Opinion
Civil Action 2:23-cv-03546-DCN
08-09-2024
ERIC BEAUMONT, Plaintiff, v. WALTER SCOTTY BRANCH, an individual; SHEA C. HARRELSON, an individual; AVANTE DIAGNOSTICS LLC, a Delaware entity; BIODXX INC., a Pennsylvania entity; INDEPENDENT CLINICAL LABORATORIES INC., a Florida entity; KOR LIFE SCIENCES LLC, a South Carolina entity; KORPATH HOLDINGS LLC, a South Carolina entity; MEDCOAST LLC, a South Carolina entity; SILVERPATH INC., a Pennsylvania entity; and VIKOR SCIENTIFIC LLC, a South Carolina entity, Defendants.
V.R. Bohman (Pro Hac Vice) Erin Gettel (Pro Hac Vice) SNELL & WILMER L.L.P. BURR & FORMAN LLP G. Wade Leach, III (Fed ID No. 13412) BURR & FORMAN LLP Attorneys for Plaintiff Eric Beaumont
V.R. Bohman (Pro Hac Vice) Erin Gettel (Pro Hac Vice) SNELL & WILMER L.L.P.
BURR & FORMAN LLP G. Wade Leach, III (Fed ID No. 13412) BURR & FORMAN LLP Attorneys for Plaintiff Eric Beaumont
DECLARATION OF ERIN M. GETTEL, ESQ. PURSUANT TO THE COURT'S APRIL 12, 2024 MINUTE ORDER
I, Erin M. Gettel, declare as follows:
1. I am an attorney with the law firm of Snell & Wilmer LLP. I am licensed to practice law in the State of Nevada and have been admitted pro hac vice in this case.
2. I am over 18 years old and if called to testify about the matters contained in this declaration, I could competently do so.
3. I make this declaration in support of the request for attorney's fees made in Mr. Beaumont's Motion to Compel Discovery Responses and to Amend Scheduling Order and pursuant to this Court's April 12 minute order directing Mr. Beaumont to provide the Court with an affidavit of attorney's fees.
ECF Nos. 36, 36-1.
4. On November 22, 2023, Mr. Beaumont served his first set of discovery requests on Mr. Branch, Ms. Harrelson, Avante, MedCoast, and Vikor.
ECF No. 36-1 Exhibit C (Requests for Admission); Exhibit D (Requests for Production); Exhibit E (Interrogatories).
5. On the December 22 response deadline, Defendants served their responses to the requests for admission but moved the Court for an extension through January 5, 2024, for the remaining discovery requests. Mr. Beaumont filed a notice of non-opposition, and the Court later granted the request.
ECF No. 29.
ECF Nos. 30, 32.
6. On the court-extended January 5 deadline, Defendants responded to Mr. Beaumont's RFPs and Interrogatories largely by asserting generalized boilerplate objections and then either outright refusing to answer, or only partially answering, most of Mr. Beaumont's requests.
ECF No. 36-1 Exhibit H (Branch Response to RFPs); Exhibit I (Harrelson Response to RFPs); Exhibit J (Avante Response to RFPs); Exhibit K (MedCoast Response to Interrogatories); Exhibit L (Vikor Response to RFPs).
ECF No. 36-1 Exhibit M (Branch Response to Interrogatories); Exhibit N (Harrelson Response to Interrogatories); Exhibit O (Avante Response to Interrogatories); Exhibit P (MedCoast Response to Interrogatories); Exhibit Q (Vikor Response to Interrogatories).
ECF No. 36-1 Exhibit S (January 26, 2024, Discovery Letter).
7. After a meet and confer, Defendants promised to revisit their objections and to provide supplemental responses before the February 14 deposition of Vikor's CFO Kelly Damiano.
ECF No. 36-1 Exhibit T (February 2, 2024, Discovery Letter).
8. Defendants did not supplement or amend their discovery responses by February 12 as promised, nor did they notify Mr. Beaumont's Counsel that they would not be doing so.
