Summary
declining Mr. Riley's request for reimbursement of $1,275.00 in investigative expenses and $45.53 in courier charges because Mr. Riley "provided no documentation to support the amount sought for courier charges" and for the investigator "submitted only an invoice and no other documentation regarding the qualifications of its investigators or an explanation of what services were provided
Summary of this case from G & G Closed Circuit Events, LLC v. ParkerOpinion
No. 1:16-cv-00485-DAD-JLT
02-26-2019
J & J SPORTS PRODUCTIONS INC., Plaintiff, v. JAVIER MENDOZA CERVANTES, individually and doing business as LA TORMENTA NIGHT CLUB, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
(Doc. No. 61)
This matter came before the court on February 20, 2019 for hearing on plaintiff's motion for attorneys' fees and costs. (Doc. No. 61.) Attorney Thomas P. Riley appeared telephonically on behalf of plaintiff, J & J Sports Productions, Inc. ("J & J Sports"). No appearance was made by or on behalf of defendant, against whom default judgment has previously been entered. (Doc. Nos. 59, 60.) After oral argument, the motion was taken under submission. For the reasons stated below, plaintiff's motion for attorneys' fees and costs is granted in part and denied in part.
BACKGROUND
Plaintiff commenced this action against defendant Javier Mendoza Cervantes, individually and doing business as La Tormenta Night Club, on April 6, 2016, alleging a violation of the Communications Act of 1934 (47 U.S.C. § 605), a violation of the Cable Television Consumer ///// Protection and Competition Act of 1992 (47 U.S.C. § 553), and state law conversion and unfair competition claims. (Doc. No. 1.)
According to its complaint, plaintiff was granted exclusive nationwide commercial distribution rights to a sports program entitled "'The Fight of the Century' Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program" (the "Program"), telecast on May 2, 2015. (Id. at ¶ 14.) On that date, defendant Cervantes was the owner of La Tormenta Night Club at 2711 Taft Highway, Bakersfield, California. (Id. at ¶ 7.) Plaintiff alleges that defendant intercepted and exhibited the Program at La Tormenta Night Club without authorization. (Id. at ¶ 11.)
On October 20, 2016, plaintiff filed a motion for default judgment on the grounds that defendant failed to answer plaintiff's duly served complaint. (Doc. No. 15.) On November 28, 2016, the assigned magistrate judge issued findings and recommendations recommending that the motion for default judgment be granted in part. (Doc. No. 17.) Defendant subsequently filed a motion to set aside the entry of default on December 13, 2016. (Doc. No. 19.) The magistrate judge, finding good cause, granted the motion to set aside the entry of default and withdrew the findings and recommendations. (Doc. No. 21.)
Thereafter, on February 7, 2018, the assigned magistrate judge issued orders requiring defendant to notify the court whether he intended to appear at the scheduled settlement conference and to lodge a settlement conference statement. (See Doc. Nos. 38, 39.) Defendant neither complied with those orders nor communicated with the court in any way. Accordingly, on February 20, 2018, the magistrate judge issued an order requiring defendant to show cause in writing why sanctions, including the striking of his answer and the entry of default against him, should not be imposed due to his failure to comply with the court's orders. (Doc. No. 44.) Defendant did not respond in any way to the order to show cause. On March 20, 2018, the magistrate judge issued findings and recommendations finding that defendant had abandoned this litigation, and recommending that his answer be stricken and default be entered against him. (Doc. No. 48.) The undersigned adopted those findings and recommendations on April 30, 2018. (Doc. No. 51.) /////
Plaintiff renewed its motion for default judgment on June 22, 2018. (Doc. No. 53.) The magistrate judge issued findings and recommendations recommending that the motion be granted in part. (Doc. No. 57.) The undersigned adopted those findings and recommendations on December 18, 2018. (Doc. No. 59.)
On January 2, 2019, plaintiff filed the motion for attorneys' fees and costs now pending before the court. (Doc. No. 61.) Defendant did not file an opposition to this most recent motion.
DISCUSSION
A. Attorneys' Fees
Reasonable attorneys' fees are recoverable under 47 U.S.C. § 605(e)(3)(B)(iii). The court determines the amount of reasonable attorneys' fees by applying the "lodestar" method. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). The lodestar is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. Id. "In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A district court should also exclude from the lodestar fee calculation any hours that were not "reasonably expended," such as hours that are excessive, redundant, or otherwise unnecessary. See id. at 434; see also J & J Sports Prods., Inc. v. Napuri, No. C 10-04171 SBA, 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013).
