.
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B. Sanctions
The Plaintiff asks that the Court determine the amount of sanctions that
have accrued under its August 11th Contempt Order. [Doc. 89 at 23 & n.6].
In response, the Defendant submits evidence that it has not “displayed any
website with a ‘dmarcian’ domain name since May 29, 2021” and that it has
“stopped all redirection from ‘dmarcian’ domains to DMARC Advisor
websites” as of August 5, 2021. [Doc. 101 at 12 n.3; Doc. 78: Groeneweg
5th Decl. at ¶ 5; Doc. 84: Groeneweg 6th Decl., Doc. 84 at ¶¶ 11,12].
Based on the evidence presented by the parties, it appears that after
the entry of the Preliminary Injunction Order on May 29, 2021, the Defendant
continued to use “dmarcian” domains, without the required disclaimers, in
order to redirect traffic to its DMARC Advisor websites, and that it continued
such usage for 67 days, until August 5, 2021.1 In the August 11, 2021 Order,
the Court concluded that the use of such domains in order to redirect traffic
to the Defendant’s websites was contemptuous conduct and imposed a
sanction of $5,000 per day until such contempt was purged. [Doc. 80 at 26-
1 In a footnote, the Plaintiff contends that the Defendant’s contemptuous conduct
continued until at least August 23, 2021, due to the Defendant’s use of the “dmarcian”
domain in certain email addresses. [Doc. 89 at 23 n.6]. Having reviewed the evidence
presented by the Plaintiff, particularly the Declaration of Ms. Duffy and its exhibits [Doc.
85], the Court does not find the use of the “dmarcian” domain in certain email addresses
to fall within the parameters of conduct that the Court found to be contemptuous in its
August 11th Order.
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27]. Based on the nature and volume of the business involved, the Court
concludes that this is a reasonable sanction for the Defendant’s
contemptuous conduct. The Defendant should have, and easily could have,
redirected those domains (and used disclaimers) within a relatively short
period of time after entry of the Preliminary Injunction Order in order to
accurately represent the status quo. As the Defendant failed to timely do so,
the Court concludes that a sanction of $335,000, representing a sanction of
$5,000 per day for 67 days, is appropriate.
C. Attorneys’ Fees
The Court now turns to the issue of the Plaintiff’s fees and expenses
incurred in litigating the contempt issue. The Plaintiff seeks fees and
expenses in the total amount of $106,937.40 for the work performed by five
attorneys: Pamela S. Duffy and Katherine W. Dandy of the law firm of
Sharpless McClearn Lester Duffy, PA, located in Greensboro, North
Carolina; and David A. Dorey, Timothy D. Pecsenye, and Jillian M. Taylor of
the law firm of Blank Rome LLP, located in Wilmington, Delaware.2
2 The Plaintiff originally sought an award of fees and expenses in the amount of
$105,945.40. [See Doc. 89]. After deducting two time entries of $1,056.00 that were
included in error and adding the invoice of attorney Mark Nebring in the amount of
$2048.00 as an expense, the total award sought by the Plaintiff comes to $106,937.40.
[See Doc. 103 at 10].
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In awarding attorneys’ fees and expenses incurred with respect to a
contempt proceeding, the Court “should first focus on the time and labor
expended and the customary fees for like work.” In re Gen. Motors Corp.,
110 F.3d 1003, 1032 (4th Cir. 1997); Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 174 (4th Cir. 1994) (“The starting point for
establishing the proper amount of an award is the number of hours
reasonably expended, multiplied by a reasonable hourly rate.”). After
determining this initial amount, the Court must then “consider whether to
adjust the fee on the basis of other factors, briefly explaining any
adjustment.” In re Gen. Motors Corp., 110 F.3d at 1032 (quoting Colonial
Williamsburg Foundation v. Kittinger Co., 38 F.3d 133, 138 (4th Cir. 1994).
In exercising its discretion in the application of this lodestar method, the
Court is guided by the following factors:
(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 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.
