J & J Sports Productions Incorporated v. Rubio et al

Filing 48

ORDER granting in part 42 Motion for Attorney Fees. Signed by Senior Judge David G Campbell on 4/9/2019.(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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J & J Sports Productions, Inc.,
Plaintiff,

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v.

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No. CV-17-1026-PHX-DGC
CV-17-1321-PHX-DGC
(Consolidated)

Arturo Rubio, an individual; J.R.R.
Restaurant, LLC, d/b/a Filiberto’s Mexican
Food,

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ORDER

Defendants.

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The Court granted summary judgment against Defendants Arturo Rubio and J.R.R.

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Restaurant, LLC for violations of 47 U.S.C. § 605 and awarded $6,700 in damages to

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Plaintiff J & J Productions, Inc. Doc. 41. Plaintiff has filed a motion for attorneys’ fees

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and non-taxable expenses. Doc. 42. The motion is fully briefed, and oral argument has

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not been requested. Docs. 46, 47. The Court will grant the motion in part.

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I.

Legal Standard.

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A party requesting an award of attorneys’ fees must show that it is (a) eligible for

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an award, (b) entitled to an award, and (c) requesting a reasonable amount. See LRCiv

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54.2(c). Section 605 provides that the Court “shall direct the recovery of full costs,

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including reasonable attorneys’ fees to an aggrieved party who prevails” under the statute.

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47 U.S.C. § 605.

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To determine the reasonableness of requested attorneys’ fees, federal courts

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generally use the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989);

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United States v. $186,416.00 in U.S. Currency, 642 F.3d 753, 755 (9th Cir. 2011). The

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Court must determine the initial lodestar figure by taking a reasonable hourly rate and

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multiplying it by the number of hours reasonably expended on the litigation. Blanchard,

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489 U.S. at 94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court then

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“determines whether to modify the lodestar figure, upward or downward, based on factors

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not subsumed in the lodestar figure.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir.

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2016). “These factors are known as the Kerr factors.” Stetson v. Grissom, 821 F.3d 1157,

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1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.

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1975)).

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II.

Discussion.

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Plaintiff was represented by the Law Offices of Thomas P. Riley, P.C. in this matter

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and requests $12,019 in attorneys’ fees and $1,250 in investigative costs. This amount

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represents $3,090 for 6.18 hours of work by Mr. Riley at $500 per hour; $6,300 for 21

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hours of work by a research attorney at $300 per hour; $2,629 for 26.29 hours of work by

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an administrative assistant at $100 per hour; and $1,250 for two investigative expenses.

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Docs. 42 at 1,3; 42-2 at 4, 17.

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A.

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Defendants assert that Plaintiff’s counsel has not provided “convincing

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documentation to support its assertion that the rates charged are reasonable specifically in

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this jurisdiction.” Doc. 46 at 7. Reasonable hourly rates are determined “by the rate

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prevailing in the community for similar work performed by attorneys of comparable skill,

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experience, and reputation.” Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895,

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908 (9th Cir. 1995) (internal quotation marks omitted).

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approximately 25 years of experience specializing in commercial broadcast, licensing

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rights, and satellite agreements, and his research attorney has practiced law for over 24

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years. Doc. 42-2 at 3. Mr. Riley’s declaration states that he and his research attorney are

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among only a handful of attorneys who specialize in civil prosecution of commercial signal

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piracy claims on behalf of promoters and closed-circuit distributors of major sporting

Attorneys’ Fees.

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Plaintiff’s counsel has

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events. Id. Plaintiff also cites several cases from this district showing that his and his

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employees’ billing rates are within the range of reasonable rates in Phoenix. See Doc. 42-

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Plaintiff has met its initial burden of showing the charged rates are reasonable, and

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Defendants offer no contrary evidence. The Court will not reduce counsel’s hourly rates

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for this reason. See Chaudhry v. City of L.A., 751 F.3d 1096, 1110-11 (9th Cir. 2014); see,

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e.g., Massage Envy Franchising LLC v. Doc Marketing LLC, No. CV-15-02129-PHX-

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DLR, 2016 WL 5464594, at *2 (D. Ariz. Sept. 29, 2016) (partners’ hourly billing rates of

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$495, $589, and $639.60 reasonable for seeking injunctive relief and compliance with

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settlement agreement); Alliance Labs, LLC v. Stratus Pharms., Inc., No. 2:12-cv-00927

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JWS, 2013 WL 3298162, at *3 (D. Ariz. July 1, 2013) (finding $520 hourly median partner

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rate and $330 hourly median associate rate reasonable for work on motion to compel).

