UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-2106

WESTERN INSULATION, LP, 

 Plaintiff - Appellee, 

 v. 

HAL MOORE; MELANIE MOORE, 

 Defendants - Appellants. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Chief 

District Judge. (3:05-cv-00602-JRS) 

Argued: December 4, 2009 Decided: January 22, 2010

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. 

Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Judge Michael joined. Judge Niemeyer wrote a 

separate opinion concurring in part and dissenting in part. 

ARGUED: John B. Simpson, MARTIN & RAYNOR, PC, Charlottesville, 

Virginia, for Appellants. Paul James Kennedy, LITTLER 

MENDELSON, Washington, D.C., for Appellee. ON BRIEF: Ronald S. 

Sofen, GIBBS, GIDEN, LOCHER, TURNER & SENET, LLP, Los Angeles, 

California, for Appellants. Stephen C. Tedesco, LITTLER 

MENDELSON, PC, San Francisco, California; Kathleen A. Goetzl, 

LITTLER MENDELSON, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
GREGORY, Circuit Judge. 

After extensive litigation on liability and damages for the 

defendants’ breach of their non-compete agreement concluded with 

a finding against the defendants, Hal and Melanie Moore, the 

District Court for the Eastern District of Virginia awarded 

Western Insulation, L.P. $218,705.90 in attorneys’ fees and 

costs. The district court found the award of attorneys’ fees 

proper because the non-compete agreement between the parties 

mandated the receipt of fees for actions to enforce a breach of 

its terms, and the court imposed the amount of fees it believed 

to be proportional to the relief obtained in the case. Because 

we find the contractual provision awarding attorneys’ fees 

enforceable and the amount of fees awarded reasonable as to each 

defendant, we affirm the district court’s order. 

I. 

We have previously discussed the factual background of the 

breach in this case in our opinions in Western Insulation, L.P 

v. Moore, No. 06-2028, 242 Fed. App’x 112 (4th Cir. 2007) 

(reversing the district court’s award of damages and attorneys’ 

fees and holding that the imposition of an injunction would not 

have harmed third parties), and Western Insulation, L.P. v. 

Moore, No. 08-1219, 316 Fed. App’x 291 (4th Cir. 2009) 

(affirming the district court’s finding of nominal damages and 

2 
imposition of an injunction as to Melanie Moore). Thus, here we 

describe only the facts which have bearing on the award and 

reasonableness of attorneys’ fees. 

In March 2001, Western, Inc. (“Western”) entered into an 

agreement with Hal Moore (“Hal”) to purchase his company, 

Western Insulation, for over $41 million. As part of that 

agreement, Hal and his wife Melanie Moore (“Melanie”) entered 

into an agreement not to compete with Western for a period of 

seven years following the completion of the transaction. Hal 

and Melanie did not, however, abide by their agreement. 

Contrary to the specific provisions of the agreement, Hal hired 

two former Western employees to work in his remaining business 

ventures. Additionally, Melanie acted as a surety for a $1.41 

million line of credit to one of her former employees who formed 

the company American Insulation, a competitor of Western. For 

her guarantee of the loan, Melanie was given the right to buy up 

to ninety percent of American Insulation for $9,000 at the end 

of her non-compete period. Melanie also signed a second surety 

agreement for another former employee who formed Empire 

Insulation, also a competitor of Western. 

Because of these breaches of the non-compete agreement, 

Western filed suit, and at the conclusion of a three-day bench 

trial, the district court found that both defendants had 

breached their covenants not to compete, among other violations, 

3 
and awarded $943,659 in damages and $361,660 in attorneys’ fees. 

On appeal, however, we held that there was no basis for the 

district court to award damages for the breaches because the 

plaintiff had not shown any compensable harm. We thus vacated 

the district court’s orders as to both damages and attorney’s 

fees. Western Insulation, 242 Fed. App’x at 125. However, this 

Court did find that the plaintiff had established that Melanie 

had breached her covenant not to compete and Hal had breached 

his non-solicitation agreement, id. at 117-19, and the district 

court erred in denying the plaintiff an injunction against 

Melanie, id. at 124-25. 

