United States District Court, E.D. North Carolina, Western Division
UNITED STATES OF AMERICA ex rel. CICELY BECKER, Plaintiff/Relator,
SHAW UNIVERSITY, FREDDY NOVELC d/b/a NOVELO'S CONSTRUCTION COMPANY, and COMET CONSTRUCTION COMPANY, Defendants.
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on relator's petition for
attorney fees and costs against defendants Shaw University
and Freddy Novelo. Defendants have responded in opposition to
the motion, relator has replied and submitted a supplemental
declaration in support of his reply, and the matter is ripe
for ruling. For the reasons that follow, relator's motion
for attorney fees is ALLOWED IN PART as modified herein.
Relator is further ordered to SHOW CAUSE why her remaining
claims should not be dismissed.
filed this qui tarn action under seal on January 6,
2016. [DE 1]. The complaint alleges that defendant Shaw
University caused false claims regarding fraudulent or
improper bids for various construction projects to be
submitted. The bids were submitted by defendants Novelo and
Comet Construction (Novelo defendants) and were paid, at
least in part, by Department of Education Title III grant
funds despite the fact that the bids did not comply with
Title Ill's requirements. The complaint specifically
alleges false claims related to 2012 dormitory renovations,
2013 dormitory bathroom renovations, 2012 Leonard Hall
renovations, and 2012 Spaulding Gym renovations. The
complaint alleges violations of the False Claims Act, 31
U.S.C. §§ 3729(a)(1)(A)-(C)&(G) as well as
claims for fraud and fraud in the inducement and violations
of the North Carolina False Claims Act. N.C. Gen. Stat.
§ 1-605-, et seq.
being served with the complaint and receiving several
extensions of time within which to determine whether to
intervene, the United States elected to intervene in part and
declined to intervene in part on June 21, 2018. [DE 34]. The
United States settled the claim as to which it intervened
with defendants, and by order entered November 6, 2018, the
Court approved the settlement without relator's
opposition and unsealed the case. [DE 42]. The settlement
concerned "false claims for payment of certain
Department of Education Title III Grant Funds, specifically
$107, 000 paid to Freddy Novelo and Comet Construction around
November 8, 2012, for renovations at George Debnum, Fleming
Kee and Dimple Dewsom buildings ... based upon fabricated
bids to evade the competitive bid requirements as set forth
in the Complaint at paragraphs 60-71." [DE 37]. The
settlement was without prejudice to relator's decision to
pursue the remaining claims against defendants. Following the
approval of the settlement, a consent order for entry of
judgment was entered against the Novelo defendants on
November 28, 2018. [DE 44&46].
motion by relator, the Court extended the time for relator to
file an amended complaint following the government's
election to partially intervene and settle that claim. [DE
40]. Although the time had been extended to October 15, 2018,
relator filed her amended complaint on November 30, 2018. [DE
48]. Relator further sought issuance of summons for the
Novelo defendants and Shaw University on that date, and
summons were issued on December 3, 2018. [DE 47 & 49]. On
March 15, 2019, the clerk issued a notice to relator
regarding failure to make service on defendants. [DE 54]. To
date, relator has failed to respond to this notice. Defendant
Shaw University notes in its response to the motion for
attorney fees that it has not been served with the amended
complaint. [DE 61].
claims relator, in addition to recovering a share of the
proceeds or settlement of a qui tarn action,
"shall also receive an amount for reasonable expenses
which the court finds to have been necessarily incurred, plus
reasonable attorneys' fees and costs. . . . [and] [a]ll
such expenses, fees, and costs shall be awarded against the
defendant." 31 U.S.C. § 3730(d)(1).
calculate an award of attorneys fees, the court "must
first determine a lodestar figure by multiplying the number
of reasonable hours expended times a reasonable rate."
Robinson v. Equifax Info Servs., LLC, 560 F.3d 235,
243 (4th Cir. 2009). Factors to consider in determining the
reasonableness of the hours and rate include: (1) the time
and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the
attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation and ability of the attorneys; (10) the
"undesirability" of the case; (11) the nature and
length of the professional relationship with the client; and
(12) awards in similar cases. Hensley v. Eckerhart,
461 U.S. 424, 430 n.3 (quoting Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974));
see also Grissom v. The Mais Corp., 549 F.3d 313,
320 (4th Cir. 2008).
calculating the lodestar figure, a court subtracts fees for
hours spent on unsuccessful claims, and then awards some
percentage of the remaining amount dependent upon the degree
of the movant's success. Grisson, 549 F.3d at
321 (quoting Johnson v. City of Aiken, 278 F.3d 333,
337 (4th Cir. 2002)); U.S. ex rel. Harrison v.
Westinghouse Savannah River Co., 352 F.3d 908, 924 (4th
Cir. 2003). A court may in its discretion "attempt to
identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited
success." Hensley, 461 U.S. at 436-37. The most
important factor to a court's consideration is the degree
of success obtained. Id. at 436.
Timeliness of petition.
Novelo, Novelo's Construction, and Comet Construction
Company oppose any award of attorney fees as against them due
to the untimeliness of the request. Following the United
States' settlement as to the claims for which it
intervened, a consent order for entry of judgment against the
Novelo defendants was entered after a finding that there was
no just reason for delay. See Fed. R. Civ. P. 54(b).
Judgement as to the Novelo defendants was entered on November
28, 2018. A motion for attorney fees must be filed not later
than fourteen days from the entry of judgment. Id.
at 54(d)(2)(B)(i). As the instant motion for attorney fees
was filed on March 9, 2019, it is well-out of time as to the
Novelo defendants. Relator has not offered any basis upon
which to excuse her untimeliness, and her motion is
accordingly denied as to the Novelo defendants. See U.S.
ex rel. Pervez v. N. Shore-Long Island Jewish Health Sys.,
Inc., No. 06 CIV. 1114 DLC, 2011 WL 2683197, at *2
(S.D.N.Y. July 11, 2011).
Reasonableness of fee.
submits that an hourly rate of $375 is reasonable and is the
proper basis upon which to calculate the lodestar amount,
proffering affidavits of two attorneys in support of her
claim. See McAfee v. Boczar,738 F.3d 81, 91 (4th
Cir. 2013), as amended (Jan. 23, 2014). The Court
finds this rate to be inflated and unsupported by this
market, and that a reduction in the rate is appropriate.
Substituting an hourly rate of $300 for 176 hours of work
results in a lodestar amount of $52, 800. The Court finds
this represents a reasonable lodestar amount. In so finding
the Court has considered ...