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Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (quoting Spell
v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir. 1987)). “Although the Court
considers all of the factors, they need not be strictly applied in every case
inasmuch as all of the factors are not always applicable.” Firehouse
Restaurant Group, Inc. v. Scurmont LLC, No. 4:09-cv-00618-RBH, 2011 WL
4943889, at *12 (D.S.C. Oct. 17, 2011) (citing EEOC v. Service News Co.,
898 F.2d 958, 965 (4th Cir. 1990)). The burden is on the fee applicant to
justify the reasonableness of the requested fee. See Blum v. Stenson, 465
U.S. 886, 895 n.11 (1984).
1. Time and Labor Expended
The Court begins its lodestar analysis with considering the time and
labor expended by the Plaintiffs’ attorneys. “In determining the appropriate
number of hours to be included in a lodestar calculation, the district court
should exclude hours ‘that are excessive, redundant, or otherwise
unnecessary.’” Doe v. Kidd, 656 F. App’x 643, 656 (4th Cir. 2016) (quoting
in part Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
The Plaintiff contends that its attorneys spent a total of 204.50 hours
of attorney time litigating the Defendant’s contempt, including preparing the
fee petition. [Doc. 89]. In its Reply brief, the Plaintiff concedes that 4.1 of
these hours were included by mistake. [Doc. 103 at 10]. Accordingly, the
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Plaintiff seeks a revised total of 200.40 hours in attorney time.3 Upon review
of the attorneys’ billing records, the Court finds the total amount of time and
labor expended to be reasonable.
2. Novelty and Difficulty of the Questions Raised
This case presents novel and difficult questions, as it involves an
international dispute over the ownership of certain intellectual property, with
complex branding and contractual issues. The contemptuous conduct at
issue involved the use of the Plaintiff’s trademark as a domain name to
market the Defendant’s services, as well as the Defendant’s rebranding
efforts over multiple websites. Accordingly, this factor weighs in favor of the
reasonableness of the requested award.
3. Skill Required to Properly Perform the Legal Services
The attorneys employed significant technical knowledge and expertise
in analyzing the Defendant’s conduct and ascertaining whether it was
complying with the Court’s Preliminary Injunction. Accordingly, this factor
weighs in favor of the reasonableness of the requested award.
3 The Defendant argues that .5 hours charged by Ms. Duffy for seeking an extension of
time is not attributable to any conduct by the Defendant, and thus should not be included
in the hours to be compensated. [Doc. 101 at 20]. The Court cannot say that the .5 hours
charged is excessive, redundant, or unnecessary, and therefore, this charge shall be
included in the total number of hours sought.
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4. Opportunity Costs of Litigation
Under the relevant factors, an “attorneys’ opportunity costs include the
higher rates they would have otherwise charged in other cases and
projects.” Irwin Indus. Tool Co. v. Worthington Cylinders Wis., LLC, 747 F.
Supp. 2d 568, 596 (W.D.N.C. 2010). Here, litigating the contempt motion
involved considerable effort to ascertain compliance and to attempt to bring
the Defendant into compliance. This prevented the Plaintiff’s counsel from
devoting time to other matters. [See Doc. 85: Duffy Decl. at ¶ 6].
Accordingly, this factor weighs in favor of the reasonableness of the
requested award.
5. Customary Fee for Similar Work
As the Fourth Circuit has recognized:
Determination of the hourly rate will generally be the
critical inquiry in setting the reasonable fee, and the
burden rests with the fee applicant to establish the
reasonableness of a requested rate. In addition to the
attorney’s own affidavits, the fee applicant must
produce satisfactory specific evidence of the
prevailing market rates in the relevant community for
the type of work for which he seeks an award.
Although the determination of a market rate in the
legal profession is inherently problematic, as wide
variations in skill and reputation render the usual
laws of supply and demand largely inapplicable, the
Court has nonetheless emphasized that market rate
should guide the fee inquiry.
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Robinson v. Equifax Info. Svcs., LLC, 560 F.3d 235, 244 (4th Cir. 2009)
(citing Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). In addition to
consideration of specific evidence regarding the prevailing market rate, the
Court may rely upon its own knowledge and experience of the relevant
market in determining a reasonable rate. See Rum Creek Coal, 31 F.3d at
179 (“[T]he community in which the court sits is the first place to look to in
evaluating the prevailing market rate.”).
