United States District Court, S.D. California
ORDER GRANTING IN PART MOTION FOR ATTORNEYS' FEES
AND COSTS [Doc. No. 65]
Cathy Ann Bencivengo United States District Judge.
the Court is Plaintiff's motion for attorneys' fees
and costs. [Doc. No. 65.] The motion has been fully briefed
and the Court deems it suitable for determination on the
papers submitted and without oral argument. See S.D.
Cal. CivLR 7.1(d)(1). For the reasons set forth below, the
motion is granted in part.
G & G Closed Circuit Events, LLC initiated this action on
March 2, 2018, alleging violations of 47 U.S.C. §§
605 and 553, conversion, and violation of Cal. Bus. &
Prof. Code § 17200 et seq., against Defendant
David Gonzalez Ruiz individually, and doing business as
Cotija Mex Grill, also known as Cotijas Taco Shop. [Doc. No.
1.] The complaint alleged that Plaintiff was granted the
exclusive domestic commercial distribution rights to the
Golovkin v. Alvarez IBF World Middleweight Championship
Fight Program, which was telecast nationwide on
September 16, 2017. [Id.] Plaintiff alleged that on
September 16, 2017, the program was publicly exhibited at
Defendant's commercial establishment without an agreement
with Plaintiff and that Defendant as sole proprietor was
responsible for the unauthorized exhibition of the program.
[Id.] On August 28, 2019, at the conclusion of a
three-day jury trial, a jury found that Plaintiff had proved
its claim against Defendant for violation of 47 U.S.C. §
605 and its claim for conversion, the only claims presented
at trial. On the verdict form, the jury awarded Plaintiff
statutory damages of $250 for violation of 47 U.S.C. §
605 and $2, 500 for conversion. [Doc. No. 58.] In accordance
with the jury's verdict, the Court entered judgment for
Plaintiff in the amount of $2, 750 on August 29, 2019. [Doc.
No. 62.] Plaintiff now moves for attorneys' fees in the
amount of $43, 913.20 and costs in the amount of $1, 584.59.
[Doc. No. 65.]
47 U.S.C. § 605, the Court “shall direct the
recovery of full costs, including awarding reasonable
attorneys' fees to an aggrieved party who
prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). In light
of the verdict, there is no dispute that Plaintiff is an
aggrieved party who prevailed and is therefore entitled to
full costs and reasonable attorneys' fees.
the fees, “[c]ourts first apply the lodestar method to
determine a reasonable fee and then may adjust any award up
or down depending on various factors.” J & J
Sports Prods., Inc. v. Paz-Padilla, No.
3:12-CV-02228-GPC, 2013 WL 6002872, at *2 (S.D. Cal. Nov. 12,
2013). “The lodestar is calculated by multiplying the
number of hours the prevailing party reasonably expended by a
reasonable hourly rate.” Id.
“‘Although in most cases, the lodestar figure is
presumptively a reasonable fee award, the district court may,
if circumstances warrant, adjust the lodestar to account for
other factors which are not subsumed within it.'”
Camacho v. Bridgeport, 523 F.3d 973, 978 (9th Cir.
2008) (quoting Ferland v. Conrad Credit Corp., 244
F.3d 1145, 1149 n. 4 (9th Cir. 2001). For example, in limited
circumstances, a district court may apply an across-the-board
percentage to the lodestar figure “as a practical means
of trimming the fat from a fee application.” Gates
v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992)
Plaintiff's counsel spent a total of 126.32 hours divided
among a partner at a rate of $550/hour, a research attorney
at a rate of $300/hour, an administrative assistant at
$110/hour, and counsel's travel time at a rate of
$275/hour. Dividing the total fees sought ($43, 913.20) by
the total number of hours spent (126.32) yields a rate of
$347.63/hour, which the Court finds to be a reasonable
blended rate for this geographic area. In support of
Plaintiff's motion is attached a declaration of
Plaintiff's counsel, a record of the billable hours spent
on this case, a copy of the investigator bill, copies of the
process server bills, and copies of witness fee bills. The
Court finds such documentation sufficient.
makes several unpersuasive arguments in favor of denying
Plaintiff's motion altogether, or in the alternative,
reducing the amount awarded to Plaintiff for attorneys'
fees and costs. While Plaintiff's request for
attorneys' fees may be significantly higher than the
amount of damages awarded, Plaintiff was successful on each
of its claims that proceeded to trial even though Plaintiff
did not obtain the amount of damages it initially sought.
