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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 J & J Sports Productions Incorporated, Plaintiff, 9 10 ORDER v. 11 No. CV-13-00921-PHX-DGC Ismael Ibarra Macia, et al., 12 Defendants. 13 Plaintiff has moved for costs in the amount $1,392.40 and attorney’s fees in the 14 amount of $2,328.75. Doc. 17. No response has been filed. The Court will grant the 15 motion in part. 16 This case was a civil action brought pursuant to the Communications Act of 1934, 17 as amended, 47 U.S.C. § 605 et seq., and the Cable & Television Consumer Protection 18 and Competition Act of 1992, as amended, 47 U.S.C. § 553, et seq. Doc. 16. Plaintiffs 19 were awarded a default judgment on January 13, 2014. Doc. 16. 20 Under the Communications Act of 1934, the Court “shall direct the recovery of 21 full costs, including awarding reasonable attorneys’ fees to an aggrieved party who 22 prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). Pursuant to Local Rule 54.2, a party seeking to 23 recover attorney’s fees must file and serve a motion that includes a discussion of: (1) the 24 statutory or contractual authority for eligibility for attorneys’ fees; (2) factors entitling the 25 party to attorneys’ fees; and (3) the reasonableness of the requested award. LRCiv 26 54.2(c). The memorandum should be supported by the following documentation: (1) 27 statement of consultation; (2) fee agreement; (3) itemized statement of fees and expenses; 28 and (4) an affidavit of moving counsel. LRCiv 54.2(d). 1 With respect to costs, Local Rule 54.1(a) directs prevailing parties seeking costs to 2 “include a memorandum of the costs and necessary disbursements, so itemized that the 3 nature of each can be readily understood, and, where available, documentation of 4 requested costs in all categories must be attached.” LRCiv 54.1(a). 5 I. Attorneys’ Fees. 6 Rule 54.2(d) describes the requirements for supporting documentation for requests 7 for attorneys’ fees, including the statement of consultation that must be included. 8 Plaintiffs have not attached a statement of consultation to their motion here. It is, 9 therefore, unclear whether any such consultation occurred. Defendants, however, have 10 failed to appear in this case, and the Court will, therefore, consider the motion despite 11 Plaintiff’s failure to adhere to Local Rule 54.2(d). 12 There are, nevertheless, serious problems with the time-based itemized statement 13 of fees submitted by Plaintiff. The rule requires that all time entries for legal research 14 “identify the specific legal issue researched and, if appropriate, should identify the 15 pleading or document the preparation of which occasioned the conduct of the research. 16 Time entries simply stating ‘research’ or ‘legal research’ are inadequate and the court 17 may reduce the award accordingly.” LRCiv 54.2(e)(2)(B). 18 There are numerous such entries in Plaintiff’s itemized logs. Additionally, 19 Plaintiff seeks to recover $547.50 in fees for work done by an administrative assistant. 20 Doc. 17-3 at 8. Although some of this work may have been substantive legal work under 21 a lawyer’s supervision, most of the work is secretarial in nature. Secretarial or clerical 22 work is not properly included in an award of attorneys’ fees. See J & J Sports Prods., 23 Inc. v. Mosqueda, CV-12-00523-PHX-DGC, 2013 WL 5336848 (D. Ariz. Sept. 24, 24 2013); Schrum v. Burlington N. Santa Fe Ry. Co., No. CIV 04-0619, 2008 WL 2278137, 25 at *12 (D. Ariz. May 30, 2008). The Court is particularly reluctant to award fees for this 26 work, as many of Plaintiff’s itemized time entries appear to be a lawyer’s review or 27 duplication of the administrator’s tasks. The Court has admonished Plaintiff for many of 28 these same shortcomings in motions for attorney’s fees in other cases. See Mosqueda, -2- 1 2013 WL 5336848. The Court will, therefore, reduce the fees requested by the amount 2 that Plaintiff seeks for time spent by the administrative assistant. The Court, in its 3 discretion, will award attorney’s fees of $1,781.25. 4 II. 5 Costs. The statute entitles Plaintiff to “the recovery of full costs.” 47 U.S.C. 6 § 605(e)(3)(B)(iii). That provision has been interpreted as including even non-taxable 7 investigator costs. Kingvision Pay-Per-View Ltd. v. Autar, 426 F. Supp. 2d 59, 67 8 (E.D.N.Y. 2006) (“the ‘full costs’ permitted under § 605(e)(3)(B)(iii) both differ from, 9 and can exceed, the ‘taxable costs’). 10 Even though the court has the power to direct the recovery of investigative fees, it 11 is not required to do so. Id. (citing Int’l Cablevision, Inc. v. Noel, 982 F. Supp. 904, 918 12 (W.D.N.Y.1997)). Rather, “[i]n order to recover investigative costs a plaintiff must make 13 a showing similar to that required to recover attorneys’ fees,” and the movant “must 14 document (1) the amount of time necessary for the investigation; (2) how much the 15 investigators charged per hour; [and] (3) why the investigators are qualified to demand 16 the requested rate.” Id. (internal cites and quotes omitted). 17 Plaintiff has provided no supporting documentation for the reasonableness of the 18 $625 in investigative fees requested, has not identified the hourly rate for the 19 investigator(s) used, and has not even identified the investigator(s), much less described 20 their qualifications. The Court will not award costs for these investigative services. 21 IT IS ORDERED that Plaintiff's motion for award of costs and attorneys’ fees 22 (Doc. 17) is granted in part and denied in part. $585.00 is awarded for costs attributed 23 to clerk’s fees and fees for service of summons and subpoena, but Plaintiff may not 24 recover investigative fees. Plaintiff is awarded $1,781.25 in attorneys’ fees. 25 Dated this 29th day of July, 2014. 26 27 28 -3-

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