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RLM Communications, Inc. v. Tuschen

United States District Court, Eastern District of North Carolina, Western Division

March 19, 2015



LOUISE W. FLANAGAN, United States District Judge

This matter comes before the court on defendants’ motion for attorney’s fees (DE 104). Plaintiff responded, and defendants replied. In this posture, the issues raised are ripe for ruling.[1]For the following reasons, the court denies defendants’ motion.


Plaintiff filed suit in state court on April 17, 2014, seeking injunctive relief and damages against defendant eScience and Technology Solutions, Inc., (“eSTS”) and defendant Amy E. Tuschen (“Tuschen”), who is an employee of eSTS and a former employee of plaintiff. Plaintiff asserted nine claims for relief based upon defendants’ allegedly improper use of confidential information and trade secrets: (1) breach of contract – covenant not to compete, (2) breach of contract – confidentiality agreement, (3) unfair and deceptive trade practices, (4) tortious interference with contractual relations, (5) misappropriation of trade secrets, (6) unjust enrichment, (7) civil conspiracy, (8) preliminary and permanent injunction, and (9) conversion.

The day after the complaint was filed, plaintiff obtained a temporary restraining order in state court. On April 25, 2014, defendants removed to this court on the basis of diversity jurisdiction. Defendants filed a motion to dismiss part of plaintiff’s claims on April 27, 2014, and plaintiff filed an emergency motion for temporary restraining order on April 28, 2014. By text order entered April 29, 2014, this court granted the temporary restraining order on the terms and conditions set forth in the state court order.

That same date, plaintiff filed a second emergency motion to temporary restraining order, preliminary injunction, and to expedite discovery (DE 17). The court held an administrative conference on April 30, 2014, and, based upon discussion at the conference, the court directed the parties to tender a proposed consent order regarding temporary injunctive relief and case scheduling. Upon notice of the parties’ respective positions, the court entered a preliminary injunction order on May 14, 2014, in part based upon consensus of the parties, and also based upon findings of fact and conclusions of law. Through scheduling order entered the same date, the court converted plaintiff’s emergency motion into a motion for permanent injunction, and converted defendants’ motion to dismiss into a motion for summary judgment to be supplemented upon further discovery and briefing as scheduled by the court.

Defendants alerted the court of a discovery dispute on May 27, 2014, and hearing was held before a magistrate judge partially resolving issues presented. Defendants filed a motion to compel on May 30, 2014, and an amended motion to compel on May 31, 2014 (DE 39, 42). Plaintiff filed a motion for protective order on June 13, 2014. The court stayed briefing on the dispositive motions in the case, and held motion hearing on June 16, 2014, whereupon the court granted the motion to compel and entered plaintiff’s proposed protective order. Memorializing rulings at the June 16, 2014, hearing, the court set a revised briefing schedule on dispositive motions, and directed plaintiff to show cause why it should not pay defendants’ costs incurred in connection with the motion to compel. Plaintiff filed a response to the show cause order on July 3, 2014, and the parties completed briefing on the dispositive motions on July 11, 2014, with amendments and supplements to exhibits thereto completed August 11, 2014.

On September 25, 2014, the court received a report from a mediator noting that the parties had conducted a mediated settlement conference on August 11, 2014, and the mediation resulted in impasse.

On November 7, 2014, the court entered an order granting defendants’ motion for summary judgment and denying plaintiff’s motion for permanent injunction. The court ordered plaintiff to pay defendants’ reasonable costs in the amount of $3, 068.50, associated with the motion to compel.

On November 10, 2010, defendants filed a motion for bill of costs, which was referred to the Clerk of Court for ruling. Defendants filed their motion for attorney’s fees on November 21, 2014. The court entered judgment on November 25, 2014.

Plaintiff noticed an appeal of the court’s judgment on December 11, 2014, which appeal remains pending. Plaintiff filed an initial response to the motion for attorney’s fees, that same date, suggesting that the court should stay consideration thereof pending outcome of the appeal. The court denied plaintiff’s request for stay on December 15, 2014, and directed plaintiff to file a response to the motion. Plaintiff responded to the motion on December 29, 2014, and defendants replied.

In their motion for attorney’s fees, updated through their reply, defendants request in the aggregate $57, 332.50 in attorney’s fees for time spent in this action since May 10, 2014, which is the day after an offer of settlement by defendants expired. (See DE 105-2).


Defendants seek attorney’s fees on the basis of the following five authorities: (1) Federal Rule of Civil Procedure 11, (2) 28 U.S.C. § 1927, (3) N.C. Gen. Stat. § 75-16.1, (4) N.C. Gen. Stat. § 66-154(d), and (5) the court’s ...

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