The Plaintiff requests compensation for time spent by five attorneys at
hourly rates between $945 and $240. The Defendant agrees that Ms. Duffy’s
$330 rate and Ms. Dandy’s $240 rate are reasonable, but it objects to the
rates charged by the Plaintiff’s Blank Rome attorneys because they “are in
excess of the prevailing market rates in this District for litigation of this type.”
[Doc. 101at 16-17 (quoting Textron Fin. Corp. v. Seven Falls Golf & River
Club, LLC, No. 1:09cv312, 2011 WL 251115, at *9 (W.D.N.C. Jan. 25,
2011)]. Mr. Dorey charged the Plaintiff $795 per hour, more than twice as
much per hour as Ms. Duffy.
Based on the Court’s own experience and familiarity with the hourly
rates charged in Western North Carolina, the Court finds that this rate is
unreasonable. Accordingly the Court will reduce Mr. Dorey’s hourly rate to
$330, the same rate as charged by Ms. Duffy.
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The Court will likewise reduce the hourly rates charged by Mr.
Pecsenye and Ms. Taylor. Like Ms. Dandy, Mr. Pecsenye and Ms. Taylor
are not admitted to the Bar of North Carolina or this Court. Furthermore, they
are not attorneys of record in this case. The Court finds that the work they
performed assisting Mr. Dorey should be compensated at $240 per hour, the
same rate as the work Ms. Dandy performed to assist Ms. Duffy. Cf. Priestley
v. Astrue, 651 F.3d 410, 419 (4th Cir. 2011) (holding that work performed by
non-admitted attorneys could be compensated at “the prevailing market rate
for services of the kind provided by them, based on their training, skill, and
experience; provided that in no event may this rate be less than the rate
traditionally used for summer associates, paralegals, and other nonattorneys
performing legal work”).
6. Attorneys’ Expectation at Outset of Litigation
The Plaintiff’s attorneys have charged their fees on an hourly basis.
The expectations of the Plaintiff’s counsel were not limited to either a fixed
fee agreement or by the risk inherent in a contingency fee arrangement.
7. Time Limitations
The circumstances imposed significant time constraints on the
Plaintiff’s counsel. Prompt action was needed in order to address the
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Defendant’s continued use of the Plaintiff’s trademark to redirect traffic from
“dmarcian” domains to the Defendant’s DMARC Advisor website.
8. Experience, Reputation, and Ability of Counsel
Litigating this contempt issue required work to be performed by
experienced counsel, with familiarity with the areas of intellectual property
law, international law, contract law, and tort law.
9. Undesirability of the Case in the Legal Community
This factor is not applicable in this case.
10. Relationship between the Attorneys and Clients
Neither Ms. Duffy nor Mr. Dorey had a prior relationship with the
Plaintiff. Accordingly, this factor is not applicable here.
11. Fee Awards in Similar Cases
The Plaintiff cites cases within the Fourth Circuit wherein awards of
attorneys’ fees of $60,000 and approximately $70,000 were approved in
cases involving contempt motions. [See Doc. 89 at 22 (citing Norfolk S. Ry.
Co. v. Baltimore and Annapolis R.R. Co., No. 4:13-cv-01264, 2016 WL
702977, at *2 (D.S.C. Feb. 23, 2016); SunTiger Inc. v. Telebrands Advert.
Corp., No. 97-423-A, 2004 WL 3217731, at *8 (E.D. Va. Mar. 29, 2004))].
The award of fees in a contempt case, however, is heavily dependent upon
the nature of the contempt, the amount of work required to address the
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contemptuous behavior, and the amount of time required to litigate the
motion. As such, the fact that some courts have awarded fees in excess of
$60,000 does not weigh heavily in favor of awarding the full fee requested in
this case.
12. Amount Involved and Results Obtained
As noted by the Supreme Court, “‘the most critical factor’ in
determining the reasonableness of a fee award ‘is the degree of success
obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461
U.S. at 436). Where a plaintiff prevails on only some of the claims made,
the Court may adjust the number of hours downward. Rum Creek Coal, 31
F.3d at 174.