On remand, the plaintiff requested that, instead of 

compensatory damages, the court impose a permanent injunction 

against Melanie to prevent her from competing with Western and 

award nominal damages for the breaches of contract. The 

district court did so, finding a permanent injunction proper as 

to Melanie and awarding $100 in nominal damages from each 

defendant for the breaches of contract. This Court on appeal 

affirmed the result in its entirety. Western Insulation, 316 

Fed. App’x at 300. 

In a separate opinion, the district court again awarded 

attorneys’ fees to the plaintiff: $165,414.83 from Melanie and 

$41,606.46 from Hal. The district court discussed each of the 

twelve Kimbrell’s factors and determined that the award of a 

4 
permanent injunction as to Melanie and the finding of a breach 

of the contract by both parties entitled the plaintiff to some 

of its attorneys’ fees. See Barber v. Kimbrell’s, Inc., 577 

F.2d 216, 226 n.28 (4th Cir. 1978). Western claimed that it 

spent $584,380.28 in attorneys’ fees litigating the case in 

Virginia.1 In calculating the lodestar amount of fees for the 

case, the court broke the litigation fees down into the amount 

spent litigating each part of the case: trial, appeal and 

remand. Of the $348,365 spent litigating the case on the 

merits, the court awarded one quarter of the fees against 

Melanie, because it found half of the plaintiff’s goal had been 

realized: an award of damages against each defendant. Of the 

$154,098 in fees spent to appeal the judgment to the Fourth 

Circuit in the first instance, the court awarded half the fees, 

split evenly between Hal and Melanie, because this Court had 

ruled in favor of injunctive relief and found breaches of the 

agreement. Finally, of the $55,092.28 spent to litigate the 

case on remand, the court again awarded half the fees, for which 

only Melanie was responsible, because the plaintiff obtained the 

remedy of a permanent injunction against Melanie and nominal 

 1

 The district court earlier did not allow the plaintiff to 

collect fees from the original action brought in California. 

That case was voluntarily dismissed by the plaintiff and then 

re-filed in Virginia to comply with a contractual provision 

requiring that any action to enforce the agreement be brought in 

Virginia. 

5 
damages. The court increased the lodestar amount by eight 

percent given the complexity of the case and arrived at the 

total fee award of $270,021.29. This timely appeal followed 

concerning solely the award of attorneys’ fees. 

II. 

This Court reviews the district court’s decision to award 

attorneys’ fees under an abuse of discretion standard. 

McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998) 

(citing Colonial Williamsburg Found. v. Kittinger Co., 38 F.3d 

133, 138 (4th Cir. 1994)). The Moores present two issues upon 

appeal: whether attorneys’ fees were lawfully awarded, and if 

so whether the amount of fees was reasonable in light of the 

relief achieved against each defendant. We address each issue 

in turn. 

A. 

In the course of his briefing, Hal argued that there was no 

basis upon which the court could award fees against him as 

Western had only been awarded nominal damages from him.2 At oral 

argument, however, counsel for the Moores stated they did not 

contest the imposition of fees, only the reasonableness of the 

 2

 Melanie did not contest the fact that attorneys’ fees 

could be awarded against her, only the reasonableness of the 

award. 

6 
amount awarded. Nevertheless, we briefly describe the basis for 

awarding fees.

Hal’s argument relies upon this Court’s decision in Mercer 

v. Duke University, 401 F.3d 199 (4th Cir. 2005), and the 

Supreme Court’s ruling in Farrar v. Hobby, 506 U.S. 103 (1992). 