1. Prevailing Market Rate in the Eastern District of California
The district court must determine a reasonable hourly rate, considering the experience, skill, and reputation of the attorney requesting fees. Chalmers, 796 F.2d at 1210. Reasonable hourly rates are calculated by reference to "prevailing market rates in the relevant community," with a special emphasis on fees charged by lawyers of "comparable skill, experience, and reputation." Davis v. City of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated on other grounds, 984 F.2d 345 (9th Cir. 1993). Generally, the forum district represents the relevant legal community. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992); see also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (determining that "generally, the relevant community [for the prevailing market rate] is the forum in which the district court sits"); Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 471 n.5 (9th Cir. 2000) (same), overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012).
The fee applicant bears the burden of producing satisfactory evidence "that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). "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 Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); see also Napuri, 2013 WL 4428573, at *2.
Here, plaintiff requests a total of $13,108.00 in attorneys' fees. (Doc. No. 61 at 7.) These fees consist of 6.25 hours of work at $500.00 per hour by Thomas P. Riley, Esq. ("Riley"), 25.50 hours of work performed by an unidentified "research attorney" at $300.00 per hour, and 23.33 hours of work by an unidentified "administrative assistant" at $100.00 per hour. (Id.)
Plaintiff has submitted the declaration of attorney Riley in support of its fee request. (Doc. No. 61-1, Declaration of Thomas P. Riley ("Riley Decl.").) Attorney Riley states that he has been practicing law for over twenty-three years, and that his firm has specialized in the civil prosecution of signal piracy claims since 1994. (Id. at ¶¶ 3, 4.) Riley's declaration, however, fails to provide supporting evidence that the $500.00 billing rate he requests is the prevailing market rate in the Eastern District of California. Moreover, plaintiff has not submitted an affidavit from any attorney that worked on this case or from any other attorneys attesting to the prevailing rates in the Eastern District of California for similar services by lawyers of reasonably comparable skill, experience and reputation. See Davis, 976 F.2d at 1546. Similarly, plaintiff has not submitted any evidence of hourly rate determinations in other similar cases in the Eastern District of California setting the hourly rate requested here. See Phelps Dodge Corp., 896 F.2d at 407; see also Napuri, 2013 WL 4428573, at *2. Attorney Riley has noted that the undersigned has previously awarded him a rate of $350.00 per hour. (Doc. No. 61 at 5.) At the hearing on the pending motion, attorney Riley requested that if the court is not inclined to award attorneys' fees based on his $500 per hour rate, it upwardly adjust the $350 rate the court has previously awarded to account for cost-of-living increases over time.
With respect to attorney Riley, the court finds that $375.00 is a reasonable hourly rate within the Eastern District of California given Riley's level of experience and the rate he has been awarded in the past by this court, with a modest upward adjustment for cost-of-living. See, e.g., J & J Sports Prods., Inc. v. Barajas, No. 1:15-cv-01354-DAD-JLT, 2017 WL 469343, at *2 (E.D. Cal. Feb. 2, 2017) (concluding that $350.00 is a reasonable hourly rate for attorney Riley); Joe Hand Promotions, Inc. v. Garcia, No. 1:12-cv-01744-LJO, 2013 WL 238369, at *3 (E.D. Cal. May 30, 2013) ("Previously this court has determined that $350 is a reasonable hourly rate for '(very) experienced and skilled trial counsel' within . . . the Eastern District.") (citing Jadwin v. County of Kern, 767 F. Supp. 2d 1069, 1132 (E.D. Cal. 2011)), report and recommendations adopted, 2013 WL 2991048 (E.D. Cal. June 14, 2013); see alsoMoreau v. Daily Indep., 2013 U.S. Dist. LEXIS 29085, 2013 WL 796621 at *3 (E.D. Cal. Mar. 1, 2013) (approving rate of $350 for attorneys with more than 20 years of experience)).