9. Mr. Beaumont's Counsel raised Defendants' outstanding discovery responses with Defense Counsel at the Damiano deposition on February 14, but Defense Counsel still did not provide an updated timeline or any additional information.
10. By February 28, 2024, Defendants still had not supplemented their discovery responses, provided an updated timeline for doing so, or in any way indicated that they still intended to do so.
11. Mr. Beaumont filed a Motion to Compel Discovery Responses and to Amend Scheduling Order asking this Court to (1) deem Defendants' objections to Mr. Beaumont's November 22, 2023, discovery requests waived; (2) order Defendants to supplement their responses and to provide verification for the previously served interrogatory responses within 14 days; (3) extend the deadlines in the scheduling order to account for Defendants' delay; and (4) order Defendants to pay Mr. Beaumont's reasonable expenses incurred in bringing the Motion, to be supported by the appropriate attorney declaration and documentation.
ECF Nos. 36, 36-1.
12. On March 6, this Court set a hearing on Mr. Beaumont's Motion to Compel for March 20.
ECF No. 38.
13. On March 12, this Court rescheduled the hearing on the Motion to Compel to April 11, which hearing was later converted to an in-person status check.
ECF No. 41.
14. In their March 13 response to the Motion to Compel, Defendants represented that they would provide their revised discovery responses by March 25, 2024-six weeks after their promised deadline to supplement, more than 11 weeks after the court-extended deadline, and more than 13 weeks after they were originally due.
ECF No. 43 at 2.
15. On March 25, Defendants once again failed to provide the promised revised responses and updated productions, producing only Defendants 1844-2139 and providing amended responses for MedCoast only.
16. On March 29, Defendants produced Avante1-45 and provided Avante's amended responses.
17. On April 2, Defendants produced Vikor 1-7997 and provided Vikor's and Ms. Harrelson's amended responses to interrogatories.
18. On April 4, Defendants provided Vikor's amended response to interrogatories along with Vikor 7998-8173, Korpath 1-84, and Silverpath 1-75.
19. On April 5, Defendants provided Vikor's amended RFP responses, Vikor 8174, Mr. Branch's amended response to interrogatories, and a privilege log and redaction index.
20. On April 10-the day before the status check-Defendants provided Mr. Branch and Ms. Harrelson's amended RFP responses.
21. At the April 11 hearing, Counsel for Mr. Beaumont advised that Defendants still had not provided the missing verifications for their original interrogatory responses and that Defendants' amended responses remained defective. The Court directed Defendants to provide verifications for their original interrogatory responses; Mr. Beaumont to give Defendants a list of outstanding requests by April 15; Defendants to respond by April 22; and the parties to then meet and confer on April 29. The Court also directed Counsel for Mr. Beaumont to provide the Court with an affidavit of attorney's fees.
ECF No. 46.
22. On April 15, Mr. Beaumont's Counsel sent Defense Counsel a letter explaining the outstanding discovery issues.
Exhibit A (April 15 Discovery Letter).
23. On April 22 Defense Counsel responded, conceding some issues but not others, and agreeing to provide second amended responses by May 3.
Exhibit B (April 22 Discovery Letter).
24. During the April 28 meet and confer, Defense Counsel promised to revisit the remaining issues outlined in Mr. Beaumont's Counsel's April 15 Discovery Letter and later, to cure those issues in the second amended responses to be served on May 3.
25. On May 3, the parties agreed to extend the May 3 deadline to May 6, an extension with which Mr. Beaumont's Counsel takes no issue and does not believe demonstrates any lack of diligence on Defendants' part given the circumstances.
Exhibit C (Beaumont v. Branch, et al., April 29, 2024, Meet and Confer Email Thread).
