Aronson v. Dog Eat Dog Films, Inc.

Filing 54

ORDER granting 30 Defendant's Motion for Attorney Fees in the sum of $31,430, costs in the sum of $697, and statutory award of $10,000 by Judge Karen L Strombom.(TW)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I. INTRODUCTION On August 31, 2010 this Court awarded the Defendant its attorneys' fees and costs v. DOG EAT DOG FILMS, INC., Defendant. KEN ARONSON, Plaintiff, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. C 10-5293 ORDER AWARDING ATTORNEYS' FEES AND COSTS 18 incurred in connection with its Special Motion to Strike Plaintiff's Claims of Misappropriation of 19 Likeness and Invasion of Privacy. ECF No. 23. Defendant subsequently filed its Motion for 20 Attorneys' Fees and Costs under RCW 4.24.525. ECF No. 30. Plaintiff filed his Response (ECF 21 No. 36) and Defendant filed its Reply (ECF No. 40). 22 23 24 Order Awarding Attorneys' Fees and Costs 1 1 2 II. BACKGROUND Ken Aronson commenced this action against Defendant asserting that the inclusion of a 3 song and video in Michael Moore's documentary film, Sicko, without Aronson's authorization 4 infringed his exclusive copyright to his video and song. The Plaintiff also asserted two state law 5 claims: invasion of privacy and misappropriation of likeness. The Defendant filed its special 6 motion to strike on June 11, 2010. ECF No. 15. The undersigned concluded that the state law 7 claims for invasion of privacy and misappropriation of likeness are based on conduct that is 8 protected by the Anti-SLAPP Act and granted the Defendant's motion. The Court also awarded 9 reasonable attorneys' fees and costs, as directed by R.C.W. 4.24.525. ECF No. 23. 10 The Defendant now requests attorneys' fees of $46,965, costs of $697.80 and the $10,000 11 authorized by statute. 12 The Plaintiff requests this Court deny Defendant's motion for the following reasons: 13 (1) it seeks to profit from misrepresentations the defendant made to Plaintiff and the Court; (2) it 14 seeks to impose retroactive penalties for a complaint that was filed before the Anti-SLAPP 15 legislation became effective; and (3) it relies on insufficient evidence and requests an 16 unreasonable amount for fees and costs for a single motion. Alternatively, the Plaintiff requests 17 this Court stay any penalties under the statute until Plaintiff's pending appeal before the 9th 18 Circuit Court of Appeals is resolved. ECF No. 36. 19 20 III. DISCUSSION The undersigned has already made the determination that the Defendant is entitled to an 21 award of reasonable attorneys' fees and costs. ECF No. 31. In the Order Granting Defendant's 22 Special Motion to Strike Plaintiff's Claims of Misappropriation of Likeness and Invasion of 23 Privacy this Court ordered as follows: "Defendant is awarded its reasonable attorneys fees and 24 Order Awarding Attorneys' Fees and Costs 2 1 costs incurred in presenting this motion and the statutorily prescribed amount of ten thousand 2 dollars." (emphasis added). ECF No. 31, p. 17. The sole purpose of the motion before the 3 Court is for the Court to make a determination as to the "amount" of the reasonable attorneys' 4 fees and costs that shall be awarded. 5 The first two reasons raised by the plaintiff do not address the amount to be awarded. 6 This Court will, however, address each of the objections raised by the Plaintiff. 7 Alleged Misrepresentation. In a May 18, 2010 letter to plaintiff's counsel, defense 8 counsel advised he was getting married next week, then going on a honeymoon to New Zealand 9 and would be back in his office on June 7, 2010. ECF No. 37, p. 19. The purpose of the letter 10 was to request an extension of time to file an answer and any motions related to the complaint to 11 June 9, 2010. Counsel so stipulated and the undersigned issued an order based on the parties' 12 stipulation. ECF No. 12. Neither of the parties, however, disclosed the reason for the stipulation 13 to the Court. The Defendant filed his Answer on June 9, 2010 and his motion to strike pursuant 14 to the anti-SLAPP statute was filed on June 11, 2010. 