In addition, plaintiff seeks attorneys' fees based on an hourly rate of $300.00 for the research attorney who worked on this case, but acknowledges that this court has previously found $210.00 to be a reasonable rate for the same research attorney. (See Doc. No. 61 at 5.) Attorney Riley's declaration states that the research attorney who worked on this case has been practicing law for twenty-four years, and has been assisting his office with commercial signal piracy claims for approximately ten years. (Riley Decl. at ¶ 3.) Having already found that a $375.00 hourly rate is reasonable for attorney Riley in the Eastern District of California, the court finds that a concomitant 25 percent reduction is also appropriately applied to the research attorney's fees, for an hourly rate of $225.00. Accordingly, plaintiff will be awarded attorneys' fees based on a rate of $225.00 per hour for its research attorney. ///// /////
2. Contemporaneous Billing
Attached as an exhibit to attorney Riley's declaration is a chart describing the services rendered and hours billed. (Riley Decl., Ex. 1.) The entries in the chart, however, are not based on contemporaneous billing records, but were "reconstructed by way of a thorough review of the files themselves" after services were rendered. (Riley Decl. at ¶ 7.)
"Absent the submission of detailed contemporaneous time records justifying the hours claimed to have been expended on this case, the [c]ourt gives little weight to the figures provided by [p]laintiff." Napuri, 2013 WL 4428573, at *2; see also Joe Hand Promotions, Inc. v. White, No. C 11-01331 CW (JSC), 2011 WL 6749061, at *2 (N.D. Cal. Dec. 6, 2011) ("Because the billing records were not created contemporaneously, the Court finds that they are inherently less reliable."); Joe Hand Promotions, Inc. v. Be, No. 11-CV-01333-LHK, 2011 WL 5105375, at *7 (N.D. Cal. Oct. 26, 2011) (noting that without actual billing records, the court gives "little weight" to figures "reconstructing" billable time); Zynga Game Network Inc. v. Erkan, No. 09-03264 SC, 2010 WL 3463630, at *2 (N.D. Cal. Aug. 31, 2010) (denying motion for attorneys' fees where plaintiff failed to attach "actual billing records").
Although the reconstructed billing records here are inherently less reliable, the amount of attorney time spent on this case does not appear to be "unnecessary, excessive, or unreasonable." Joe Hand Promotions, Inc. v. Albright, No. 2:11-cv-02260-WBS, 2013 WL 4094403, at *4 (E.D. Cal. Aug. 13, 2013). In total, attorney Riley and the research attorney spent 31.75 hours on this matter, which has spanned nearly three years and has involved substantive motion practice, including plaintiff's filing of two motions for default judgment, an opposition to defendant's motion to set aside entry of default, and a motion for leave to file a motion for partial summary judgment. (See generally Riley Decl., Ex. 1.) Given the procedural history of this case, the court finds the amount of attorney time expended on this matter to be reasonable. See Barajas, 2017 WL 469343, at *3; Albright, 2013 WL 4094403, at *4. Accordingly, plaintiff's motion in this regard will be granted and attorneys' fees are awarded for 6.25 hours at $375.00 per hour for attorney Riley, and 25.50 hours at $225.00 per hour for the research attorney, for a total amount of $8,081.25.
3. Fees for the Administrative Assistant
While plaintiff acknowledges that the award of attorneys' fees for the services rendered by administrative assistants has been rejected by this court in the past, plaintiff asks the court to reconsider its prior determinations, arguing that the tasks assigned to the administrative assistant in this case were not clerical in nature, "but more akin to paralegal type work," and were not duplicative of counsel's time expended on the matter. (Id.) If the court is not inclined to grant the $100.00 rate requested by plaintiff, plaintiff asks the court to award $75.00 per hour for work performed by the administrative assistant. (Id. at 5-6.)
This court and others within this circuit have previously declined to award fees for clerical work by administrative assistants, particularly where there is a lack of specificity in such billing by administrative assistants and the billing is duplicative of attorney time. See, e.g., J & J Sports Prods., Inc. v. Marini, No. 1:16-cv-0477-AWI-JLT, 2018 WL 2155710, at *2 (E.D. Cal. May 10, 2018); J & J Sports Prods., Inc. v. Meza Jimenez, No. CV-17-1320-PHX-DGC, 2018 WL 1621254, at *1 (D. Ariz. Apr. 4, 2018); J & J Sports Prods., Inc. v. Barajas, No. 15-cv-01354-DAD-JLT, 2017 WL 469343, at *3-5 (E.D. Cal. Feb. 2, 2017); J & J Sports Prods., Inc. v. Corona, No. 1:12-cv-01844-LJO-JLT, 2014 WL 1513426, at *2 (E.D. Cal. Apr. 16, 2014), adopted in full, 2014 WL 1767691 (E.D. Cal. May 2, 2014). Here, the use of block billing makes it unclear how much time the administrative assistant spent on "preparation" versus "filing and service" of documents, and many of the billings for attorney Riley and his administrative assistant appear to be identical. (See generally Riley Decl., Ex. 1.) As the court has previously found, given the lack of specificity and the clerical and duplicative nature of the tasks, no fees will be awarded for tasks completed by the administrative assistant.
