United States District Court, N.D. California, San Jose Division
March 24, 2014
J&J SPORTS PRODUCTIONS, INC., Plaintiff,
JESUS CISNEROS ORTIZ, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEYS' FEES AND COSTS
LUCY H. KOH, District Judge.
Plaintiff J&J Sports Productions, Inc. ("Plaintiff") brought this action against Defendants Jesus Cisneros Ortiz, Maria Cisneros Ortiz, and Ventura Ortiz, individually and doing business as El Alteno ("Defendants"), arising from Defendants' allegedly unauthorized public exhibition of a televised sporting event. Before the Court is Plaintiff's Motion for Attorneys' Fees and Costs. See Pl.'s Mot. Attys' Fees and Costs. ("Mot."), ECF No. 21. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for determination without oral argument. Accordingly, the hearing set for March 27, 2014, at 1:30 p.m. is VACATED. For the reasons discussed below, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Attorneys' Fees and Costs.
Plaintiff J&J Sports Productions, Inc. is a sports and entertainment programming distributor, and alleges it secured the exclusive domestic commercial distribution rights to broadcast the "Manny Pacquiao v. Juan Manuel Marquez III, WBO Welterweight Championship Fight Program" (the "Program"), which telecast nationwide on November 12, 2011. See Compl. ECF No. 1, ¶ 20. Plaintiff then entered into sub-licensing agreements with various commercial entities throughout the United States, wherein it granted limited public exhibition rights to these entities in exchange for licensing fees. See Compl. ¶ 21. On November 12, 2011, investigator Mary Gallant observed the Program being displayed at Defendants' commercial establishment, El Alteno, located in Watsonville, California. See Compl. ¶¶ 7-13; Mot. for Default J., ECF No. 14-1, at 2. Plaintiff alleges that Defendants intercepted the Program unlawfully, and intentionally exhibited it for the purpose of direct or indirect commercial advantage. See Compl. ¶¶ 23-24.
On November 9, 2012, Plaintiff filed this action against Defendants for: (1) violation of the Federal Communications Act of 1934, as amended, 47 U.S.C. §§ 605, et seq.; (2) violation of the Cable Television Consumer Protection and Competition Act of 1992, as amended, 47 U.S.C. §§ 553, et seq.; (3) conversion; and (4) violation of California Business and Professions Code §§ 17200, et seq. See Compl. at 5-10.
On January 25, 2013, the Clerk of the Court granted Plaintiff's request and entered default against Defendants. See ECF No. 13. On March 26, 2013, Plaintiff moved for default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. See ECF No. 14. On October 7, 2013, the Court granted Plaintiff's motion for default judgment. See ECF No. 20. The Court did not award attorneys' fees and costs at the time because Plaintiff's motion for default judgment did not specifically request attorneys' fees and costs; nor did the motion for default judgment provide any evidence to support such an award. Id. at 8 n.2. Thus, the Court advised Plaintiff that if Plaintiff "wishes to recover attorney's fees and costs, [Plaintiff's counsel] must file an affidavit and supporting documentation within 30 days of [the] Order, including a curriculum vitae or resume as well as billing and cost records to justify such an award." Id.
On November 6, 2013, Plaintiff filed its Motion for Attorneys' Fees and Costs. ECF No. 21. No opposition was filed.
A. Attorneys' Fees
Reasonable attorneys' fees are recoverable under both § 605(e)(3)(B)(iii) and § 553(c)(2)(C). The court determines the amount of reasonable attorneys' fees by applying the "lodestar" method. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir. 2001). The lodestar is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. Id.
In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A district court should also exclude from the lodestar fee calculation any hours that were not "reasonably expended, " such as hours that are excessive, redundant, or otherwise unnecessary. See id. at 433-34; see also J & J Sports Prods., Inc. v. Napuri, No. C 10-04171 SBA, 2013 U.S. Dist. LEXIS 116238, at *4 (N.D. Cal. Aug. 15, 2013).
