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1:06-cv-03597-MBS Date Filed 06/21/10 Entry Number 343 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

AIKEN DIVISION

Sara Olvera, Abner Johnson, Lillian D. )
Witt, Marion Williams, and Phyllis
Williams, individually and on
behalf of all others similarly situated,

) C/A No. 1:06-3597-MBS
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) OPINION AND ORDER
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Norfolk Southern Railway Company,

Plaintiffs,

vs.

Defendant.

The within class action arose out of personal injuries and property damages resulting from

a train derailment in Graniteville, South Carolina on January 6, 2005. Defendant Norfolk Southern

Railway Company admitted simple negligence. A class action settlement, which was comprised of

five subclasses, was approved by the court on June 26, 2007 (Entry 85).

This matter came before the court on motions for an order to show cause, preliminary, and

permanent injunction filed by Defendant on August 31, 2009 (Entries 274, 277, 278). Defendant

contended that the following individuals (collectively, “Plaintiffs”), all of whom are represented by

the same counsel, commenced actions in state court asserting identical claims to those that were

settled in the class action settlement: Mark Standridge, Deborah Morris, Michael Morris, and

Daylon Morris (Subclass 1); John Spence (Subclass 1); and Kathy Spence (Subclass 1). Plaintiffs

filed responses in opposition to Defendant’s motions on October 5, 2009 (Entries 285-287), as well

as supplemental responses on October 13, 2009 (Entries 291-293), to which Defendant filed replies

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on October 22, 2009 (Entry 294) and October 23, 2009 (Entries 295-296). Plaintiffs did not dispute

that they were members of Subclass 1. Plaintiffs asserted, however, that they are not bound by the

class action settlement because they opted out of Subclass 1.

The court held a hearing on January 11, 2010. At the hearing, and based upon its knowledge

of the class action settlement, the court noted that the opt-out deadline for the class settlement was

May 29, 2007. Putative class members were to notify Defendant of their decision to opt out through

notice to a claims administrator with an address in Graniteville, South Carolina. In this case, no

party supplied the court with any record to support that Plaintiffs opted out of Subclass 1. To the

contrary, the evidence supports a finding that Plaintiffs participated in the within class action and

received disbursements of $20,000 apiece. Accordingly, by orders filed February 9, 2010 (Entries

301, 302, 304), the court granted Defendant’s motions and further granted Defendant’s request for

attorneys’ fees associated with the motions.

Plaintiffs filed motions for reconsideration on February 19, 2010 (Entries 312-314), to which

Defendant filed memoranda in opposition on March 8, 2010 (Entries 318-320). In addition,

Defendant filed motions supporting their request for attorneys’ fees on February 22, 2010 (Entries

309-311). Plaintiffs filed a joint response in opposition to Defendant’s motions for attorney’s fees

on March 8, 2010 (Entry 317), to which Defendant filed a reply on March 15, 2010 (Entry 324).

The court held a second hearing on April 14, 2010. The court denied Plaintiffs’ motions for

reconsideration, concluding that Plaintiffs failed to meet their burden of establishing that they had

opted out of the class settlement. As noted, the court previously granted Defendant’s request for

attorney’s fees. The court took Defendants’ motions for attorney’s fees under advisement.

The issue at this stage of the proceedings is the court’s consideration of the factors set forth

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in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 236 n. 28 (4 Cir. 1978), as well as any exceptional

th

circumstances and the ability of the party to pay the fee. See Local Civil Rule 54.02, D.S.C. The

Barber factors include (1) the time and labor expended; (2) the novelty and difficulty of the questions

raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s

opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the

attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client

or circumstances; (8) the amount in controversy and the results obtained; (9) the experience,

reputation, and ability of the attorney; (10) the undesirability of the case within the legal community

in which the suit arose; (11) the nature and length of the professional relationship between attorney

and client; and (12) attorneys’ fees awards in similar cases. Id.

Defendant was represented by Gregory P. Sloan; Ronald K. Wray, II; Frances G. Zacher;

Laura E. Figueroa; and J. Kevin Couch. Messrs. Sloan and Wray are shareholders with Gallivan,

White & Boyd, P.A. Ms. Zacher, Ms. Figueroa, and Mr. Couch are associates. According to

Defendant, the attorneys’ time was spent preparing the motions, other supporting documents, and

in preparation for the hearings. Defendant contends that the preparation for the motions recently

before the court required analyzing each Plaintiff’s state court claims to determine whether they were

barred by the class action settlement and an investigation in to whether each Plaintiff had opted out

of the identified subclass. Defendant contends that counsel met with opposing counsel regarding

dismissal of the state court cases based on the evidence presented to the court; however, Plaintiffs’

counsel refused to dismiss the barred claims. Defendant argues that preparation of the motions for

order to show cause, preliminary and permanent injunction required knowledge and particular skills

by counsel familiar with the within class action and other litigation surrounding the derailment in

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Graniteville, South Carolina. Defendant further asserts that it was forced to divert resources from

other litigation to defend the state court actions that appear to have been grounded on claims

disposed of by the class action settlement. Defendant notes that the within litigation has been

ongoing since 2005 and counsel have been representing Defendant since that time with respect to

the voluminous state and federal court actions. Defendant further asserts that the attorney’s fees

should be assessed against Plaintiff’s counsel individually because of his conduct in filing actions

in state court in contravention of the express terms of the class action settlement agreement, and

without a reasonable basis for believing that Plaintiffs had opted out of the identified subclasses.

Defendant seeks attorney’s fees as follows:

Mark Standridge, Deborah Morris
Michael Morris, Daylon Morris

John Michael Spence

Kathy Spence

Total

$11,147.88

$ 3,031.32

$ 3,460.62

$17,639.82

The court concludes that the attorneys’ fees are reasonable under the Barber factors. The

court further agrees that attorneys’ fees should be borne by counsel for Plaintiffs. The court is at a

loss to explain Plaintiffs’ counsel’s obduracy in the face of information provided to him by

Defendant with respect to the state court claims barred by the class action settlement. However, the

court, having observed Plaintiff’s counsel and judged his credibility, and having listened to his

arguments in justification for his actions, finds that Plaintiffs’ counsel’s errors and omissions are the

result of inefficiency and lack of competence in dealing with an excessive number of clients, and not

the result of bad faith or willful misconduct. Because of these exceptional circumstances, Defendant

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shall have judgment against Plaintiff’s counsel, individually, for attorney’s fees in the total amount

of $17,639.82.

IT IS SO ORDERED.

Columbia, South Carolina

June 18, 2010

/s/ Margaret B. Seymour
United States District Judge

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