BLOGS: Western District of Virginia Law Blog

Jason grew up in Lynchburg, Virginia, clerked for Judge Samuel G. Wilson in Roanoke, Virginia, and practices law in Charlottesville, Virginia.

Thursday, December 19, 2013, 10:06 AM

Judge Urbanski Awards Attorney Fees in Breach of Consent Injunction

Judge Urbanski recently issued an interesting opinion that highlights one of the difference between litigation in the Eastern District of Virginia and Western District of Virginia.

The case involved the defendant's breach of a non-disparagement clause in a consent injunction.  The plaintiff rented vacation cabins in the Shenandoah Valley and had previously sued defendant over certain online advertising for its vacation rentals.  That case ended with a consent injunction that required defendant to provide ads for plaintiff on its travel websites.  The injunction also included a non-disparagement clause, which plaintiff claimed defendant violated by posting an ad that advised users to beware of hidden fees and charges for plaintiff's rental property.  Judge Urbanski agreed that this ad violated the non-disparagement clause, but rejected other arguments (i.e., that defendant violated the consent order by not placing ads at the top of the webpage).

Judge Urbanski also awarded attorneys fees to plaintiff, but reduced the hourly billing rate from $650 to $350.  Plaintiff's lawyer, from Washington DC, stated that his normal billing rate was $720 per hour, which he reduced to $650 for this matter.  The court, however, stated "while an hourly rate of $650 (or $720) may be well and good for Washington, D.C., and lawsuits involving multinational corporations, it is simply an enormous rate for Harrisonburg, Virginia and and a case involving two local small businesses."  The court also reduced the fee request by one-third because plaintiff had only prevailed on one-third of its arguments in the motion to enforce.

Judge Urbanski's approach to attorney fees stands in stark contrast to some of the recent attorney fees that have been awarded by the Eastern District of Virginia.  As recently reported by Virginia Lawyers Weekly, "[a]ttorneys handling complex civil litigation in Northern Virginia are making use of a new benchmark to win higher fee awards from federal judges."

The case is Allstar Lodging Inc. v. Rookard, No. 5:13cv53 (W.D. Va. Nov. 12, 2013)

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Wednesday, December 18, 2013, 10:06 AM

Judge Wilson Dismisses Claim of Defectively Manufactured Tree Stand

In this Western District of Virginia products liability case, the plaintiff alleged he was injured in a fall from a defectively manufactured tree stand while hunting in Floyd County.  Plaintiff's expert claimed that the tree stand may have been defective because of inadvertent introduction of hydrogen into the steel during manufacturing, but both plaintiff's and defendant's experts agreed that there was not enough evidence for them to conclude with any confidence that this had occurred.  Plaintiff argued that his expert's opinion was not final and requested additional discovery, including discovery of third party manufacturers of the tree stand.  Judge Wilson, however, ruled that plaintiff already had adequate time for discovery and only recently asked for additional time to "finalize" expert opinions after defendant had deposed the expert and moved for summary judgment.  The Court stated: "Experts should not be moving targets whose opinions are constantly changing and being supplemented in order to overcome proper pretrial procedures."

The case is  Bambarger v. Ameristep Inc. No. 7:12cv280 (W.D. Va. Nov. 29, 2013) (Roanoke Division).

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