United States District Court, N.D. California, San Francisco Division
For Christopher Recouvreur, Plaintiff: Catherine Rachel Gellis, LEAD ATTORNEY, Sausalito, CA; Paul Alan Levy, LEAD ATTORNEY, Public Citizen Litigation Group, Washington, DC.
For Charles Carreon, Defendant: Charles Carreon, LEAD ATTORNEY, Charles Carreon, Esq., Tucson, AZ.
RICHARD SEEBORG, United
States District Judge.
ORDER GRANTING IN PART PLAINTIFF'S MOTIONS FOR ATTORNEY FEES
Plaintiff Recouvreur has filed two separate motions seeking award of attorney fees in the total amount of $77,765.25. The first seeks fees incurred as a result of service attempts and time spent on the attorney fee motion under Federal Rule of Civil Procedure 4(d)(2), and the second seeks fees as a prevailing party under the Lanham Act. Pursuant to Civil Local Rule 7-1(b), this matter is appropriate for disposition without oral argument, particularly in this instance as any further expense associated with oral argument would simply compound the problem. For the following reasons, plaintiff's motion under Rule 4(d)(2) is granted and plaintiff's motion under the Lanham Act is granted in part and denied in part.
This matter arises from a complaint seeking a declaration that plaintiff Recouvreur's satirical website, www.charles-carreon.com, does not infringe the trademark that defendant Charles Carreon has on his own name. Before this lawsuit was initiated, Carreon sent a letter claiming infringement and threatening litigation for trademark infringement and cybersquatting. Plaintiff then retained counsel, who was unable to resolve the dispute informally. This case followed. Seven days after filing, a request for waiver of summons was mailed to defendant at 2165 S. Avenida Planeta, Tucson, Arizona 85710, the address shown on Carreon's listing with the California Bar and on this Court's ECF filings. Carreon declined to waive service of the summons and complaint. After several unsuccessful attempts at service, plaintiff's counsel effected service on defendant in person outside a courtroom following a hearing in this district. On November 20, 2012, plaintiff's counsel sought to meet and confer with defendant regarding plaintiff's first motion for expenses, but defendant refused to pay any service expenses.
Shortly after plaintiff filed a motion for expenses and attorney fees, defendant made an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. The offer provides that plaintiff's use of the domain name and current use of the website will be deemed not to violate defendant's rights and is protected under the First Amendment. It further provides that defendant is not entitled to an injunction against plaintiff and that plaintiff shall take " a total money judgment inclusive of costs in the amount of $725, being the sum of the filing fee and service costs claimed." Plaintiff accepted this offer of judgment on December 17, 2012.
Prior to the Court issuing an Order on the first motion for fees and expenses, plaintiff filed a second motion for fees, this time as a prevailing party under the Lanham Act. Defendant sought a 120-day extension to respond to the motion for purposes of conducting additional discovery and to obtain Amicus Briefs from the International Trademark Association. Plaintiff opposed any such extension. This Court granted a 60-day extension for the filing of any response.
In his motion, plaintiff declares Mr. Levy is a public interest lawyer and that the reasonable rate for his services depends on the prevailing market rate. In attached affidavits, Levy claims an hourly rate of $700. Ms. Gellis is a lawyer in private practice whose ordinary billing rate is $300 per hour. Affidavits record a total of $40,115 in fees leading up to the filing of the second motion, including fees incurred in connection with the first motion under Rule 4(d)(2), and an additional $36,490 in fees and $1,160.25 in expenses responding to defendant's requested ...