Opinion
No. C 09-0884 MEJ.
May 27, 2010
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES (DKT. #67)
I. INTRODUCTION
Pending before the Court is Plaintiff IO Group, Inc.'s ("Plaintiff") Motion for Attorney's Fees, filed April 30, 2010. (Dkt. #67.) On April 16, 2010, the Court entered default judgment against Defendant Jason Jordan ("Defendant"), who has now failed to file an opposition to Plaintiff's motion or otherwise appear in this matter since December 17, 2009. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral argument and hereby VACATES the June 10, 2010 hearing. After consideration of Plaintiff's moving papers, relevant legal authority, and good cause appearing, the Court GRANTS Plaintiff's Motion and awards attorney's fees in the amount of $16,443.00, as detailed below.
Although Plaintiff seeks $16,447.00 in its motion, the declaration in support filed by its counsel provides an invoice that lists $16,443.00. Accordingly, the Court shall award the lower amount.
II. BACKGROUND
On February 27, 2009, Plaintiff filed the above-captioned matter against Defendant for copyright infringement under the Federal Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (Compl., Dkt. #1.) On May 8, 2009, after Defendant failed to respond to the Complaint, the Clerk of Court entered default against him. (Dkt. #7.) However, Defendant subsequently appeared in the case, and the Court set aside default on November 25, 2009. (Dkt. #40.) Following this appearance, Defendant failed to respond to communications from Plaintiff's counsel and the Court, and mail sent to Defendant was returned to the Court as undeliverable. (Dkt. ##34-35, 41, 48-49, 56, 60-61.) Thus, the Court issued an order for Defendant to show cause why his default should not be re-entered for failure to defend himself in this action and failure to comply with court rules and deadlines. (Order to Show Cause, Dkt. #51.) Defendant failed to respond, and the Court re-entered default against him on February 8, 2010, (Dkt. #55), and thereafter entered default judgment on April 16, 2010 (Dkt. #65). Plaintiff then filed the present motion for attorney's fees.
III. DISCUSSION
In its motion, Plaintiff seeks an award of $16,443.00 in fees for its counsel's work in this case. Plaintiff's counsel, D. Gill Sperlein, has submitted a declaration in support of Plaintiff's motion. (Dkt. #68.)
Under the Copyright Act of 1976, a court has discretion to award attorney's fees to the prevailing party. 17 U.S.C. § 505; Fogerty v. Fantasy, Inc., 510 U.S. 517, 527-33 (1994). Given this discretion, courts must make their determinations based on equitable circumstances. The Ninth Circuit has identified five factors that a court may consider in deciding whether to award attorney's fees under the Copyright Act: "`the degree of success obtained; frivolousness; motivation; objective unreasonableness; . . . and the need in particular circumstances to advance considerations of compensation and deterrence.'" Magnuson v. Video Yesteryear, 85 F.3d 1424, 1432 (9th Cir. 1996) (quoting Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994). The Court shall consider each factor in turn.
A. Degree of Success Obtained
B. Frivolousness
Danning v. Lavine, 572 F.2d 13861388 Id.
C. Motivation
As to its motivation for bringing this case, Plaintiff states that it routinely protects its copyrights and has filed many copyright enforcement actions against individuals and corporations. (Sperlein Decl., Dkt. #68, ¶ 9.) Although Defendant claimed in his answer that racism motivated Plaintiff to file this action, (Responsive Pleading, Dkt. #33, 2:1-2), there is no evidence supporting such a charge. The record reflects that Plaintiff's motivation for bringing this case was the desire to seek compensation for damage caused by Defendant's infringing acts and to deter others from infringing in the future. (Sperlein Decl. ¶ 9.)
D. Objective Unreasonableness
Next, the Court must examine whether the parties' factual and legal arguments were objectively reasonable. Here, Plaintiff did not rely on any novel legal theories, and the primary facts upon which Plaintiff relied in support of its claims (its ownership of the copyrights and Defendant's unauthorized use of those works on his site) are readily apparent.