Further, both claims arose out of Defendant's
unauthorized exhibition of the program and were in no way
unrelated as Defendant appears to suggest. There is no merit
to Defendant's contention that the fee award must be
proportional to the degree of success Plaintiff had in
pursuing its claims because as just noted, Plaintiff was
successful on each of its claims. The Court is also not
persuaded by Defendant's contention that a substantial
attorneys' fee award in this case would encourage other
defendants in TV signal piracy cases to ignore lawsuits and
wait for default judgments because they would be better off
financially. In the Court's view a more appropriate
response to such a possibility would be to follow the law
appropriately and avoid facing such a consequence altogether.
Defendant also cannot now claim upon the completion of trial
that Plaintiff forced needless litigation when Defendant
moved for summary judgment in this case disputing liability
and appears to have vigorously defended Plaintiff's
claims on multiple grounds throughout this lawsuit. Had
Plaintiff not prevailed on any of its claims at trial then
this argument would have more merit. Finally, Defendant's
Rule 68 argument is mistaken. “Where a Rule 68 offer
explicitly states that it is inclusive of prejudgment
interest and pre-offer costs and attorneys' fees, the
judgment to which the offer is compared must include these
items if they are awarded.” Champion Produce, Inc.
v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1020 (9th
Cir. 2003). As the Supreme Court has held in Marek v.
Chesny, 473 U.S. 1 (1985), “The critical feature
of [Rule 68] is that the offer . . . allows judgment to
be taken against the defendant for both the damages caused by
the challenged conduct and the costs then
accrued.” 473 U.S. at 6 (emphasis in original).
“A reasonable determination whether to accept the offer
can be made by simply adding [the amount in damages caused by
the challenged conduct and the costs then accrued] and
comparing the sum to the amount offered.” Id.
at 7. Here, Defendant's Rule 68 offer states, “the
total judgment amount, including recoverable costs and
attorneys' fees, which defendant shall be obligated to
pay shall be $6, 000.00.” [Doc. No. 66-2 at 2.] As of
the date of the offer, Plaintiff's total costs and
attorneys' fees exceed $8, 000, and in addition to the
judgment obtained the total of these amounts would exceed
$10, 000. Accordingly, Defendant's Rule 68 offer did not
exceed Plaintiff's judgment amount and costs then
Court is however wary of the fact that Plaintiff's
counsel is well accustomed to these types of cases. As
Plaintiff's counsel states in his declaration he has
“handled thousands of commercial signal piracy files
over the last decade and a half.” [Doc. No. 65-2 at
¶ 6.] Defendant does not refer to any specific items,
but contends that when it comes to pleadings, preparation,
and other documents, that Plaintiff's counsel likely has
several templates in his arsenal that would require minimal
time for a specific case. The Court does not suggest that
each of these cases is identical in all aspects but is
nevertheless concerned about awarding the full amount of fees
requested. After an independent review of Plaintiff's
counsel's billing records and the allocation of hours,
the Court will decrease the requested amount of fees by
fifteen percent in order to account for Plaintiff's
familiarity with commercial signal piracy cases such as this
case. Accordingly, the Court finds it reasonable to award
Plaintiff attorneys' fees of $37, 326.22.
the costs, 47 U.S.C. § 605 instructs that the court
“shall direct the recovery of full costs. .
.” 47 U.S.C. § 605(e)(3)(B)(iii) (emphasis added).
For this language to have any meaning it must include costs
that go beyond those to which Plaintiff would be entitled as
the prevailing party in the absence of this provision. To
that end, Plaintiff seeks costs including investigative
expenses ($650.00), filing fee ($400.00), service of process
fees ($171.70), photocopy charges ($27.89), and investigator
witness fees ($335.00), for a total of $1, 584.59. These
costs are allowed by law and reasonable.
reasons set forth above, it is hereby
ORDERED that Plaintiffs motion for
attorneys' fees and costs is GRANTED in
part and awards Plaintiff $37, ...