These matters are before the court! on the Plaintiffs’ Motion for Attorney’s Fees and Nontaxable Costs [DE 156], Defendants’ Motion for Disallowance of Costs [DE 161], and Plaintiffs’ Motion for Prejudgment Interest [DE 164]. On November 30, 2020, the Honorable Malcom J. Howard issued a dispositive order and judgment in this case, which, in addition to other previously issued dispositive orders, are currently before the Fourth Circuit Court of Appeals. See Notices of Appeal, DE 159, 166.

I. Jurisdiction to Address Post-Trial Motions

Before addressing the merits of the motions, the court must satisfy itself of its jurisdiction to do so. Typically, the “filing of a notice of appeal transfers jurisdiction over all questions presented in the appeal from the district court to the court of appeals.” United States v. Johnson,

1 This case was reassigned to this court on January 20, 2021.

No. 1:12-CV-1349, 2015 WL 8346676, at *2 (M.D.N.C. Dec. ^[8], 2015) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). The present motions seeking awards of attorney’s fees and/or costs are “ancillary” or “collateral” matters that may be adjudicated during the pendency of the parties’ appeals. See id. (“The award of costs and attorneys’ fees have generally been recognized as collateral issues appropriate for resolution by the trial court when an appeal has been taken.”) (citing Buchanan v. Stanships, Inc., 485 U.S. 265, 268 (1988) and Langham-Hill Petroleum, Inc. v. S. Fuels Co., 813 F.2d 1327, 1331 (4th Cir. 1987)).

But, with respect to Plaintiffs’ second motion, “[p]re-judgment interest is considered to be part of the merits of a court’s decision, and so a motion requesting such interest is properly classified as a Rule 59(e) motion to alter or amend a judgment.” Dotson v. Pfizer, Inc., 558 F.3d 284, 302 n.9 (4th Cir. 2009) (citing Osterneck v. Ernst & Whinney, 489 U.S. 169, 176-77 & n.3 (1989)). The Supreme Court has affirmed that this classification applies to all prejudgment interest requests, whether the requested award is discretionary or mandatory. Osterneck, 489 US. at 176 n.3. When a party “files a post-judgment motion to alter or amend a judgment pursuant to Rule 59(e) [after a notice of appeal is filed], the court retains jurisdiction to resolve the motion under the in aid of an appeal exception” to the rule requiring transfer of jurisdiction. Zeigler v. Andrews, No. 5:17-HC-2044-FL, 2019 WL 6044809, at *2 (E.D.N.C. Nov. 14, 2019) (citing Wolfe v. Clarke, 718 F.3d 277, 281 n.3 (4th Cir. 2013) (stating district court retained jurisdiction to amend its judgment pursuant to Rule 59(e) despite previously filed notice of appeal)). However, if a Rule 59(e) motion is untimely, the court has no power to address it and, therefore, the court does not retain jurisdiction over the matter raised in the motion if a notice of appeal has been filed. See Kirby v. Johnson, No. CIV.A. 02-1955, 2006 WL 1120677, at *1-2 (W.D. Pa. Apr. 26, 2006) (finding no jurisdiction to entertain an untimely Rule 59(e) motion after a notice of appeal was filed); see also Kinghorn for Mildred Anne Kinghorn Tr., Dated Apr. 28, 2004 v. Efthimiadis, 714 F. App’x 287, 288 (4th Cir. 2018) (“{AJn untimely Rule 59 motion cannot defer the time for filing a notice of appeal.”) (citing Panhorst v. United States, 241 F.3d 367, 370 (4th Cir. 2001)).