Conversely, Defendant's factual claims are objectively unreasonable. In his Responsive Pleading, Defendant first claims, without support or explanation, that he had reason to believe Plaintiff uploaded the content to his website, (Dkt. # 33, 1:19-20), but later contradicts that claim by stating that he, "spoke to one of the up loaders, who explained he thought there was no problem uploading the photo since it states it came from Titans [sic] website in their promotional material for affiliates." Id. at 1:23. Defendant also claimed that members of his website are screened to make sure they are safe up loaders, and yet he claims he would not allow the specific content which was undeniably reproduced and broadcast though his website. Id. at 1:17-22. Given the inherent contradictions in Defendant's factual statements, the Court finds that they are not reasonable.
E. Need for Deterrence and Compensation
As to the final factor, the Court finds that an award of attorney's fees in this matter will both serve the need to deter other would-be infringers and compensate Plaintiff. If left unchecked, infringement such as that at issue in this case would likely become widespread and would adversely impact the market for copyrighted works. Sega Enters. v. MAPHIA, 948 F. Supp. 923, 940-41 (N.D. Cal. 1996). Moreover, Plaintiff pursued settlement in this matter and, as indicated to the Court in Plaintiff's motion to reschedule the CMC, the parties were at the time very close to reaching an agreement. (Dkt. #9, ¶ 4.) However, Defendant subsequently stopped communicating with Plaintiff's counsel. It is unclear why Defendant failed to vigorously defend himself in this lawsuit and continue working toward settlement; however, it is clear that Defendant's lack of participation caused Plaintiff to incur greater fees as the case progressed. Accordingly, the Court finds that Plaintiff is entitled to compensation for bringing this action.
F. Summary
Taken together, the Court finds that Plaintiff has made a sufficient showing that all five factors weigh in favor of an award of attorney's fees under 17 U.S.C. § 505. Accordingly, the Court GRANTS Plaintiff's motion and shall now determine a reasonable fee award.
G. Reasonable Attorney's Fees Award
As stated above, Plaintiff seeks an award of $16,443.00 in fees for its counsel's work in this case. The starting point for determining reasonable fees is the calculation of the "lodestar," which is obtained by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). In determining a reasonable number of hours, the Court must review detailed time records to determine whether the hours claimed by the applicant are adequately documented and whether any of the hours were unnecessary, duplicative or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh'g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). To determine a reasonable rate for each attorney, the Court must look to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Id. at 1210-11.
"The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan, 814 F.2d at 1263. "Affidavits of the plaintiff's attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiff's attorney, are satisfactory evidence of the prevailing market rate." United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Courts also may rely on decisions by other courts awarding similar rates for work in the same geographical area by attorneys with comparable levels of experience. See, e.g., Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009) (affirming award of attorneys' fees at rate of $500.00/hour where party had submitted a declaration describing her experience and attached copies of fee awards in the same geographical area where counsel had comparable experience).
In calculating the lodestar, the Court should consider any of the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied 425 U.S. 951 (1976), that are relevant. Jordan, 815 F.2d at 1264 n. 11 (noting that the Ninth Circuit no longer requires that the district court address every factor listed in Kerr). In Kerr, which was decided before the lodestar approach was adopted by the Supreme Court, the Ninth Circuit adopted the 12-factor test articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). This analysis looked to the following factors for determining reasonable fees: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other 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. Kerr, 526 F.2d at 70.
To the extent that the Kerr factors are not addressed in the calculation of the lodestar, they may be considered in determining whether the fee award should be adjusted upward or downward, once the lodestar has been calculated. Chalmers, 796 F.2d at 1212. However, there is a strong presumption that the lodestar figure represents a reasonable fee. Jordan, 815 F.2d at 1262. An upward adjustment of the lodestar is appropriate only in extraordinary cases, such as when an attorney faced exceptional risks of not prevailing or not recovering any fees. Chalmers, 796 F.2d at 1212. A reduced fee award is appropriate where a plaintiff achieves only partial or limited success. Hensley, 461 U.S. at 436. To be compensable, an attorney's time must be "reasonable in relation to the success achieved." Id. When accounting for limited success, a court may eliminate specific hours in calculating the lodestar, or it may simply reduce the award. Id.