Next, the district court must determine a reasonable hourly rate, considering the experience, skill, and reputation of the attorney requesting fees. Chalmers, 796 F.2d at 1210. Reasonable hourly rates are calculated by reference to "prevailing market rates in the relevant community, " with a special emphasis on fees charged by lawyers of "comparable skill, experience, and reputation." Davis v. City of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993). As a general rule, the forum district represents the relevant legal community. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992); see also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (in determining the prevailing market rate, "generally, the relevant community is the forum in which the district court sits").
The fee applicant bears the burden of producing satisfactory evidence "that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895, n. 11 (1984). "Affidavits of the plaintiff[s] attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiff[s] attorney, are satisfactory evidence of the prevailing market rate." United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
Here, Plaintiff requests a total of $2, 990.00 in attorneys' fees based on 3.2 hours of work at an hourly rate of $450 performed by Thomas P. Riley ("Riley"), as well as 3 hours of work at an hourly rate of $150 performed by a paralegal ("PRL"), 8.25 hours of work at an hourly rate of $75 performed by an administrative assistant ("AA"), and 1.75 hours of work at an hourly rate of $275 performed by an unidentified person with the initials "ASC." Declaration of Plaintiff's Counsel Regarding Attorneys' Fees and Costs ("Riley Decl."), ECF 21-1, Ex. 1; see also Riley Decl. ¶ 7 (providing the description of the acronyms used in the billing records and failing to include any description regarding "ASC").
In support of its fee request, Plaintiff submitted the declaration of Riley and a chart describing the services rendered and hours billed. Id. However, the entries in the chart are not based on contemporaneous billing records; instead, "[b]illable hours for legal services [were] reconstructed by way of a thorough review of the files themselves" after services were rendered. See Riley Decl. ¶ 6. Riley declares that, "[h]aving handled thousands of commercial signal privacy files over the last decade and a half, we are most capable of calculating billable hours for legal services rendered. Our rates for legal, administrative, and paralegal time are well within the prevailing market rates for the Central District of California." Id. Riley further states that he has been practicing law for "over two decades" and that his firm has specialized in the civil prosecution of commercial signal piracy claims since 1994. Id. ¶¶ 3-4.
"Absent the submission of detailed contemporaneous time records justifying the hours claimed to have been expended on this case, the Court gives little weight to the figures provided by Plaintiff." Napuri, 2013 U.S. Dist. LEXIS 116238, at *6; see also Joe Hand Promotions, Inc. v. Be, No. 11-CV-01333-LHK, 2011 U.S. Dist. LEXIS 124057, at *17-18 (N.D. Cal. Oct. 26, 2011) ("Without actual billing records, ... the Court gives little weight to... figures" in a chart "reconstructing" billable time); Joe Hand Promotions, Inc. v. White, No. C 11-01331 CW (JSC), 2011 U.S. Dist. LEXIS 148057, at *5 (N.D. Cal. Dec. 6, 2011) ("Because the billing records were not created contemporaneously, the Court finds that they are inherently less reliable."); Zynga Game Network Inc. v. Erkan, Case No. 09-3264 SC, 2010 U.S. Dist. LEXIS 97676, at *4 (N.D. Cal. Aug. 31, 2010) (denying motion for attorney's fees where plaintiff failed to attach "actual billing records").
Moreover, Plaintiff's showing with respect to the hourly rates charged by the attorneys that worked on this case is inadequate. Plaintiff has made no effort to demonstrate that the hourly rates charged are reasonable in the Northern District of California. Instead, Riley simply asserts that the rates charged are "well within the prevailing market rates for the Central District of California, " and attaches the Laffey Matrix to support this assertion, which establishes the prevailing market rates in the "District of Columbia." See Riley Decl. ¶ 6 and Ex. 2. However, the Northern District of California-not the Central District of California or the District of Columbia-is the "relevant community" for purposes of determining whether the hourly rates charged in this case are reasonable. See Gates, 987 F.2d at 1405. Plaintiff has not submitted an affidavit from any attorney that worked on this case or from any other attorney attesting to the prevailing rates in the Northern District of California for similar services by lawyers of reasonably comparable skill, experience and reputation. See Davis, 976 F.2d at 1546. Similarly, Plaintiff has not submitted any evidence of hourly rate determinations in other such cases in the Northern District of California setting the rate for the attorneys seeking fees. See Phelps Dodge Corp., 896 F.2d at 407; see also Napuri, 2013 U.S. Dist. LEXIS 116238, at *7. Attorney Riley's declaration, without any supporting evidence, fails to meet Plaintiff's burden to establish that the rates sought are the prevailing market rates for the Northern District of California.