In this case, Plaintiffs’ motion for prejudgment interest is properly classified as a Rule 59(e) motion. See Silicon Knights, Inc. v. Epic Games, Inc., 917 F. Supp. 2d 503, 524 (E.D.N.C. 2012), aff'd, 551 F. App’x 646 (4th Cir. 2014) (a “request for prejudgment interest is properly classified as a request to amend the court’s judgment, and is governed by Rule 59(e).”) (citing Kosnoski v. Howley, 33 F.3d 376, 378 (4th Cir. 1994) and Osterneck, 489 U.S. at 175). Rule 59(e) of the Federal Rules of Civil Procedure provides that “[a] motion to alter or amend judgment must be filed no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). Plaintiffs filed their motion on January 6, 2021, which is 37 days after the November 30, 2020 Judgment was issued. Thus, on its face, the motion is untimely.

Rule 6(b)(2) of the Federal Rules of Civil Procedure requires that a court “must not extend time to act under Rule[ ]” 59(e). Fed. R. Civ. P. 6(b)(2). “The Fourth Circuit has held that a district court has no authority to extend the filing period for Rule 59(e) motions.” Under A Foot Plant, Co. v. Exterior Design, Inc., No. CV BPG-15-871, 2017 WL 6415265, at *2 (D. Md. Dec. 14, 2017) (citing Panhorst, 241 F.3d at 367 and Alston v. MCI Communications Corp., 84 F.3d 705 (4th Cir. 1996)); see also United States v. Brightman, 408 F. App’x 746, 748 (4th Cir. 2011) (citing Panhorst and Alston in concluding that the district court “was without power to do so” when it entertained an untimely Rule 59(e) motion); United States v. Griffin, 397 F. App’x 902, 903 (4th Cir. 2010) (citing Panhorst and Alston when finding that “though Griffin did move for, and was granted, an extension of time in which to file his motion, the district court was without power to enlarge the time for filing a Rule 59(e) motion.”). The court concludes that, as Plaintiffs’ motion is untimely and the court has no authority to address it, the matter does not “aid in the appeal” and, therefore, this court does not retain jurisdiction—which was transferred to the Fourth Circuit with the notice of appeal—to consider the matter.

As the court has no jurisdiction to address Plaintiffs’ untimely motion for prejudgment interest, the Rule 59(e) motion is denied without prejudice. However, the court retains jurisdiction to address the motions concerning an award of attorney’s fees and, for the following reasons, the Plaintiffs’ motion for attorney’s fees and non-taxable costs is granted in part and denied in part. Il. Motions Regarding Awards of Attorney’s Fees/Costs At the outset, the court notes that Defendants’ “motion for disallowance of costs” is, in essence, a response in opposition to Plaintiffs’ motion for attorneys’ fees and costs, and Plaintiffs’ “response” to Defendants’ motion is actually a reply in support of their motion; thus, the court directs the Clerk of the Court to rectify the record by re-naming the documents on the docket sheet in accordance with this order.

District courts may award reasonable attorney’s fees to the prevailing party in a § 1983 action. Hudson v. Pittsylvania Cty., 774 F.3d 231, 236-37 (4th Cir. 2014) (citing 42 U.S.C. § 1988(b)). “Section 1988 provides that a prevailing party in certain civil rights actions may recover ‘a reasonable attorney's fee as part of the costs.’” Doe v. Kidd, 656 F. App’x 643, 651 (4th Cir. 2016) (quoting Perdue v. Kenny, 559 U.S. 542, 550 (2010)). In Perdue, the Supreme Court concluded that a “reasonable fee” is that which “is sufficient to induce a capable attorney to undertake the represeritation of a meritorious civil rights case.” Perdue, 559 U.S. at 552.

In the Fourth Circuit, the proper calculation of a reasonable attorney’s fee award involves a three-step process. Kidd, 656 F. App’x at 651. First, the court must “determine [the] lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Id.

(citing Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). To make this determination, the court applies the following factors: “(1) [t]he 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) attorney’s fees awards in similar cases.” Jd. at 651-52, n.1.

Second, the court must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Jd. at 652 (quoting Robinson, 560 F.3d at 244). Third, the court should award “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Jd.