15 Counsel for plaintiff now asserts that the time sheets submitted by defense counsel show 16 he was in fact working on the case during the time he said he would be out of the office. Based 17 on that, counsel also asserts that "the representation was false, or was a calculated 18 misrepresentation aimed at abusing the legislative and judicial process: as the defendant knew 19 by drafting it, the Washington Anti-SLAPP ("the ACT") was not effective until June 10, 2010." 20 ECF No. 36, pp. 3 4. Counsel then states that the "defendant was furiously working to apply 21 its legislation to this case when it represented that it needed a continuance because its lead 22 counsel would be out of the country." Id. at p. 4. 23 24 Order Awarding Attorneys' Fees and Costs 3 1 On the other hand, counsel for the defendant affirms he got married on May 22, 2010, 2 went to New Zealand on May 23, 2010 for his honeymoon, returned to New York on June 2, 3 2010 and returned to his office in Seattle on June 7, 2010. ECF No. 41, p. 2. 4 A review of the billing records show entries for "B. Johnson" on May 26, 27, 28, June 1, 5 3, 4, and 6, 2010. ECF No. 31, pp. 44 47. 6 However, it is not clear that extending the date for filing an answer to June 9, 2010, the 7 day before the legislation became effective, made any difference regarding the posture of this 8 case. The answer was filed on June 9, 2010 which was the day before the effective date of the 9 anti-SLAPP legislation. Without any stipulation, the answer would still have been due before the 10 effective date of the legislation. The timing of the answer had no impact. In addition, R.C.W. 11 4.24.525 permits the filing of a special motion within 60 days of service of the complaint. The 12 complaint was served on April 29, 2010. ECF No. 37, p. 17. The motion was filed on June 11, 13 2010 within 60 days of service. If there was any misrepresentation by defense counsel, it had 14 no impact with regard to the applicability of the new legislation and does not form the basis for 15 denial of attorneys' fees and costs. 16 Retroactive Penalty. The Plaintiff asserts, for the first time, that the new legislation 17 imposes retroactive penalties. The Court notes that the Plaintiff, in his response to the 18 Defendant's special motion to strike, also sought to recover attorneys' fees and costs pursuant to 19 the authorization contained in the anti-SLAPP legislation. In addition, and as noted above, this 20 Court already ordered reasonable attorneys' fees. The sole purpose of this motion is to 21 determine the amount. 22 23 24 Order Awarding Attorneys' Fees and Costs 4 1 Calculation of Reasonable Attorneys' Fees. The Washington courts use the lodestar 2 approach to fee calculation. To calculate a lodestar amount, a court multiplies the number of 3 hours reasonably expended by the reasonable hourly rate. Bowers v. Transamerica Title Ins. 4 Co., 100 Wash. 2d 581, 597, 675 P. 2d 193 (1983). After calculating a lodestar fee, the court 5 may consider whether the lodestar should be adjusted to reflect factors not already taken into 6 consideration. Bowers, supra, at p. 598-99. 7 The plaintiff objects to an award of attorneys' fees on the grounds that the Defendant has 8 provided insufficient evidence to support the amount requested and that the amount requested is 9 unreasonable. In support of his position, the Plaintiff asserts that only a small portion (28.6%) of 10 the Defendant's motion to strike related to the anti-SLAPP Act and that the balance related to the 11 underlying claims. 12 The Defendant, on the other hand, asserts that research and briefing of the state law 13 claims was paramount to showing that the Plaintiff could not meet his burden of establishing by 14 clear and convincing evidence the likelihood of prevailing on the state claims. 15 The Court agrees with the Defendant in this regard. The Court could not have rendered a 16 decision regarding the applicability of the anti-SLAPP legislation without also determining 17 whether the Plaintiff could demonstrate "by clear and convincing evidence a probability of 18 prevailing on the merits of his state law claims of invasion of privacy and misappropriation of 19 likeness." ECF No. 23, p. 9. Based on this evaluation, it is clear to the Court that the briefing 20 submitted by the Defendant was all related to the special motion to strike. 