Both of those cases held that when only nominal damages are 

awarded, attorneys’ fees are not generally available. Mercer, 

401 F.3d at 203 (quoting Farrar, 506 U.S. at 115). The Courts’ 

view in those cases was that when the plaintiff fails to prove 

an essential element of damages—that any are warranted—the 

usual award is no fee at all. Farrar, 506 U.S. at 115. To 

determine whether a nominal damages case is the exceptional case 

meriting fees, the court must apply a three factor test. First, 

and most importantly, the court must compare the relief sought 

and the relief obtained. Mercer, 401 F.3d at 204. Second, the 

court evaluates the “significance of the legal issue on which 

the plaintiff prevailed.” Id. at 206 (quoting Farrar, 506 U.S. 

at 122.) Finally, the court determines whether the litigation 

served a public purpose beyond the dispute between the parties. 

Id. at 207. 

However, as argued by Western, there is a fundamental 

difference between this case and Mercer and Farrar: the source 

of the right to attorneys’ fees. In the two cases cited by Hal, 

the plaintiff’s entitlement to fees was a result of 42 U.S.C. 

7 
Section 1988, which gives the district court discretion to 

decide whether the plaintiff is entitled to fees in certain 

civil rights actions. In the language of Section 1988, the 

district court “may allow” recovery of fees. As such, any 

recovery of fees is plainly discretionary. This Court 

recognized in Mercer that the statute at hand merely made the 

plaintiff eligible for, not entitled to fees. 401 F.3d at 203. 

For this reason, the Moores’ reliance on Mercer in their brief 

and at oral argument is misplaced. While it is true that the 

search for reasonableness in a fee award writ large is similar 

both here and in Mercer, the entitlement to fees here has 

nothing to do with the congressional policy of awarding fees in 

some civil rights actions. 

By contrast, the source of Western’s entitlement to fees in 

this case is the agreement itself, which the Moores breached. 

Paragraph Five of the Moores’ non-compete agreement with Western 

provides that “in any action in law or in equity . . . to 

enforce this Agreement, the prevailing party in such action 

shall be entitled to reasonable attorneys’ fees, costs, and 

necessary disbursements . . . .” J.A. 299 (emphasis added).3 As 

this case is a diversity action based on state contract law, the 

contract, including its provisions on attorneys’ fees, is to be 

 3

 All citations to “J.A. __” refer to the Joint Appendix 

provided by the parties in this case. 

8 
interpreted using state law. The Virginia Supreme Court has 

defined “prevailing party” for fees and costs purposes broadly 

as the party in whose favor the judgment is entered in the case. 

Richmond v. City of Henrico, 41 S.E.2d 35, 41 (Va. 1947). This 

definition of prevailing party certainly includes the party for 

whom judgment is entered in the form of nominal damages. 

Further, in Ulloa v. QSP, the Virginia Supreme Court held that 

the trial court properly awarded attorneys’ fees to QSP for its 

breach of contract claim against Ulloa, per a contractual 

provision awarding fees, even though the jury, after finding 

that Ulloa breached the contract, declined to award any damages 

for the breach. 624 S.E.2d 43, 49 (Va. 2006). Noting that 

“parties are free to draft and adopt contractual provisions 

shifting the responsibility for attorneys’ fees to the losing 

party in a contract dispute,” the court upheld the fee award for 

the breach of contract claim. Id. (citing Mullins v. Richlands 

Nat’l Bank, 403 S.E.2d 334, 335 (Va. 1991)). 

This case therefore appears to be controlled by Virginia 

law allowing the award of attorneys’ fees to a prevailing party, 

broadly defined, when those fees are mandated by contractual 

provision between the parties. There is no reason why this 

provision in the contract should not be enforced against both 

Melanie and Hal. The question then is whether those fees 

awarded were reasonable, an issue to which we now turn. 

9 
B. 

The central argument Hal and Melanie make upon appeal is 

that even if the award of fees was proper, it was unreasonable. 

Hal argues that requiring him to pay $41,606.46 in fees when 

only $100 in nominal damages was assessed against him is 

presumptively unreasonable. Melanie argues that the district 

court incorrectly awarded “virtually” the same amount of 

attorneys’ fees against her when the plaintiff received an 

injunction and nominal damages as it did when the plaintiff had 

received over a $1 million judgment.4 This is an error, she 

argues, because the district court incorrectly valued the 

issuance of an injunction and the recovery of significant 

compensatory damages as equally important to the plaintiff and 

splitting the fees equally between claims was not proper. For 

the reasons enumerated below, we find both of these arguments 

unavailing. 

