Summary
approving unopposed rates of $590/hr and $630/hr for partner work in Lanham Act/trademark infringement case
Summary of this case from Sea Prestigio, LLC v. M/Y TritonOpinion
CASE NO. 11-CV-1767 BEN (KSC)
04-08-2013
KOHLER COMPANY and ANN SACKS TILE AND STONE, INC., Plaintiffs, v. DOMAINJET, INC.; JACK SUN; and DOES 1 through 10, inclusive, Defendants.
ORDER GRANTING
PLAINTIFFS' MOTION FOR
ATTORNEY'S FEES AND COSTS
[ECF No. 25]
Pending before the Court is Plaintiffs' unopposed motion for attorney's fees and costs in connection with their lawsuit against Domainjet, Inc. and Jack Sun (collectively, "Defendants"). ECF No. 25. For the reasons stated below, Plaintiffs' motion is GRANTED.
BACKGROUND
On August 8, 2011, Kohler Company and its subsidiary Ann Sacks Tile and Stone, Inc. (collectively, "Plaintiffs") filed a complaint against DomainJet, Inc., Jack Sun, and Does 1 through 10. Plaintiffs sought relief for cybersquatting under 15 U.S.C. § 1125(d), trademark infringement under 15 U.S.C. § 1114, and trademark dilution under 15 U.S.C. § 1125(c). Compl., ECF No. 1. Plaintiffs' initial attempts to serve Defendants failed, and the Court eventually authorized service via electronic mail. Plaintiffs sent copies of the complaint and summonses to Defendants at two e-mail addresses. From one of those addresses, Plaintiffs received a response that stated, "[y]ou are just doing useless things," and "[y]ou should know how to protect yourself instead of doing useless things like a fool," among other things. On December 11, 2012, the Court granted default judgment for Plaintiffs. ECF No. 24. Plaintiffs now move for attorneys' fees and costs. Defendants did not file an opposition. The Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7.1.d.l.
DISCUSSION
I. ATTORNEY'S FEES
Plaintiffs seek an award of attorney's fees in the amount of $90,093.60 based on the time on this action spent by six attorneys (Jason Elster, Daniel Rubinstein, Robert Adel, Ian Burkow, William Tran, and Paul McGrady, Jr.), and five paralegals (Nadine Varga, Loyanna Grierson, Maritza Sandoval, Lee Hutcherson, and Ira Milton). During the relevant time frame, each was associated with the international law firm Greenberg Traurig. Elster, Rubinstein, Burkow, McGrady, Grierson, and Milton were based in Chicago. The others were based in Orange County, California.
In support of the motion, Plaintiffs provide an affidavit from attorney Elster as well as time sheets identifying tasks performed. Elster Aff., ECF No. 25-2. Elster, an associate, explains that he charged a rate of $355-$370/hour and worked for 48.3 hours on the matter. He states that Rubinstein, a shareholder, had a rate of $630/hour and worked for 0.9 hours; Adel, a shareholder, had a rate of $590/hour and worked for 0.4 hours; Burkow, an associate, had a rate of $275-$305/hour and worked for 65.4 hours; Tran, an associate, had a rate of $475-$495/hour and worked for 78.1 hours; McGrady, a shareholder, had a rate of $375/hour and worked for 16 hours. As for the paralegals, Elster states that Varga billed at $245/hour for 1.7 hours, Grierson billed at $200/hour for 1.2 hours, Sandoval billed at $230/hour for 7.8 hours, Hutcherson billed at $240/hour for 31.14 hours, and Milton billed at $175/hour for 25.4 hours. Elster states that the billing rates for these attorneys and paralegals were comparable to the rates charged by similar firms in their respective markets for work performed by individuals of similar experience.
Section 35(a) of the Lanham Act provides that a court may award reasonable attorney's fees to the prevailing plaintiff in "exceptional cases." 15 U.S.C. § 1117(a). "A trademark case is exceptional where the district court finds that the defendant acted maliciously, fraudulently, deliberately, or willfully." Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1216 (9th Cir. 2003). A case may also be exceptional when a defendant disregards the proceedings and does not appear. Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 502 (C.D. Cal. 2003). The Court finds this case exceptional based on Defendants' willful conduct and disregard for the judicial process.
In the Ninth Circuit, the starting point for the calculation of reasonable fees is the "lodestar." Secalt S.A. v. Wuxi Shenxi Constr. Mach., 668 F.3d 677, 689 (9th Cir. 2012) (citing Intel Corp v. Terabyte Int'l, Inc., 6 F.3d 614, 622 (9th Cir. 1993)). The lodestar is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). The lodestar is presumptively reasonable, but in rare cases, the court may adjust it based on various factors. Secalt, 668 F.3d at 689. A court should review the attorneys' time sheets to determine the reasonableness of the hours claimed, and it should look to the prevailing rate in the community for similar work performed by attorneys of comparable skill, experience and reputation to gauge the reasonableness of the charged rate. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986), amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). "[A]ttorney's fees under the Lanham Act may also include reasonable costs that the party cannot recover as the 'prevailing party.'" Secalt, 668 F.3d at 690.
Plaintiffs contend that they incurred $19,960.50 in attorney's fees for preparing and filing the complaint, $40,105 in attorney's fees for preparing an alternative service motion and related papers, and $30,028.10 in attorney's fees for preparing a motion for default judgment and related papers. Flster Aff. ¶ 15. Plaintiffs have submitted time records documenting 56.5, 134.1, and 85.24 hours, respectively spent on these tasks by the attorneys and paralegals mentioned above. Having reviewed the time sheets, the Court concludes that under the circumstances, the time spent was reasonable.
The appropriateness of the billable rates present a closer question. The party seeking fees bears the burden of demonstrating that the rates used are in line with the prevailing market rate of the relevant community, Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006), although a court may in its discretion rely on its own knowledge and experience with the legal market, Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (per curiam). Typically, the "relevant community" is "the forum in which the district court sits." Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Elster's affidavit states only that the rates charged by the attorneys and paralegals were comparable to those of similarly qualified individuals in their respective markets, namely Chicago and Orange County. While the affidavit does not directly address rates in the Southern District of California, the rates used appear reasonable based on the results obtained, the Court's knowledge of the market, and fee awards in similar cases. See Brighton Collectibles, Inc. v. Coldwater Creek Inc., No. 06-CV-01848-H (POR), 2009 U.S. Dist. LEXIS 4005, at * 12 (S.D. Cal. Jan. 20, 2009) (approving fees in a Lanham Act case at hourly rates ranging from $90 to $210 per hour for paralegal work and $125 to $625 per hour for attorney work). As Defendants have not appeared to oppose this motion, Plaintiffs' request for attorney's fees is granted.
II. LITIGATION COSTS
A prevailing Lanham Act plaintiff is entitled to the costs of the action. 15 U.S.C. § 1117(a). Plaintiffs seek an award of $350, the cost of filing the complaint. Elster Aff. ¶ 18. Plaintiffs request is reasonable. It is therefore granted.
CONCLUSION
For the reasons set out above, the Court awards Plaintiffs attorney's fees in the amount of $90,093.60 and costs in the amount of $350.
IT IS SO ORDERED.
_________________
HON. ROGER T. BENITEZ
United States District Court Judge