The Plaintiff asserted that the Defendant had violated the Preliminary
Injunction Order in four principal ways. [Doc. 89]. However, the Plaintiff
ultimately prevailed on only one of these theories, namely, that the
Defendant’s redirection of “dmarcian” domains to its DMARC Advisor
website violated paragraph (4) of the Preliminary Injunction. Reviewing the
billing records of the Plaintiff’s attorneys, the Court is unable to discern
precisely how much of their time was spent in litigating this sole successful
claim. Accordingly, in the exercise of its discretion, the Court will apply an
across-the-board reduction of the Plaintiff’s requested hours by 60% in order
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to account for the degree of success obtained by the Plaintiff in pursuing the
contempt motion.
After consideration of all the above factors, the Court concludes that
an overall reduction of the hours claimed by the Plaintiffs’ attorneys by 60%
is appropriate. Multiplying those reduced hours by the reasonable hourly
rates determined by the Court results in the following lodestar amount:
Pamela S. Duffy 48.4 hours x $330.00 = $15,972
Katherine W. Dandy 9.8 hours x $240.00 = 2,352
David A. Dorey 20.5 hours x $330.00 = 6,765
Tim Pecsenye .3 hours x $240.00 = 72
Jillian Taylor 2.2 hours x $240.00 = 528
TOTAL FEES $25,689
For the reasons stated herein, the Court finds and concludes that this
lodestar amount constitutes a reasonable attorneys’ fee in this matter.
B. Expenses
In addition to an award of attorneys’ fees, the Plaintiff seeks an award
of expenses for the following: travel-related costs for Ms. Duffy in the amount
of $567.39 [Doc. 85-2]; travel-related costs for Mr. Dorey in the amount of
$1,455.71 [Doc. 86]; expert witness fees in the amount of $6,798.30 [Doc.
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85-3]; and fees charged by attorney Mark Nebring in the amount of $2,048.00
[Doc. 100-1].
The Court finds that the attorneys’ claimed expenses for travel are
reasonable and should be awarded in full.
As for the claimed expert witness fees, the Plaintiff states that its
expert, Phillip Blazer Catzen, was hired to document the Defendant’s
ongoing violations, and that his work was necessary “given the Defendant’s
refusal to allow access to the websites.” [Doc. 89 at 10]. According to his
invoice, Mr. Catzen was primarily engaged in searching the Defendant’s
websites for references to the Plaintiff’s trademark. [See Doc. 49 at 9; see
also Doc. 85-3]. Mr. Catzen’s work was unrelated to the issue of domain
redirection, which was the sole ground on which this Court found contempt.
As such, the Court finds no basis for awarding the Plaintiff the fees it paid to
Mr. Catzen as part of this award.
Finally, it appears that the Plaintiff is seeking recovery of $2,048 paid
to attorney Mark Nebring for work performed in reviewing the case and
submitting an affidavit regarding the reasonableness of the hourly rates
charged by the Plaintiff’s attorneys.4 [Doc. 100-1]. The Plaintiff offers no
4 The Court notes that Mr. Nebring charges $640 per hour for his work, nearly double the
hourly rate deemed reasonable for the work performed by the Plaintiff’s counsel in this
case.
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explanation as to how these fees are compensable as expenses in this
proceeding. In the exercise of its discretion, the Court declines to award
these fees as expenses.
Accordingly, the Court will award the Plaintiff a total of $2,023.21 in
expenses.
O R D E R
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Attorneys’ Fees and Costs [Doc. 88] is GRANTED to the extent that the
Plaintiff is hereby awarded $25,689.00 in attorneys’ fees and $2,2023.21 in
expenses, for a total award of $27,712.21, related to litigating the matter of
the Defendant’s contempt.
IT IS FURTHER ORDERED that the Defendant shall pay to the Plaintiff
Three Hundred and Thirty Five Thousand Dollars ($335,000.00) as a
sanction for its contemptuous conduct as found in the Court’s August 11,
2021 Order.
IT IS SO ORDERED. Signed: June 9, 2022
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