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Neurovision Medical Products, Inc v. Nuvasive

May 5, 2011

NEUROVISION MEDICAL PRODUCTS, INC., PLAINTIFF,
v.
NUVASIVE, INC. AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: The Hon. Manuel L. Real Judge of the United States District Court

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS AND RELATED COUNTERCLAIMS.

Hearing Date: March 21, 2011 Hearing Time: 10:00 a.m. Courtroom: 8 Trial Date: October 19, 2010

Before the Honorable Manuel L. Real

[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS

Plaintiff Neurovision Medical Products, Inc.'s ("Plaintiff") motion for attorney's fees -- Doc. No. 200 -- came before this Court for hearing on March 21, 2011. Having considered the motions, the parties' supporting and opposing documents, the pleadings and papers filed in this action, the evidence presented at the trial in this matter and any argument of counsel presented at the hearing on the motions,

IT IS HEREBY ORDERED that Plaintiff's motion is GRANTED, but the amount of the fees requested by Plaintiff is reduced, as set forth below.

This is an "exceptional case" under the Lanham Act because, inter alia, defendant NuVasive, Inc. ("Defendant") infringed upon Plaintiff's trademark willfully. See Lindy Pen, Inc. v. Bic Pen Corp., 982 F.2d 1400 (9th Cir. 1993). Accordingly, as recognized in Classic Media, Inc. v. Mewborn, 532 F.3d 978 (9th Cir. 2008), this Court may in its discretion award Plaintiff its reasonable attorney's fees. Based on the evidence presented at trial and the jury's findings, this Court exercises its discretion and awards attorney's fees and costs to Plaintiff and against Defendant.

Pursuant to Toussaint v. McCarthy, 826 F.2d 901 (9th Cir. 1987), it is plaintiff's burden to document the hours worked and the reasonableness of plaintiff's counsel's rate. It is then defendant's burden to rebut that the number of hours worked and the hourly rate were reasonable.

Plaintiff has largely carried its burden. Defendant largely has not. Plaintiff submitted competent evidence that its counsel's rates are commensurate with those of attorneys of comparable skill, reputation and experience in the Central District of California performing similar work. See Welch v. Metro Life Insurance Co., 480 F.3d 942 (9th Cir. 2007). The Court disagrees that the paralegal time claimed by Plaintiff's counsel is more properly classified as secretarial work. Additionally, the Court rejects Defendant's blanket allegation that all work performed by Rincon Venture Law Group, after Browne Woods George appeared in the case, was duplicative. Defendant did not carry its burden of actually identifying duplicative work or time entries. That said, Rincon Venture Law Group's total fee request is reduced by 10 percent to account for the redacted time entries that obfuscate their subject matter. And the award is reduced by $36,669.70 for the failure to attach Rincon Venture's June 2010 time records to the original moving papers. While the records were attached to Plaintiff's reply papers, Plaintiff did not satisfy its burden of documenting the hours expended in its motion papers.

Finally, Plaintiff has adequately documented its additional claimed costs. Plaintiff has shown that it is the prevailing practice to bill those costs separate from an attorney's hourly rate and that its counsel in this case billed those costs separate from their hourly rate. Therefore, pursuant to Grove v. Wells Fargo Financial California, Inc., 606 F.3d 577, 583 (9th Cir. 2010), the additional costs claimed by Plaintiff are taxable to Defendant, and the Court exercises its discretion to tax those costs to Defendant.

Plaintiff claimed $1,203,663 in attorney's fees and $55,151 in additional costs. For the reasons stated above, Plaintiff is awarded attorney's fees in the amount of $1,132,899 and additional costs in the amount of $55,151. The clerk previously awarded taxable costs to Plaintiff in the amount of $29,179.70. (Doc. No. 214.)

Therefore, the Court hereby orders the clerk to fill in the amount of $1,217,229.70 on the blank line on page 2, line 25 of the Judgment (Doc No. 187).

Submitted ...


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