A. Lodestar Figures

As the applicants for an award of attorney’s fees, Plaintiffs bear the burden to establish the reasonableness of their counsels’ hourly rates. /d. at 654. Here, Defendants do not challenge the hourly rates charged by Plaintiffs’ counsel; the court finds the following hourly rates are “consistent with ‘the prevailing market rates in the relevant community for the type of work for which [they] seek[] an award.’” Jd. (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)).

0% of those alleged against the Village. The court finds these percentages do not accurately reflect the Plaintiffs’ success in this proceeding. Plaintiffs argue, and the court agrees, that they succeeded—after vigorous litigation—on their “primary” claims for violations of their liberty interests and for libel against the individual Defendants. Notably, Judge Howard’s denial of summary judgment on the liberty interest claims was appealed to and affirmed by the Fourth Circuit. See Order, DE 78. The court finds that the appropriate award in this case is 66% of the lodestar figure, or $282,965.43.

C. Non-Taxable Costs

Despite the document’s title, Defendants’ response does not lodge a substantive objection to the Plaintiffs’ request for recovery of non-taxable “litigation expenses.” If such expenses are “reasonable,” the Plaintiffs may recover them under section 1988. Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No. 5:13-CV-607-D, 2017 WL 4400754, at *8 (E.D.N.C. Sept. 29, 2017) (citing Trimper v. City of Norfolk, 58 F.3d 68, 75 (4th Cir. 1995)). Notably, a prevailing party is not entitled to reimbursement for “questionable litigation expenses.” /d. (quoting Jones v. Dancel, 792 F.3d 395, 404 (4th Cir. 2015)). Additionally, ‘“‘[a]s with attorney’s fees, the [c]ourt may also consider the degree of success in awarding litigation expenses under fee-shifting statutes’ and reduce the expenses accordingly.” /d. (quoting Pierce v. Cty. of Orange, 905 F.Supp.2d 1017, 1048 (C.D. Cal. 2012)).

The court will not engage in an item-by-item examination of the expenses listed by Plaintiffs but notes that certain expenses do not appear reasonable for the simple fact that Plaintiffs have failed to explain them. For example, considering that “reasonable” litigation expenses typically include photocopying, postage, and traveling costs (Mot. at 20), $5,000.00 for “expert witness” Roy Taylor, with no additional explanation, appears to be unreasonable. Moreover,

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Plaintiffs seek recovery of a mediator fee; however, in these circumstances, parties typically enter an agreement as to each party’s responsibility for such expense. Here, Plaintiffs offer no explanation. Finally, Plaintiffs seek reimbursement for an online research service fee; however, because attorneys bill their clients for time expended conducting research, the request for reimbursement of this fee is unreasonable (such request is equivalent to one seeking reimbursement for fees charged by an email provider when an attorney has billed a client for time expended communicating by email). The court will deduct these expenses as unreasonable.

The request for reasonable litigation expenses is reduced to $7,086.49. The court will further reduce the request in accordance with the reduction applied to the fee award based on the Plaintiffs’ success (see Raleigh Wake Citizens Ass’n, 2017 WL 4400754 at *8); the reduced litigation expenses award is $4,677.08.

Ill. Conclusion

For the reasons set forth herein, the court lacks jurisdiction to address Plaintiffs’ motion for prejudgment interest [DE 164] and, therefore, the motion is DENIED WITHOUT PREJUDICE. In addition, the Plaintiffs’ motion for attorneys’ fees and non-taxable costs [DE 156] is GRANTED IN PART and DENIED IN PART. It is ORDERED that: 1. Plaintiffs shall recover from Defendants Peck and Mitchell attorneys’ fees in the amount of $282,965.43;

2. Plaintiffs shall recover from Defendants Peck and Mitchell litigation expenses in the amount of $4,677.08; and 3. The Clerk of the Court is DIRECTED to enter judgment consistent with this order.

SO ORDERED this 2& _ day of July, 2021.

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RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE