AMA Multimedia LLC v. Sagan Limited et al

Filing 142

ORDER denying #133 Motion for Attorney Fees. Signed by Judge David G Campbell on 4/24/2017.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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AMA Multimedia LLC,
Plaintiff,

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ORDER

v.

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No. CV-16-01269-PHX-DGC

Sagan Limited, et al.,

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Defendants.

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The Court dismissed this case because Plaintiff AMA Multimedia LLC is bound

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by the forum selection clause of the Content Partner Revenue Sharing Agreement

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(“CPRA”). Doc. 126. Defendants Sagan, Ltd., Cyberweb Ltd., Netmedia Services, Inc.,

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GLP 5, Inc., and David Koonar (collectively “Defendants”) now seek an award of nearly

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$860,000 in attorneys’ fees and costs. Doc. 133. The Court will deny the motion.1

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The Court’s local rules require parties to identify the authority under which they

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seek to recover attorneys’ fees. LRCiv. 54.2(c)(1)-(2). Defendants seek an award of fees

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under § 10.5 of the CPRA. Doc. 133-1 at 4. The Court concludes, however, that

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Defendants have not carried their burden of showing that they are entitled to fees under

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this provision.

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The parties’ request for oral argument is denied because the issues are fully
briefed and oral argument will not aid in the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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Section 10.5 provides that it “shall be governed by and construed in accordance

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with the laws of Barbados.” Doc. 27-3 at 30, § 10.5. Indeed, Defendants obtained

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dismissal of this case by arguing that it must be litigated in Barbados. In their motion for

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fees and their and reply, however, Defendants cite no Barbados law regarding contractual

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attorneys’ fees provisions like § 10.5. They cite no law to show that such provisions are

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enforceable under Barbados law. Nor do they provide any Barbados authority on the

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various issues addressed in the parties’ briefing, such as whether this case arose out of the

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CPRA, whether Defendants’ motion to dismiss should be viewed as an “action” as

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required by § 10.5, or what principles should be applied in determining the amount of

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fees to be awarded – the appropriate hourly rate, whether duplicative billing is permitted,

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whether block billing is permitted, and whether the degree of success should be

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considered in arriving at a reasonable fee amount. Defendants cite Ninth Circuit cases on

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some of these points, but they say not a word about the requirements or authorization of

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Barbados law.

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Defendants are entitled to a fee recovery in this case. They have not carried their burden

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of showing that they are.

See Docs. 133, 140.

As a result, the Court cannot conclude that

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The Court notes that it would not be inclined to award anything close to $860,000

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even if Defendants had met their burden. Defendants themselves note that only $127,585

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of their request was incurred in litigating the forum selection issue. Doc. 133-1 at 13.

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They do not dispute that their first few motions to dismiss did not even raise this issue, or

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that those motions necessitated much discovery and motion practice on whether the Court

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had personal jurisdiction – an issue unrelated to enforcement of the forum selection

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clause. And Plaintiffs provide reason to doubt whether Defendants’ claimed $127,585 in

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fees represents a reasonable sum for the forum selection dispute. But the Court need not

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decide these issues. Defendants vigorously asserted that this case was to be resolved in

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Barbados courts under Barbados law, and yet have made no showing that Barbados law

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would permit them to recover the fees and costs they seek.

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IT IS ORDERED that Defendants’ motion for attorneys’ fees (Doc. 133) is
denied.
Dated this 24th day of April, 2017.

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