In reviewing a fee award, this Court gives substantial 

deference to the district court which tried the case because of 

that court’s “intimate knowledge of the efforts expended and the 

value of the services rendered.” Kimbrell’s, 577 F.2d at 226. 

 4

 In its first opinion awarding fees in this case, the 

district court did not mention how the fees were to be divided, 

presumably because the fees were awarded after the court found 

that the defendants violated the non-compete agreement jointly. 

Melanie calculates her half of the fee award in the first 

instance to be $186,672.29. 

10 
Even if awarding fees is mandated by a contractual provision, 

the amount awarded must still be reasonable. Mullins, 403 

S.E.2d at 335. To determine the reasonableness of an award, 

this Court has held that a district court must make “detailed 

findings of fact with regard to the factors considered.” 

Kimbrell’s, 577 F.2d at 226. These factors must include “the 

time consumed, the effort expended, the nature of the services 

rendered, and other attending circumstances.”5 Mullins, 403 

S.E.2d at 335 (citing Beale v. King, 132 S.E.2d 476, 478 (Va. 

1963)). From its consideration of those factors, the court 

should determine how many hours were reasonably required for the 

litigation and then calculate the lodestar amount using an 

hourly rate. Miller Oil, 134 F.3d at 640. The lodestar rate 

may then be adjusted for the particular factors and difficulties 

of the case at hand. 

 5

 The factors suggested by this Court for the district court 

to consider are: “(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.” Kimbrell’s, 577 F.2d at 226 

n.28. 

11 
The district court in this case explained its rationale for 

awarding fees against Hal and Melanie at great length, 

discussing each of the twelve factors enunciated by the court in 

Kimbrell’s. See supra n.5. The most salient factor for the 

district court was the complexity of the case given the number 

of motions for summary judgment, extensive discovery litigation, 

and bicoastal nature of the suit. Additionally, even though 

Western “obtained only one meaningful form of relief—an 

injunction against Melanie,” the court found the issues so 

intertwined that it was impossible to view the work done to 

achieve the injunction as separable from the rest of the 

litigation. J.A. 335. The Supreme Court held in Hensley v. 

Eckerhart, that when a suit involves several claims that have a 

core of related facts, division of hours between claims can be 

an exercise in futility. 461 U.S. 424, 434-35 (1983). 

Therefore, the “district court should focus on the significance 

of the overall relief obtained by the plaintiff in relation to 

the hours reasonably expended on the litigation.” Id. at 434. 

Additionally, this Court has held that a district court 

evaluating the degree of success on the merits between 

successful and unsuccessful claims should not look to the 

motives of the plaintiff as guidance, meaning the court should 

not attempt to determine what the plaintiff would have thought 

more important. Mercer, 401 F.3d at 205. The comparison should 

12 
be with the relief “sought” not the relief “most important” to 

the plaintiff. Id. (emphasis added). The court must therefore 

view the entirety of the suit objectively. 

In this case, the plaintiff sought both damages and an 

injunction in his original complaint against the Moores. 

Concerning an injunction, the plaintiff sought three types of 

preliminary and permanent injunction: to prevent further unfair 

competition, contractual breaches, and misappropriation of trade 

secrets. Western also sought compensatory damages at the amount 

proved at trial. The complaint also, of course, sought a 

finding of a breach in order to receive either remedy. 

At the conclusion of the liability and damages portion of 

the proceedings before the district court, the plaintiff 

received nominal damages and an injunction. Though it was not 

all the relief sought in the complaint, Western certainly was 

the prevailing party under Virginia law. It cannot be said from 

the face of the complaint or the remedy achieved, therefore, 

that injunctive relief was not an important remedy. 

Additionally, while no compensable damages were awarded, the 

suit did result in a finding of liability. Valuing the damages 

in unfair competition cases can be extremely difficult. See

PADCO Advisors, Inc. v. Omdahl, 179 F. Supp. 2d 600, 612 (D. Md. 