26. On May 6, Defendants provided Defendants' First Supplement to Initial Disclosures; second amended RFP responses for Mr. Branch, Ms. Harrelson, Avante, MedCoast, and Vikor; and second amended interrogatory responses for Mr. Branch, Ms. Harrelson, and Vikor. This production contains the first communications between Mr. Branch and Ms. Harrelson discussing payments to Mr. Beaumont as well as their internal communications with Vikor's CFO regarding Mr. Beaumont-crucial communications that Mr. Beaumont has been asking for since November 2023:
(Matter Omitted)
(Image Omitted)
27. During the April 28 meet and confer, Mr. Beaumont's Counsel stressed the curious lack of Defendants' internal communications regarding Mr. Beaumont and payments to him. Mr. Beaumont's Counsel also advised that they were working on compiling the attorney fee affidavit, provided Defendants' Counsel with a current fee estimate of $54,692.45, and invited Defendants to resolve the fee issue without further Court involvement. That invitation-to resolve the fee issue without Court involvement-was reiterated in the email summarizing the meet and confer.Defendants have not responded to that invitation in any way.
Id.
Id.
28. Accordingly, Mr. Beaumont submits this declaration of attorney's fees seeking attorney's fees in the amount of $68,443.50 and costs of $1,588.45, which fees and costs were reasonably and necessarily incurred in connection with litigating Defendants' deficient discovery responses and which would not have occurred had Defendants complied with their discovery obligations. Mr. Beaumont also seeks $6,702.50 in attorney's fees for the cost of submitting this declaration, for a total award of $76,734.45.
29. Snell & Wilmer LLP's and Burr & Forman LLP's monthly billing statements are attached as Exhibits D and E, respectively, and provide additional detail about the work performed. These invoices are maintained in the regular course of business and represent fees actually charged to and paid (or in the case of the April invoices, soon to be paid) by the Client, which further establishes their reasonableness. In addition, below are tables showing the requested fees broken down by timekeeper, rate, and hours across the five main tasks undertaken in connection with the Motion to Compel.
30. The time spent preparing for the first meet and confer on January 29, 2024, and related follow-up prior to Defendants' self-imposed February 12 deadline for supplementation is as follows:
Timekeeper
Rate
Hours
Fees
$635
3.8
$2,413
$460
11.6
$5,336
$450
7.4
$3,330
TOTAL
21.2
$11,079
Refers to V.R. Bohman, Esq.
Refers to Erin Michelle Gettel, Esq.
Refers to G. Wade Leach, Esq.
31. The time spent preparing the Motion to Compel and related planning and followup is below. In addition, Mr. Beaumont incurred $52.45 in costs for courtesy copies.
Timekeeper
Rate
Hours
Fees
VRB
$635
2.6
$1,651
EMG
$460
23.7
$10,902
GWL
$450
3.4
$1,530
$315
1.6
$504
$190
.3
$57
TOTAL
30.9
$14,644
Refers to Snell & Wilmer paralegal Lynse Ashcroft.
Refers to Burr & Forman paralegal Sarah Bullins.
32. The time spent preparing the Reply in Support of the Motion to Compel and related planning and follow-up is as follows:
Timekeeper
Rate
Hours
Fees
VRB
$635
8.7
$5,524.50
EMG
$460
16.7
$7,682
GWL
$450
2.9
$1,305
TOTAL
28.3
$14,511.50
33. The time spent preparing for and attending the April 11 hearing and the posthearing conferrals directed by the Court is as follows:
Timekeeper
Rate
Hours
Fees
VRB
$635
11.4
$7,239
EMG
$460
33.3
$15,318
GWL
$450
12
$5,400
LA
$315
.8
$252
TOTAL
57.8
$28,209
In addition, Mr. Beaumont incurred $1,422.90 in travel costs and related expenses for counsel to attend the in-person hearing on April 11, as well as $113.10 in scanning and printing expenses. It should be noted that, despite the importance of obtaining the outstanding discovery responses from Defendants, Attorney Bohman did not attend the hearing in an effort to reduce fees and costs.
34. Finally, the time spent preparing this fee declaration and redacting invoices after Defendants declined to resolve the fee issue short of additional Court action is as follows:
These entries appear on May invoices that will not be completed and billed to the Client until next month. We would be happy to provide the draft invoices if that is helpful.