B. Costs
47 U.S.C. § 605(e)(3)(B)(iii) requires that the court award "full costs . . . to an aggrieved party who prevails." Here, plaintiff seeks costs in the amount of $2,078.06, consisting of $400.00 for the complaint filing fee, $260.00 for service of process charges, $45.53 for courier charges, $97.53 for photocopying charges, and $1,275.00 for investigative expenses. Only the costs for ///// the filing fee, service of process charges, and investigative expenses are appropriately documented. Plaintiff has provided no documentation to support the amount sought for courier charges and photocopying charges, and at the hearing on the pending motion, counsel stated that plaintiff would waive those costs. The costs for courier charges and photocopying charges will therefore not be awarded.
Although plaintiff did not submit a copy of receipt for the complaint filing fee, the docket in this case makes clear that the $400.00 filing fee was paid on April 6, 2016. (See docket, indicating "[f]iling fee $400, receipt number 0972-6405525".)
With respect to plaintiff's request for investigative expenses, courts have refused to award such pre-filing investigative fees to the prevailing party. See, e.g., Napuri, 2013 WL 4428573, at *3; Joe Hand Promotions, Inc. v. Piacente, No. C-10-3429 CW (JCS), 2011 WL 2111467, at *9 (N.D. Cal. Apr. 11, 2011). Plaintiff contends that there is a split of authority with respect to the recovery of investigative costs. (Doc. No. 61 at 6-7.) While the court recognizes that investigative costs have been awarded to the prevailing party in some of the cases cited by plaintiff, those decisions do not address the issue or explain why the award of such costs was appropriate. See, e.g., J & J Sports Prods., Inc. v. Pagliaro, 2014 WL 7140605, No. 1:12-cv-01507-LJO-SAB, at *2 (E.D. Cal. Dec. 12, 2014) (noting only that "[p]laintiff spent $601.00 on 'Investigative Expenses,'" and awarding such costs without explanation); J & J Sports Prods., Inc. v. Mosley, No. C-10-5126 CW (EMC), 2011 WL 2066713, at *7 (N.D. Cal. Apr. 13, 2011) (noting only that plaintiff's counsel submitted a declaration substantiating $600.00 for "investigative expenses," and awarding such costs without explanation). Plaintiff has provided no other authority for the proposition that it is entitled to the award of investigative expenses here.
Moreover, the court finds the analysis set forth in Joe Hand Promotions, Inc. v. Albright to be instructive. There, the court found that even if the investigative costs were recoverable, they were insufficiently documented because plaintiff only included a bare invoice and "no additional information regarding the qualifications of the investigation company or what services it provided, leaving the court with no means of determining if the charge is reasonable." 2013 WL 4094403, at *6. Other jurisdictions have followed this approach. See, e.g., Kingvision Pay-Per- View Ltd. v. Autar, 426 F. Supp. 2d 59, 67 (E.D.N.Y. 2006) ("Thus a plaintiff must document '(1) the amount of time necessary for the investigation; (2) how much the investigators charged per hour; [and] (3) why the investigators are qualified to demand the requested rate.'" (internal quotations omitted)). Here, plaintiff has submitted only an invoice and no other documentation regarding the qualifications of its investigator or an explanation of what services were provided. (See Riley Decl., Ex. 2.) Accordingly, the court declines to award the requested investigative costs.
In sum, the court finds that plaintiff has failed to meet its burden to support its request for costs for the courier charges, photocopying charges, and investigative expenses. Plaintiff's request for costs will be granted as to $660.00 for the filing fee and service of process costs, and denied as to all other claimed costs.
CONCLUSION
For the reasons set forth above,
1. Plaintiff's motion for attorneys' fees and costs (Doc. No. 61) is granted in part and denied in part;IT IS SO ORDERED.
2. The court awards $8,081.25 to plaintiff in attorneys' fees; and
3. The court awards $660.00 to plaintiff in costs.
The total award for fees and costs is therefore $8,741.25.
Dated: February 26 , 2019
/s/_________
UNITED STATES DISTRICT JUDGE