2002) (“It is for this reason that courts have routinely 

enforced covenants not to compete, as it is nearly impossible to 

13 
quantify the amount of damage caused when former employees work 

for direct competitors. In order to protect an employer’s 

business interests, such as a loss of clients and good will, 

covenants not to compete that require specific performance are 

enforceable.”). Thus, the achievement of a permanent injunction 

in an unfair competition case is not negligible. In fact, it is 

a significant result in that it enforces the original agreement 

between the parties. 

Melanie attempts to turn precedent on its head by advancing 

an argument which evaluates the importance of each kind of 

relief. This is plainly erroneous where we have stated that the 

relief is to be viewed objectively and where district courts 

routinely grant permanent injunctions in non-competition cases. 

Viewing this case objectively, the plaintiff achieved 

significant relief. 

Given the relief achieved against each defendant, the court 

then calculated the lodestar amount for each defendant 

individually. As regards Hal, the court awarded one fourth of 

the amount of fees Western incurred when appealing the case to 

the Fourth Circuit, $41,606.46 of $154,098 after the eight 

percent lodestar adjustment.6 Hal was not responsible for any of 

 6

 The eight percent adjustment occurred because the court 

felt the lodestar amount should be increased slightly given the 

length and complexity of the case. 

14 
the fees for litigation before the district court at trial or on 

remand. The district court found the award of fees for the 

litigation before the Fourth Circuit particularly proper because 

this Court held that Hal had violated his agreement not to 

compete, constituting a final judgment on the issue of Hal’s 

breach. We find it was not an abuse of discretion for the 

district court to order Hal to pay one-quarter of the fees for 

the appeal which found both Hal and Melanie at fault. The fact 

that Hal was adjudged in violation of his non-compete agreement, 

even though only nominal damages were awarded, made Western a 

prevailing party against him and entitled the plaintiff to fees. 

Thus, the district court was reasonable in awarding a select 

portion of the fees to Hal when the fees concerned the part of 

the litigation where his fault was determined. 

As regards Melanie, the district court ordered her to pay 

one fourth of the fees incurred to try the case, one fourth 

incurred to litigate the case before the Fourth Circuit, and one 

half incurred to litigate the case on remand, a total of 

$174,750.81 after the lodestar adjustment. The court’s logic 

was that the plaintiff had achieved half of the relief sought at 

trial (damages), half sought on appeal (injunction and finding 

of breach), and half on remand (permanent injunction). This 

division of fees was certainly not an abuse of discretion when 

Western achieved substantial relief, though not all of the 

15 
relief sought, such that an award of all fees was not proper. 

In the aggregate, the fee award from Melanie cannot be said to 

be excessive when the plaintiff spent $557,555.30 litigating the 

case to a successful conclusion. Therefore, the district court 

did not err in the fee award from Melanie. 

III. 

This Court therefore affirms the decision of the district 

court below. 

AFFIRMED

16 
NIEMEYER, Circuit Judge, concurring in part and dissenting in 

part: 

After nearly four years of litigation, both Hal Moore and 

Melanie Moore were found to have breached their non-compete 

agreements with Western Insulation, LP, and each was ordered to 

pay $100 in nominal damages. In addition, Western obtained an 

injunction against Melanie. 

Each non-compete agreement provided that the “prevailing 

party” in an action to enforce it “shall be entitled to 

reasonable attorneys’ fees,” and the district court ordered Hal 

to pay $41,606.46 in attorneys fees and Melanie to pay 

$165,414.83. The court reasoned that Hal should pay one-fourth 

of the fees that Western incurred during an earlier appeal to 

our court and that Melanie should pay: one-fourth of the fees 

that Western incurred to try the case; one-fourth of the fees 

that Western incurred during the first appeal; and one-half of 

the fees Western incurred on remand. The district court also 

included in the amounts assessed against both Hal and Melanie an 

8% enhancement because the case was “lengthy and complex.” 

The majority opinion affirms the attorneys fee awards, 

finding them to be reasonable. 