Additionally, other than Riley's conclusory assertion that the rates charged "are comparable to rates for specialized litigation law firms, and [his] personal rate [of $450 per hour] is comparable to the rates of law firm partners who practice in specialized litigation, " Riley Decl. ¶ 5, Plaintiff offers no information or documentation justifying the rates requested, such as the curriculum vitae, resume, or even the identities of the individuals who worked on this case. As such, the Court cannot determine the comparable skill, experience, and reputation of the attorneys involved. Davis, 976 F.2d at 1546. There is no indication whether the unidentified independent "research attorney" who allegedly worked on this case is admitted to practice law in California and, if so, when he or she was admitted to practice. Nor has Plaintiff provided a description of the individual's educational background or litigation experience. Further, there is no evidence that the independent research attorney actually worked on the case. The chart describing the services rendered and hours billed shows entries for only Riley, a paralegal, an administrative assistant, and an unknown individual with the initials "ASC." Riley Decl., Ex. 1. There are no time entries for "RSA, " the independent research attorney. See id. Finally, Plaintiff provides no information or evidence as to the identity of "ASC, " an individual who billed time on the case, and whether "ASC" is an attorney or a staff member. See Riley Decl. ¶ 7.
Accordingly, the Court concludes that Plaintiff has failed to carry its burden to demonstrate that the requested fee award is reasonable.
Section 605 requires that the court award "full costs... to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii); see 47 U.S.C. § 553(c)(2)(C) (A court may "direct the recovery of full costs... to an aggrieved party who prevails."). Plaintiff seeks $1, 116.88 in costs, including: (1) $650 for investigative expenses; (2) $18.66 for courier charges; (3) $350 for the complaint filing fee; (4) $8.22 for photocopying charges; and (5) $90 for service of process charges. Riley Decl. Ex. 1. Plaintiff, however, provides no authority for the recovery of its investigative fees, and courts have refused to award pre-filing investigation fees to the prevailing party. See, e.g., Joe Hand Promotions Inc. v. Piacente, No., Case No. C-10-3429 CW (JCS), 2011 U.S. Dist. LEXIS 60676, at *25-26 (N.D. Cal. April 11, 2011); J & J Sports Productions, Inc. v. Schrader Restaurant Corp., 485 F.Supp.2d 422, 424 (S.D.N.Y. 2007). Further, Plaintiff provides no documentation to support the amount sought for the courier charges and the photocopying charges. Accordingly, the Court will only allow reimbursement for costs in the amount of $440, which consists of the $350 filing fee and the $90 Plaintiff requests for service of process charges. See Civ. L.R. 54-3 (An award of costs may include the clerk's filing fee and fees for service of process "to the extent reasonably required and actually incurred.").
For the reasons discussed above, Plaintiff's Motion for Attorneys' Fees and Costs is GRANTED IN PART AND DENIED IN PART. Plaintiff's request for attorneys' fees is DENIED. Plaintiff's request for costs for $350.00 for the complaint filing fee and $90 for the service of process charges is GRANTED. Plaintiff's request for costs for investigative expenses, courier charges, and photocopying charges is DENIED.
Plaintiff may submit additional documentation supporting its request for attorneys' fees by no later than seven (7) days from the date this Order is filed. The Court warns Plaintiff that the failure to timely file additional documentation addressing the deficiencies discussed above will result in the denial of its request for attorneys' fees with prejudice.
IT IS SO ORDERED.