Timekeeper
Rate
Time
Fees
VRB
$635
1.3
$825.50
EMG
$460
11.7
$5,382
GWL
$450
1.1
$495
TOTAL
13.5
$6,702.50
35. To assess the reasonableness of the requested attorney's fees, this Court compares the requested amount to the “lodestar” amount. Robinson v. Equifax Info Serv's., LLC, 560 F.3rd 235, 243 (4th Cir. 2019). The lodestar amount equals the reasonable hourly rate multiplied by hours reasonably expended. Id. (citing Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)). In making this determination, district courts are guided by the 12 factors set forth in Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978), though need not rigidly apply each factor. Below is a discussion of how the relevant factors apply here.
36. Time and labor expended. The detailed billing statements and above tables show that counsel's reported time is reasonable given the number of discovery requests at issue and the time required to address the many disputes and that this matter was staffed in an appropriate matter. I completed most of the work with the input and oversight of lead Attorney Bohman and local counsel Attorney Leach. Further, the time spent preparing this declaration and related documentation is reasonable in light of the amount of fees at stake and Defendants' lack of interest in settling the fee issue through less formal channels.
37. Novelty and Difficulty of Questions Raised. This was much more than a straightforward discovery dispute because it involved pervasive problems across multiple sets of discovery requests to different defendants. Counsel worked diligently to present the most significant and improper deficiencies to Defendants and this Court in a detailed yet efficient manner.
38. Skill Required. Given the large amount of money at stake and the complexity of the underlying claims and issues, Mr. Beaumont had to retain counsel with experience in complex commercial litigation. That skill is reflected by the quality of the Motion to Compel and related briefing and the results obtained.
39. Customary Fee for Like Work. Attorney Bohman's hourly rate of $635; my rate of $460; and Attorney Leach's rate of $450 are reasonable rates for like work by attorneys of like experience in this district and are the rates charged to and collected from the client. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (noting that, to determine whether a rate is reasonable, the court considers “prevailing market rates in the relevant community” as well as “the rate actually charged by the petitioning attorneys when it is shown that they collected those rates in the past from the client”). In 2024, Burr & Forman's hourly rates for associates in South Carolina ranged from $325-$450, while hourly rates for partners ranged from $420-$750 with respective averages of $372 and $598. Attorney Bohman and Attorney Leach's rates fall within these ranges. While my rate is slightly above Burr & Forman's associate range, the $10 difference is appropriate because I am a senior associate nearly nine years out of law school with extensive federal-court experience. I also handle the vast majority of the work in this case to reduce the time required by Attorney Bohman in an effort to reduce fees and costs overall. The requested rates are further warranted based on Counsel's experience, reputation, and ability. Similarly, the charged paralegal rates of $190-315 are reasonable and within the range of paralegal rates regularly charged by Burr & Forman in South Carolina ($190-350).
40. Experience, Reputation, and Ability of Attorneys. Burr & Forman is a premier Southeast, regional firm with over 350 attorneys in 20 offices. Snell & Wilmer is a premier law firm with more than 500 attorneys in 16 locations throughout the United States and in Mexico.
Attorney Bohman is a partner in Snell & Wilmer's Las Vegas and Salt Lake City offices. He is a trial and litigation attorney who serves clients in Nevada, Utah, and throughout the U.S. and is frequently sought out to handle “bet-the-company” litigation for his clients. Attorney Bohman graduated from Brigham Young University, J. Reuben Clark Law School magna cum laude (2013) and is licensed in Nevada and Utah. Before joining Snell & Wilmer, Attorney Bohman was a judicial law clerk to the Honorable Kent J. Dawson in the U.S. District Court for the District of Nevada.
I am an associate in Snell & Wilmer's Las Vegas office. I am a trial and litigation attorney in the firm's commercial litigation practice group. I graduated from the University of Nevada, William S. Boyd School of law cum laude (2015) and am licensed in Nevada. Before joining Snell & Wilmer, I practiced exclusively in federal court as an Assistant Federal Public Defender in the trial unit and before that, served as a judicial law clerk to the Honorable Jennifer A. Dorsey in the U.S. District Court for the District of Nevada.