I concur in the majority’s opinion to the extent that it 

affirms the base award (without the 8% enhancement) assessed 

against Melanie. But I conclude that the assessment of $41,606 

17 
against Hal is excessive, given that Western recovered only $100 

in nominal damages from him. I also conclude that the 8% 

enhancement is an abuse of discretion. Thus, I would reduce the 

assessment against Melanie to $153,161.88, and I would vacate 

the assessment against Hal and remand for the district court to 

determine a reasonable amount of attorneys fees for Hal to pay 

in light of Western’s limited victory against him. 

To begin, I agree with the majority that because Western’s 

claim to attorneys fees stems from a contract that specified it 

was to be interpreted and enforced in accordance with Virginia 

law, Virginia law governs the award of fees in this case. 

Additionally, I agree that under Virginia law, Western is the 

“prevailing party” and is accordingly entitled to attorneys fees 

from the Moores pursuant to the parties’ contract. But Western 

is entitled to only reasonable attorneys fees. With respect to 

the assessment against Hal, the question thus becomes what fee 

is reasonable when the plaintiff’s only recovery was nominal 

damages. 

The Supreme Court has addressed this issue, noting 

generally that “‘the most critical factor’ in determining the 

reasonableness of a fee award ‘is the degree of success 

obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting

Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). Indeed, the 

Court has specifically noted that “[w]hen a plaintiff recovers 

18 
only nominal damages because of his failure to prove an 

essential element of his claim for monetary relief, the only 

reasonable fee is usually no fee at all.” Id. at 115. Although 

these pronouncements of the Supreme Court came in the context of 

reviewing fees awarded pursuant to 42 U.S.C. § 1988, the 

principles nonetheless provide guidance here and strongly 

suggest that it is unreasonable to order Hal, from whom the 

plaintiff has only recovered nominal damages of $100, to pay 

$41,606 in attorneys fees. 

Similarly, our precedents demonstrate that when a plaintiff 

is entitled to reasonable attorneys fees, the district court 

must account for the plaintiff’s limited success in calculating 

the fee, “examin[ing] the size of the proposed attorney’s fee 

. . . award in comparison with the total damage award.” 

McDonnell v. Miller Oil Co., 134 F.3d 638, 641 (4th Cir. 1998) 

(internal quotation marks and citation omitted) (vacating 

district court’s award of nearly $20,000 in fees pursuant to a 

mandatory fee-shifting statutory provision to a plaintiff who 

otherwise recovered only nominal damages); see also Carroll v. 

Wolpoff & Abramson, 53 F.3d 626, 629-31 (4th Cir. 1995) 

(affirming the district court’s award of $500 in attorneys fees 

where plaintiff obtained only $50 in damages). 

Most importantly, the Supreme Court of Virginia has held 

that a reasonable fee should reflect “the results obtained” by 

19 
the prevailing party. Chawla v. BurgerBusters, Inc., 499 S.E.2d 

829, 833 (Va. 1998). The majority opinion correctly describes 

Ulloa v. QSP, Inc., 624 S.E.2d 43, 49 (Va. 2006), as holding 

that a plaintiff who established that the defendant breached the 

parties’ contract but who recovered no monetary damages for the 

claim was nonetheless entitled to attorneys fees pursuant to a 

contractual provision. But the court in that case ultimately 

reversed the trial court’s substantial award of attorneys fees 

and remanded so that the trial court could reconsider the 

amount, noting that the plaintiff’s degree of success was a 

significant consideration in evaluating the reasonableness of 

the award and that “the results obtained by QSP in its 

litigation against Ulloa can be characterized, at best, as 

marginally successful.” Id. at 50. 

As in Ulloa, we should in this case remand so that the 

district court can reconsider the amount of attorneys fees in 

light of Western’s Pyrrhic victory against Hal.1 

 1

 Interestingly, the district court at first recognized that 

any fee award imposed upon Hal must reflect Western’s failure to 

recover any meaningful form of relief from him, observing that 

“[t]he fact that Western obtained very little relief against Hal 

suggests that an award of fees against him is not warranted.” 