21 22 23 24 Order Awarding Attorneys' Fees and Costs 5 1 Reasonable Hourly Rate. The Defendant provided evidence that the hourly rates 2 requested by defense counsel are reasonable within the legal community. The Court notes that 3 the Plaintiff does not dispute the reasonableness of the hourly rates of defense counsel. The 4 Court therefore finds the hourly rates requested by the defendant represent reasonable hourly 5 rates based on the experience and expertise of counsel. Specifically, the Court finds that the 6 following rates to be reasonable: Bruce E. H. Johnson - $505/hour; Noelle Kvasnosky 7 $265/hour; and Jennifer Chermoshnyuk - $175/hour. 8 The Court notes that the defendant requested an award of attorneys fees based on what 9 they characterized as a "blended" hourly rate. The Court declines that invitation and will follow 10 the old fashioned method of awarding fees based on the individuals hourly rate as that is the rate 11 which adequately identifies experience, skill and expertise. 12 Reasonable Number of Hours. In determining the reasonable number of hours, the 13 Court may exclude those hours that are excessive, redundant, or otherwise unnecessary. The 14 Court reviewed the number of hours spent on research, strategy & analysis as well as preparation 15 of the written motion. Based on that review, it appears that some time was spent unnecessarily, 16 was used inefficiently or was related to the case as a whole as opposed to being in connection 17 with the special motion. Examples include a various entries in May in which relatively small 18 amounts of time were frequently expended regarding strategy and analyzing a motion to strike; 19 obtaining copies of the video which would be related to the case as a whole and not just the 20 special motion; and spending time on legal analysis in anticipation of what the reply brief might 21 argue. Based on its review, the Court finds that the reasonable numbers of hours are as follows: 22 Bruce Johnson 17 hours; Noelle Kvasnosky 70 hours; and Jennifer Chermoshnyuk 25 23 hours. 24 Order Awarding Attorneys' Fees and Costs 6 1 Amount of Lodestar Attorneys' Fees Awarded. Based on the above findings, the 2 Court AWARDS reasonable attorneys' fees to the Defendant in the sum of $31,430. 3 Upward or Downward Adjustment. After calculating a lodestar fee, the court may 4 consider whether the lodestar should be adjusted to reflect factors not already taken into 5 consideration. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 598-99 (1983); Allard v. 6 First Interstate Bank of Wash., 112 Wn.2d 145, 149 (1989). The Court notes that the Defendant 7 is not requesting an adjustment of fees beyond the lodestar calculation. In addition, the lodestar 8 calculation takes many of the relevant factors into account, and after reviewing those remaining 9 factors not subsumed by the lodestar, the Court concludes that no departure from the lodestar is 10 warranted or necessary. 11 12 COSTS The Defendant requests costs in the sum of $697.00. The Plaintiff has filed no opposition 13 to this amount. The Court therefore AWARDS Defendant its costs in the sum of $697.00. 14 15 STATUTORY AWARD R.C.W. 4.24.525 states that the court "shall" award "[a]n amount of ten thousand dollars, 16 not including the costs of litigation and attorney fees" to the prevailing party. The Defendant is 17 the prevailing party. The Court therefore AWARDS Defendant the additional sum of 18 $10,000.00. 19 20 REQUESTED STAY Finally, the Plaintiff requests this court stay an award of attorneys' fees, costs and 21 statutory award until his appeal has been resolved. The authority for this "stay" is Fed. R. Civ. 22 P. 62(c). This civil rules relates to an order or judgment "that grants, dissolves, or denies an 23 24 Order Awarding Attorneys' Fees and Costs 7 1 injunction." This court has not issued such an order and therefore finds that this civil rule is not 2 applicable. The request for a stay is DENIED. 3 4 CONCLUSION The Court AWARDS the Defendant attorneys' fees in the sum of $31,430, costs in the 5 sum of $697, and the statutory award of $10,000. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Order Awarding Attorneys' Fees and Costs 8 Dated this 16th day of November, 2010. A Karen L. Strombom United States Magistrate Judge