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Allen v. Gallery

March 24, 2008

EDWARD ALLEN, AN INDIVIDUAL, PLAINTIFF,
v.
GHOULISH GALLERY, AN ENTITY OF UNKNOWN FORM; TIM TURNER, AN INDIVIDUAL, APRIL TURNER, AN INDIVIDUAL, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS. TIM TURNER, AN INDIVIDUAL, APRIL TURNER, AN INDIVIDUAL, DBA THE GHOULISH GALLERY, COUNTERCLAIMANTS, EDWARD ALLEN, AN INDIVIDUAL, COUNTERDEFENDANT.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge

ORDER ASSESSING ATTORNEY'S FEES AGAINST PLAINTIFF AND ADDITIONAL FINDINGS OF FACT THE AND CONCLUSIONS OF LAW

Calculation of Attorney's Fees Award

On February 19, 2008, the Court granted Defendants' motion to recover attorney's fees based on Defendants' successful defense of the copyright claim. The Court found that Plaintiff's copyright claim based on the "Haunted Memories Changing Portrait Website" was frivolous and objectively unreasonable. It also found that awarding fees would advance considerations of compensation and deterrence.

As permitted under Federal Rule of Civil Procedure 54(d)(2)(C), the Court determined liability for attorney's fees before receiving submissions regarding the amount of such fees. The Court then ordered Defendants to provide a redacted version of their bills in this case that included an itemization of the date, hours and nature of the work performed so that Plaintiff would have the opportunity to challenge the accuracy and reasonableness of the hours charged. Defendants filed the redacted bills. Plaintiff filed a supplemental opposition.

The calculation of a reasonable fee award is a two-step process. See Lytle v. Carl, 382 F.3d 978, 988 9th Cir. 2004). First, the court must calculate the "lodestar figure" by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate. Id. Taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: "(1) the novelty and complexity of the issue; (2) the special skill and experience of counsel; (3) the quality of the representation; (4) the results obtained; and (5) the contingent nature of the fee agreement." During the second step the court, in its equitable discretion, adjusts this amount "on the basis of other considerations." Id. The district court has great deal of discretion in determining the reasonableness of the fee." Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992).

A. Reasonable Hourly Rate

A reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). The community where the court sits is the relevant market for determining reasonable fees. Gates, 987 F.2d at 1405.

Arent Fox LLP and its predecessor firm, O'Brien Abeles LLP, have been Defendants' counsel of record since this matter started in March 2006. Borlund Decl. ¶ 7. The invoices that Defendants submitted and the accompanying declarations show that the hourly rates billed in this matter range from $125 to $430. Supp. Borlund Decl. Ex. A. While the four attorneys who primarily worked on this case worked 1,110.86 hours for this matter, they billed for 1,018.16 hours. Supp. Borlund Decl. ¶ 4. Further, the firm cut its own fees by reducing the attorneys' normal hourly rates and by extending, on occasion, a courtesy discount. Borlund Decl. ¶ 8; Supp. Borlund Decl. Ex. A ($2000 courtesy discount on 4/27/06).

Amy Borlund, the lead associate on this case, billed for over half the total hours billed. Supp. Borlund Decl. ¶ 4. Ms. Borlund graduated from UCLA School of Law in 1999 and has more than eight years experience practicing law. Borlund Decl. ¶ 11. She focuses her practice on business litigation and acted as first or second chair attorney in three trials over the past year. Borlund Decl. ¶ 11. Ms. Borlund normally bills at an hourly rate of $345, but all her hours were billed at the reduced hourly rate of $240. Borlund Decl. ¶ 8.

Jerrold Abeles is a partner with Arent Fox. Borlund Decl. ¶ 9. He billed over one quarter of the hours billed in this case. Supp. Borlund Decl. ¶ 4. He graduated from USC Law Center in 1988 and has practiced law for 19 years. Borlund Decl. ¶ 9. Mr. Abeles has served as first or second chair or the sole attorney on 10 trials and arbitrations. Borlund Decl. ¶ 9. He practices primarily in commercial and business litigation, business torts, intellectual property, insurance and real estate disputes. Borlund Decl. ¶ 9. Mr. Abeles standard billing rate is $425, but most of the hours he worked on this case were billed at the reduced hourly rate of $295.

Bela Lugosi, of counsel for Arent Fox, is a 1964 graduate of USC Law Center and has practiced law for over 40 years. Borlund Decl. ¶ 10. He billed for approximately one eighth of the total hours billed in this case. Supp. Borlund Decl. ¶ 4. Mr. Lugosi focuses his practice in the areas of intellectual property, entertainment, licensing and business law. Borlund Decl. ¶ 10. He has served as lead or co-lead counsel in several trials and has argued three cases before the California Supreme Court. Borlund Decl. ¶ 10. While Mr. Lugosi's standard hourly billing rate is $400, he billed all his hours in this case at the reduced hourly rate ranging from $295 to $315. Borlund Decl. ¶ 4.

Jennifer Terry is an associate with Arent Fox who graduated from Hastings College of Law in 1998. Borlund Decl. ¶ 11. She billed for for approximately one eighth of the total hours billed in this case. Supp. Borlund Decl. ¶ 4. Ms. Terry practices business litigation. Borlund Decl. ¶ 11. Her standard hourly billing rate is $345, but for this case she billed at the reduced hourly rate of $240.

Two other attorneys who worked on this matter contributed less than 13 hours of billed time. Supp. Borlund Decl. ¶ 5. Paralegals worked for a total of 72.5 hours but billed Defendants for only 56.1 of those hours. Supp. Borlund Decl. ¶ 5.

Plaintiff does not oppose the reasonableness of these hourly rates. Nonetheless, this Court has considered the reasonableness of the hourly rates, and finds that given the complexity of the claims at issue, and Defendants' counsels' special skill and experience, quality of representation and ...


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