J.A. 334. Despite this acknowledgment, the district court 

imposed a substantial award against Hal. In my view, it is 

necessary to remand so that the district court can simply act 

upon its earlier recognition that the fee award must bear some 

relation to the relief recovered. 

20 
The majority opinion, in contrast, finds that the district 

court ordered Hal to pay a reasonable amount of attorneys fees, 

approvingly noting that the district court found it appropriate 

to require Hal to pay one-fourth of the fees Western incurred in 

the appeal before us “because this Court held that Hal had 

violated his agreement not to compete, constituting a final 

judgment on the issue of Hal’s breach.” Ante at 15. Yet, our 

declaration of Hal’s fault during the earlier appeal was not the 

primary rationale provided by the district court for its 

decision to order Hal to pay one-fourth of Western’s fees for 

that appeal. Instead, the district court purported to justify 

the award by noting that “the Fourth Circuit ruled in Western’s 

favor on the issue of injunctive relief with respect to both 

defendants.”2 J.A. 339; see id. (“Since the Fourth Circuit’s 

 2

 The district court’s reliance on this court’s ruling on 

injunctive relief in the first appeal also demonstrates the 

unreasonableness of the fee award. In Western Insulation, L.P. 

v. Moore, 242 F. App’x 112, 124-25 (4th Cir. 2007), the court 

did not hold or even suggest that Western was entitled to 

injunctive relief against Hal; it merely “reverse[d] the ruling 

of the district court that injunctive relief should not be 

awarded because the relief requested would impact third parties 

not before the court” and “remand[ed] to the district court to 

determine in the first instance whether to award such relief,” 

expressing “no opinion on whether any particular form of 

injunctive relief –- or, indeed, any injunctive relief at all -– 

would be appropriate.” I would accordingly hold that the 

district court abused its discretion by basing the award against 

Hal solely on fees spent obtaining the Fourth Circuit’s reversal 

of the district court’s denial of injunctive relief, when the 

(Continued) 

21 
decision reversing the Court’s order on the issue of injunctive 

relief affected both Hal and Melanie, they will share the burden 

of paying Western for the cost of litigating the case before the 

Fourth Circuit”). Indeed, there was good reason for the 

district court not to have focused on our finding that Hal had 

breached the agreement in making its fee calculation. While we 

did describe as a breach of contract Hal’s hiring of two former 

Western employees, the issue was not disputed in the appeal 

before us. See Western Insulation, L.P. v. Moore, 242 F. App’x 

112, 118 n.5 (4th Cir. 2007) (“The district court found that 

Hal’s hiring of these employees constituted a breach of his NonCompete but that Western failed to prove any damages therefrom. 

The Moores do not dispute that these hirings constituted 

breaches, and Western does not challenge the determination that 

it failed to prove any damages therefrom”). 

Therefore, in this case, I cannot agree that it was 

reasonable for the district court to have ordered Hal to pay 

$41,606.46 in attorneys fees because that was a portion of the 

fees incurred at the stage “of the litigation where his fault 

was determined.” Ante at 15. 

 

district court on remand again refused to order injunctive 

relief against Hal. 

22 
23 

With respect to the 8% enhancement of the fee award based 

on the case’s length and complexity, our court and the Supreme 

Court have recognized that “as a general rule, the novelty and 

complexity of a lawsuit will be reflected in the number of 

billable hours” and that “‘[n]either complexity nor novelty of 

the issues, therefore, is an appropriate factor in determining 

whether to increase the basic fee award.’” Daly v. Hill, 790 

F.2d 1071, 1078 (4th Cir. 1986) (quoting Blum v. Stenson, 465 

U.S. 886, 898–99 (1984)). I would, accordingly, vacate the 8% 

enhancement of Western’s fee award against Melanie, reducing the 

award assessed against her from $165,414.83 to $153,161.88, and 

direct that such an enhancement not be considered by the 

district court in determining a reasonable attorneys fee award 

in Western’s favor against Hal.