United States District Court, E.D. Pennsylvania
VIZANT TECHNOLOGIES, LLC, et al.
JULIE P. WHITCHURCH, et al.
February 13, 2017, the court found that defendant Julie P.
Whitchurch is in civil contempt for failure to comply with
the court's January 8, 2016 permanent injunction in favor
of Vizant Technologies, LLC, her former employer, and its
chief executive officer Joseph Bizzarro. The injunction
permanently enjoined Whitchurch from taking any action
whatsoever to cause or discourage any person or entity from
doing business with, investing in, or maintaining an
employment relationship with Vizant. (Doc. # 315). The Court
of Appeals had affirmed the injunction on January 13, 2017.
See Vizant Technologies, LLC v. Whitchurch, No.
16-1178 (3d Cir. Jan. 13, 2017). We imposed monetary civil
contempt sanctions upon Whitchurch until she purges herself
February 16, 2017, plaintiffs Vizant and Bizzarro filed a
motion seeking attorneys' fees and costs in connection
with preparation of their November 28, 2016 motion for an
Order to Show Cause (Doc. # 304), preparation for the
February 2, 2017 Show Cause Hearing, and attendance of the
February 2, 2017 Show Cause Hearing. Whitchurch did not
appear at the Show Cause Hearing and has not filed a response
to the plaintiffs' pending motion for attorneys' fees
successful in civil contempt proceedings, the complainant is
entitled to costs of investigating the violation of the
court's order, preparing for and conducting the contempt
proceeding, and attorneys' fees. See Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 447 (1911); see
also Robin Woods Inc. v. Woods, 28 F.3d 396, 400 (3d
Cir. 1994). The award of attorneys' fees places the
prevailing party in the position it would have been had the
contemnor complied with the court order. Robin Woods
Inc., 28 F.3d at 400; see also Halderman by
Halderman v. Pennhurst State School & Hosp., 49 F.3d
939, 941 (3d Cir. 1995). Plaintiffs are “prevailing
parties” for the purpose of attorneys' fees
“if they succeed on any significant issue in litigation
which achieves some of the benefit of the parties sought
bringing suit.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1982) (quoting Nadeau v. Helgemoe, 581
F.2d 275, 278-79 (1st Cir. 1978)).
and Bizzarro commenced this now long-enduring litigation
against Whitchurch on January 29, 2015. On January 8, 2016,
the court granted summary judgment on liability in favor of
Vizant and Bizzarro and against Whitchurch on claims of
defamation and tortious interference with existing and
prospective business relationships. (Doc. # 213). The court
also granted summary judgment on liability in favor of Vizant
and against Whitchurch on certain breach of contract claims,
as well as misappropriation of trade secrets under the
Delaware Uniform Trade Secrets Act, Del. Code Ann. tit. 6,
§§ 2001 et seq. (Doc. # 213). On the same day, the
court entered a permanent injunction against
Whitchurch. (Doc. # 214).
filed a Motion for an Order to Show Cause on November 28,
2016 for Whitchurch to show cause why she should not be held
in civil contempt for violation of the court's January 8,
2016 permanent injunction. (Doc. # 304). The court held a
Show Cause Hearing on February 2, 2017. The court found that
Whitchurch is in contempt of the permanent injunction and
imposed monetary civil contempt sanctions upon her until she
purges herself of contempt. (Doc. # 315). Thus, Vizant and
Bizzarro are “prevailing parties” in this action.
determine what fee is “reasonable” using a
lodestar calculation, which requires us to multiply
“the number of hours reasonably expended on this
litigation . . . by a reasonable hourly rate.”
Hensley, 461 U.S. at 433; see also United Auto.
Workers Local 259 Soc. Sec. Dep't v. Metro Auto
Ctr., 501 F.3d 283, 290 (3d Cir. 2007). This calculation
must exclude from consideration “hours that were not
reasonably expended.” Hensley, 461 U.S. at
433-34 (citation omitted). Significantly, we may
“reduce the number of hours claimed by the number of
hours ‘spent litigating claims on which the party did
not succeed and that were “distinct in all respects
from” claims on which the party did
succeed.'” Id. (quoting
Institutionalized Juveniles v. Sec'y of Pub.
Welfare, 758 F.2d 897, 919 (3d Cir. 1985)).
party seeking fees bears the burden of demonstrating that it
is entitled to an award and “should maintain billing
time records in a manner that will enable a reviewing court
to identify distinct claims.” Hensley, 461
U.S. at 437. The party should submit evidence of prevailing
market rates in the community for attorneys of equivalent
skill and experience in order to establish the reasonableness
of the fees. Blum v. Stenson, 465 U.S. 886, 896 n.
have calculated the lodestar amount by multiplying the number
of hours reasonably expended by counsel's reasonable
rate, “[t]here remain[s] other considerations that may
lead the district court to adjust the fee upward or
downward.” Hensley, 461 U.S. at 434. Vizant
and Bizzarro have sought no upward adjustment, and
Whitchurch, who has not responded to the motion, has not
requested a downward adjustment. We “cannot decrease a
fee award based on factors not raised at all by the adverse
party.” Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990) (quoting Bell v. United Princeton
Props., Inc., 884 F.2d 712, 720 (3d Cir. 1989)).
our task requires us to determine “the number of hours
reasonably expended” on the November 28, 2016 motion
for an Order to Show Cause, preparation for the February 2,
2017 Show Cause Hearing, and attendance of the February 2,
2017 Show Cause Hearing. See Hensley, 462 U.S. at
433. In determining “the number of hours reasonably
expended on the litigation, ” we exclude any
“excessive, redundant, or otherwise unnecessary”
hours as well as those “spent litigating claims on
which [Vizant and Bizzarro] did not succeed and that were
distinct in all respects from claims on which [Vizant and
Bizzarro] did succeed.” Hensley, 461 U.S. at
433-34; Rode, 892 F.2d at 1183 (citations omitted).
and Bizzarro ask us to award them $4, 320.99 in
attorneys' fees and costs. In support of their petition
for fees, they attach to their motion the invoices of Kang
Haggerty for work performed by three individuals: Edward
Kang,  “JEP” or “Jason E.
Powell, ” and “ML.” The invoices are detailed
“in a manner that . . . enable[s] [the court] to
identify distinct claims.” See Hensley, 461
U.S. at 437. For example, the invoices specify the type of
work performed, the issue that was the subject of the work,
and the individual who performed the work. Vizant and
Bizzarro's submission makes it possible for the court to
separate the work performed by Kang Haggerty for each of the
issues as to which Vizant and Bizzarro seeks fees.
only costs sought after by Vizant and Bizzarro is $1.99, the
cost of postage for mailing Whitchurch a copy of the November