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BMW of North America, LLC v. Mussari Motors

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 9, 2010

BMW OF NORTH AMERICA, LLC AND BAYERISCHE MOTOREN WERKE AG, PLAINTIFFS,
v.
MUSSARI MOTORS, INC., DEFENDANT.

The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the Court is the Motion for Reimbursement of Attorneys' Fees and Costs filed by Plaintiffs BMW of North America, LLC and Bayerische Motoren Werke AG. (Doc. # 15).

I. Background

On June 3, 2009, Plaintiffs initiated this action by filing the Complaint in this Court. (Doc. # 1). The Complaint alleges claims for trademark infringement and unfair competition pursuant to the Lanham Act and California law. The Complaint seeks damages, injunctive relief and attorneys' fees and costs.

On August 31, 2009, the Clerk of the Court entered default as to Defendant. (Doc. # 8).

On November 3, 2009, Plaintiffs filed a Motion for Default Judgment. (Doc. # 10). Plaintiffs moved the Court for entry of a permanent injunction and an award of attorneys' fees and costs. Plaintiffs did not move for an award of damages.

Defendant did not file a response to the Motion for Default Judgment.

On December 22, 2009, the Court granted the Motion for Default Judgment (Doc. # 12), and entered Judgment against Defendant (Doc. # 14). The Court permanently enjoined Defendant from using Plaintiffs' "roundel logo" and ordered that "Plaintiffs shall be reimbursed, pursuant to Lanham Act § 35, 15 U.S.C. § 1117(a), their reasonable attorneys' fees and costs incurred in this action." (Doc. # 14 at 2).

On January 20, 2010, Plaintiffs filed the Motion for Reimbursement of Attorneys' Fees and Costs. (Doc. # 15). In support of the motion, Plaintiffs submitted an affidavit and exhibits. The motion contains a certificate of service, indicating that the motion was served upon Defendant.

The docket reflects that Defendant has not filed a response to the Motion for Reimbursement of Attorneys' Fees and Costs.

II. Discussion

Plaintiffs seek their "attorneys' fees and costs arising from its enforcement efforts from August 2008 through November 2009, totaling $14,027.47." (Doc. # 15 at 6). According to an affidavit from one of Plaintiffs' attorneys, John G. Froemming, Plaintiffs' outside counsel (consisting of four attorneys and a paralegal) performed 41 hours of work over 16 months in connection with this matter, which was billed at a total of $13,011.25. (Froemming Decl. ¶ 12, Doc. # 15-1). Froemming's affidavit also indicates that Plaintiffs are seeking reimbursement of $1,016.22 in costs associated with this litigation. (Id.) Plaintiffs do not seek reimbursement for certain Westlaw research costs, for work conducted by Plaintiffs' in-house counsel, or for work conducted by Plaintiffs' attorneys in December 2009 and January 2010 in connection with enforcing the Court's Judgment and drafting the Motion for Reimbursement of Attorneys' Fees and Costs. (Doc. # 15 at 4-5; see also Froemming Decl. ¶ 12 n.2, Doc. # 15-1).

In the December 22, 2009 Order, the Court concluded that Plaintiffs are entitled to reasonable attorneys' fees and costs pursuant to the Lanham Act, 15 U.S.C. § 1117(a). (Doc. # 12 at 5-6). The sole remaining issue is whether the amount of fees and costs sought by Plaintiffs is reasonable.

"In the Ninth Circuit, the customary method of determining the permissible amount of attorneys' fees ... is the 'lodestar' method. The lodestar method multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (quotation omitted). "After making [the lodestar] computation, courts then assess whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of twelve factors." Id. (citation omitted). The twelve factors are:

(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.

Id. (citing, inter alia, Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). "[O]nly in rare circumstances should a court adjust the lodestar figure, as this figure is the presumptively accurate measure of reasonable fees." Id. (citations omitted).

After reviewing the Motion for Reimbursement of Attorneys' Fees and Costs, the Froemming Declaration, the attached evidence and the record in this case, the Court concludes that Plaintiffs have accurately calculated its requested fees according to the lodestar method, and that the requested hourly rates and the requested amount of hours are reasonable. The Court concludes that the presumptively reasonable lodestar figure of $13,011.25 should not be adjusted on the basis of the twelve factors recited above. Finally, the Court concludes that Plaintiffs' request for reimbursement of $1,016.22 in costs is reasonable and supported by the evidence.

III. Conclusion

IT IS HEREBY ORDERED that the Motion for Reimbursement of Attorneys' Fees and Costs is GRANTED. (Doc. # 15). Plaintiffs are entitled to an award of $14,027.47 in attorneys' fees and costs.

20100409

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