1. Reasonableness of Hourly Rates
Over the course of this litigation, Plaintiff was represented solely by D. Gill Sperlein. Mr. Sperlein graduated from American University's Washington College of Law, where he earned his Juris Doctor in 1994. (Sperlein Decl., Dkt. #68, ¶ 2.) For approximately the last eight years, his practice has focused almost exclusively on copyright and anti-piracy. Id. at ¶ 3. His regular billable rate is $290.00 per hour. Id. at ¶ 5. As detailed in his declaration, Mr. Sperlein billed a total 56.7 hours from February 23, 2009 to April 16, 2010, for a total fee request of $16,443.00. Id. at Ex. A.
In determining the lodestar, the Court must make a determination that the rate charged for all work was reasonable, based on evidence that the rates are in line with those charged by attorneys in the relevant community with comparable qualifications for similar work. United Steelworkers of America, 896 F.2d at 407. A widely recognized compilation of attorney and paralegal rate data is the Laffey matrix, so named because of the case that generated the index. In Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), the court employed a variety of hourly billing rates to account for the various attorneys' different levels of experience. The Laffey matrix has been regularly prepared and updated by the Civil Division of the United States Attorney's Office for the District of Columbia and used in fee shifting cases, among others. See
http://www.justice.gov/usao/dc/Divisions/Civil_Division/Laffey_Matrix_8.html, visited January 19, 2010.Under the 2008-2009 Laffey matrix, attorneys bill at the following rates according to experience: Experience Rate Per Hour
According to the United States Attorney's Office website, available at
Applying these adjustments, the Court obtains the following rates (rounded to the nearest dollar): Experience Rate Per Hour
20+ Years $516 11-19 Years $456 8-10 Years $367 4-7 Years $300 1-3 Years $250 Paralegals $145 Based on these rates, it is clear that the rate of $290.00 charged by Mr. Sperlein is lower than the rates under the Laffey matrix. In his declaration, Mr. Sperlein states that he earned his Juris Doctor degree in 1994 and has at least eight years of experience in the area of copyright and anti-piracy law. Thus, at a minimum, the average rate for someone with Mr. Sperlein's experience is $367.00 per hour at the 8-10 year rate and $456.00 at the 11-19 year rate. Based on this comparison, the Court is satisfied that the requested rate of $290.00 per hour is reasonable.2. Reasonableness of Claimed Hours
The Court next evaluates whether the number of hours expended by Mr. Sperlein is appropriate to the requirements of the particular case. Reasonably competent counsel bill a reasonable number of hours; they do not bill hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. Thus, if the requested number of hours is greater than the number of hours reasonably competent counsel would have billed, then the Court should reduce the requested number of hours accordingly. Id. Additionally, the Court must take into consideration discounts commonly given to clients. As emphasized by the Supreme Court in Hensley, "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id.
In his declaration, Mr. Sperlein provided the invoice for his work related to this matter, which shows 56.7 hours billed for his work on this case. (Sperlein Decl., Dkt. #68, Ex. A.) Upon review of Mr. Sperlein's invoice and the docket in this case, the Court finds that the amount of time spent in this case is reasonable. As stated above, Plaintiff filed this action for copyright infringement against Defendant over one year ago. Defendant defaulted, but the Court granted his motion to set aside the default. (Dkt. #40.) Thereafter, Defendant failed to respond to communications from Plaintiff's counsel and the Court and the Post Office returned as undeliverable all mail sent to the address Jordon provided the Court. (Dkt. ##34-35, 41, 48-49, 56, 60-61.) Thus the Court issued an Order to Show Cause why default should not be again entered. (Dkt. #51.) Defendant once again failed to respond and the Court entered Default, (Dkt. #55), and Default Judgment (Dkt. #65). Throughout this procedural history, it appears that Plaintiff attempted to maintain an amicable relationship with Defendant, attempting to negotiate a settlement and working to help Defendant observe the deadlines imposed by the Court. Further, the Court notes that most of Plaintiff's billing requests are for tasks completed in less than one hour, and no request is higher than 3.7 hours. Accordingly, the Court finds that an award of 56.7 hours in attorney's fees is appropriate.
IV. CONCLUSION
Based on the analysis above, the Court hereby GRANTS Plaintiff's motion for attorney's fees in the amount of $16,443.00.