Attorney Leach is an associate in Burr & Forman's Charlotte and Columbia offices. He is a trial and litigation attorney in the firm's general commercial litigation practice group. Attorney Leach graduated from the University of North Carolina School of Law with honors (2019) and is licensed in both North and South Carolina. Before joining Burr & Forman, Attorney Leach was a judicial law clerk to the Honorable Frank D. Whitney in the U.S. District Court for the Western District of North Carolina.
41. Amount in Controversy and Results Obtained. This is high-stakes litigation in which ownership, profit, and other interests in companies valued at tens if not hundreds of millions of dollars are at stake. Obtaining Defendants' discovery responses to several crucial requests, such as those targeting the EKRA misrepresentation, the cease payment, Defendants' financial condition (to determine payments due to Mr. Beaumont to date and that will be due in the future), and how Defendants calculated the payments made to Mr. Beaumont, was of paramount importance. Mr. Beaumont's efforts were successful as he finally is beginning to obtain the requested discovery. Notably, Mr. Beaumont did not receive the sole produced communication between Mr. Branch and Ms. Harrelson discussing the cease payment or their communications with Vikor's CFO regarding the same until May 6, 2024-six weeks after the deadline Defendants promised in their response to the Motion to Compel, 12 weeks after Defendants' previously promised deadline, more than 17 weeks after the court-extended deadline, and more than 19 weeks after these documents were originally due. Similarly, Vikor did not produce balance sheets, profit and loss statements, statements of cash flows, and general ledgers until April 4 and 5, 2024, despite Mr. Beaumont specifically requesting each of these items.
ECF No. 36-1 Ex. D, RFP 13 to Vikor.
42. Attorney Fee Awards in Similar Cases. As previously discussed, the hourly rates accord with rates reasonably charged in this district and reflect rates actually billed to and paid by the client. Further, these rates are within the range of rates that have been determined reasonable by courts in this district in complex cases. See e.g., Black v. Mantei & Assoc., Ltd., 2024 WL 1681314, *3 (D.S.C. Apr. 18, 2024) (Lewis, J.) (approving attorney rates ranging from $375-$700 per hour as within prevailing market rates in Columbia legal community in context of defendants' successful motion to remand putative class action).
43. The remaining Barber factors, preclusion of other employment opportunities; attorney's expectations at the outset of the litigation; time limitations imposed by the client or circumstances; undesirability of case within the legal community; and the nature and length of professional relationship are not particularly relevant here, but we would be happy to provide the Court with any additional information that would be helpful.
44. As demonstrated above, the relevant Barber factors confirm that expending 138.2 hours at the requested rates for a total of $68,443.50 in attorneys' fees is not only reasonable but necessary, as was the time and rate expended on this declaration given Defendants' refusal to even respond to Mr. Beaumont's invitation to resolve these fees without the Court's involvement.
45. For these reasons as well as well as those raised in Mr. Beaumont's Motion to Compel and supporting reply brief, this Court should award Mr. Beaumont $68,443.50 in attorney's fees and costs of $1,588.45 as these fees and costs were reasonably and necessarily incurred in connection with litigating Defendants' deficient discovery responses. This Court should also award Mr. Beaumont $6,702.50 in attorney's fees for the costs of preparing this fee application. Thus, this Court should award Mr. Beaumont a total of $76,734.45, payable jointly and severally by Defendants Branch, Harrelson, Avante, MedCoast, and Vikor within 30 days of the Court's order.
VERIFICATION
I declare under penalty of perjury under the law of the State of South Carolina that the foregoing is true and correct. This declaration is executed on May 13, 2024, at Las Vegas, Nevada.
(EXHIBIT A Omitted)
(EXHIBIT B Omitted)
(EXHIBIT C Omitted)
(EXHIBIT D Omitted)
(EXHIBIT E Omitted)