J & J Sports Productions Incorporated v. Macia et al

Filing 18

ORDER, Plaintiff's motion for award of costs and attorneys' fees 17 is granted in part and denied in part; $585.00 is awarded for costs attributed to clerk's fees and fees for service of summons and subpoena, but Plaintiff may not recover investigative fees; Plaintiff is awarded $1,781.25 in attorneys' fees. Signed by Judge David G Campbell on 7/29/14.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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J & J Sports Productions Incorporated,
Plaintiff,

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ORDER

v.

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No. CV-13-00921-PHX-DGC

Ismael Ibarra Macia, et al.,

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Defendants.

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Plaintiff has moved for costs in the amount $1,392.40 and attorney’s fees in the

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amount of $2,328.75. Doc. 17. No response has been filed. The Court will grant the

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motion in part.

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This case was a civil action brought pursuant to the Communications Act of 1934,

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as amended, 47 U.S.C. § 605 et seq., and the Cable & Television Consumer Protection

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and Competition Act of 1992, as amended, 47 U.S.C. § 553, et seq. Doc. 16. Plaintiffs

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were awarded a default judgment on January 13, 2014. Doc. 16.

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Under the Communications Act of 1934, the Court “shall direct the recovery of

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full costs, including awarding reasonable attorneys’ fees to an aggrieved party who

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prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). Pursuant to Local Rule 54.2, a party seeking to

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recover attorney’s fees must file and serve a motion that includes a discussion of: (1) the

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statutory or contractual authority for eligibility for attorneys’ fees; (2) factors entitling the

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party to attorneys’ fees; and (3) the reasonableness of the requested award. LRCiv

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54.2(c). The memorandum should be supported by the following documentation: (1)

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statement of consultation; (2) fee agreement; (3) itemized statement of fees and expenses;

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and (4) an affidavit of moving counsel. LRCiv 54.2(d).

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With respect to costs, Local Rule 54.1(a) directs prevailing parties seeking costs to

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“include a memorandum of the costs and necessary disbursements, so itemized that the

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nature of each can be readily understood, and, where available, documentation of

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requested costs in all categories must be attached.” LRCiv 54.1(a).

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I.

Attorneys’ Fees.

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Rule 54.2(d) describes the requirements for supporting documentation for requests

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for attorneys’ fees, including the statement of consultation that must be included.

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Plaintiffs have not attached a statement of consultation to their motion here. It is,

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therefore, unclear whether any such consultation occurred. Defendants, however, have

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failed to appear in this case, and the Court will, therefore, consider the motion despite

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Plaintiff’s failure to adhere to Local Rule 54.2(d).

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There are, nevertheless, serious problems with the time-based itemized statement

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of fees submitted by Plaintiff. The rule requires that all time entries for legal research

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“identify the specific legal issue researched and, if appropriate, should identify the

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pleading or document the preparation of which occasioned the conduct of the research.

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Time entries simply stating ‘research’ or ‘legal research’ are inadequate and the court

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may reduce the award accordingly.” LRCiv 54.2(e)(2)(B).

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There are numerous such entries in Plaintiff’s itemized logs.

Additionally,

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Plaintiff seeks to recover $547.50 in fees for work done by an administrative assistant.

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Doc. 17-3 at 8. Although some of this work may have been substantive legal work under

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a lawyer’s supervision, most of the work is secretarial in nature. Secretarial or clerical

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work is not properly included in an award of attorneys’ fees. See J & J Sports Prods.,

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Inc. v. Mosqueda, CV-12-00523-PHX-DGC, 2013 WL 5336848 (D. Ariz. Sept. 24,

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2013); Schrum v. Burlington N. Santa Fe Ry. Co., No. CIV 04-0619, 2008 WL 2278137,

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at *12 (D. Ariz. May 30, 2008). The Court is particularly reluctant to award fees for this

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work, as many of Plaintiff’s itemized time entries appear to be a lawyer’s review or

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duplication of the administrator’s tasks. The Court has admonished Plaintiff for many of

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these same shortcomings in motions for attorney’s fees in other cases. See Mosqueda,

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2013 WL 5336848. The Court will, therefore, reduce the fees requested by the amount

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that Plaintiff seeks for time spent by the administrative assistant. The Court, in its

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discretion, will award attorney’s fees of $1,781.25.

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II.

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Costs.
The statute entitles Plaintiff to “the recovery of full costs.”

47 U.S.C.

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§ 605(e)(3)(B)(iii). That provision has been interpreted as including even non-taxable

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investigator costs. Kingvision Pay-Per-View Ltd. v. Autar, 426 F. Supp. 2d 59, 67

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(E.D.N.Y. 2006) (“the ‘full costs’ permitted under § 605(e)(3)(B)(iii) both differ from,

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and can exceed, the ‘taxable costs’).

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Even though the court has the power to direct the recovery of investigative fees, it

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is not required to do so. Id. (citing Int’l Cablevision, Inc. v. Noel, 982 F. Supp. 904, 918

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(W.D.N.Y.1997)). Rather, “[i]n order to recover investigative costs a plaintiff must make

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a showing similar to that required to recover attorneys’ fees,” and the movant “must

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document (1) the amount of time necessary for the investigation; (2) how much the

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investigators charged per hour; [and] (3) why the investigators are qualified to demand

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the requested rate.” Id. (internal cites and quotes omitted).

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Plaintiff has provided no supporting documentation for the reasonableness of the

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$625 in investigative fees requested, has not identified the hourly rate for the

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investigator(s) used, and has not even identified the investigator(s), much less described

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their qualifications. The Court will not award costs for these investigative services.

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IT IS ORDERED that Plaintiff's motion for award of costs and attorneys’ fees

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(Doc. 17) is granted in part and denied in part. $585.00 is awarded for costs attributed

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to clerk’s fees and fees for service of summons and subpoena, but Plaintiff may not

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recover investigative fees. Plaintiff is awarded $1,781.25 in attorneys’ fees.

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Dated this 29th day of July, 2014.

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