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Defendants challenge the total amount of Plaintiff’s requested fees for lack of

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contemporaneous billing records. Doc. 46 at 5. Generally, fees are not compensable if the

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attorneys failed to maintain time records contemporaneously.

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Coalition v. Brewer, No. CV 12-02546-PHX-DGC, 2018 WL 6448395, at *7 (D. Ariz.

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Dec. 10, 2018) (citing Hensley v. Eckerhart, 461 U.S. 424, 438 n.13 (1983) (affirming

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thirty percent reduction for lack of contemporaneous time records)); New York State Assoc.

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for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Lawyers must keep

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records of work performed and time expended. It is not enough to recreate the records

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from documents, calendars, and other extrinsic evidence. Kottwitz v. Colvin, 114 F. Supp.

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3d 145, 150 (S.D.N.Y. 2015).

See Ariz. Dream Act

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Plaintiff’s motion and reply concede that the billing records were not created

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contemporaneously with work performed. Docs. 42-1 at 6; 47 at 4. Mr. Riley’s declaration

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states that his firm’s “[b]illable hours for legal services rendered [were] reconstructed by

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way of a thorough review of the files themselves. [And that having] handled thousands of

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commercial signal piracy files over the last decade and a half, [the firm is] most capable of

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calculating billable hours for legal services rendered.” Doc. 42-2 at 6.

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Because Plaintiff’s time records were improperly created after the work was

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performed, it is impossible for the Court to determine the accuracy of the entries. The

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Court will not credit after-the-fact records and will accordingly reduce Plaintiff’s requested

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fees by 50%. See Hensley, 461 U.S. at 438 n.13; Gates v. Deukmejian, 987 F.2d 1392,

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1399 (9th Cir. 1992); Ariz. Dream Act Coalition, 2018 WL 6448395, at *8.

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Defendants assert several other bases for reducing the requested amount: Plaintiff’s

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fees are disproportionate to the $6,700 of damages awarded; Plaintiff failed to engage in

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good faith settlement discussions; the requested amount incentivizes defendants in § 605

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cases to default; and Plaintiff has filed thousands of similar cases. Doc. 46 at 2-10.

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Defendants also argue the Court should award only about 5% of the requested fees,

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proportionate to the awarded damages when compared to those sought. Id. at 3. After

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considering Defendants’ arguments and Plaintiff’s time entries, the Court finds the

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requested fees otherwise reasonable and declines to further reduce the award. The Court

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cannot accept Defendants’ arguments that the number of cases Plaintiff pursues to protect

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its statutory interests, nor Plaintiff’s counsel’s advocacy and refusal to settle, justify a 95%

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reduction. Defendants cite no authority for such a proposition.

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B.

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Defendants challenge Plaintiff’s request for $1,250 for two charges of $625 spent

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on its investigator. Docs. 42 at 3; 42-2 at 22-23; 46 at 7. Investigative costs are not

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attorneys’ fees, and Plaintiff does not contend that it obtained prior court approval to tax

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its investigator fees or expenses pursuant to Local Rule 54.1(e)(10). See J & J Sports

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Prods., Inc. v. Mosqueda, No. CV-12-00523-PHX-DGC, 2013 WL 5336848 (D. Ariz.

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Sept. 24, 2013). Rather, Plaintiff appears to seek these fees under § 605. See Doc. 42 at

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2-3. The only authority from this district that Plaintiff cites is a one-page order awarding

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Plaintiff’s counsel all requested attorneys’ fees and costs without explanation, including

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investigative expenses. See J & J Sports Prods., Inc. v. Jimenez, 16-cv-01214-JJT at

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Doc. 23.

Investigator Fees.

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Courts are split on whether investigative fees are recoverable under § 605, which

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provides that the court “shall direct the recovery of full costs, including awarding

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reasonable attorneys’ fees to an aggrieved party who prevails.” See J&J Sports Prods.,

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Inc. v. Gonzalez, No. 1:17-cv-00678-CL, 2018 WL 1515097, at *3 (D. Or. Feb. 14, 2018)

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(citing cases); 47 U.S.C. § 605(e)(3)(B)(iii). In Kingvision Pay-Per-View Ltd. v. Autar,

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426 F. Supp. 2d 59, 67 (E.D.N.Y. 2006), the court held that recoverable “full costs” in

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§ 605(e)(3)(B)(iii) exceeded the types of “taxable costs” listed elsewhere in the statute

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because full costs include attorneys’ fees, not a listed taxable cost. The court also reasoned

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that the legislative history of § 605 supported an aggrieved party’s ability to recover

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investigative fees. 426 F. Supp. At 67.

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The Autar court held that to “recover investigative costs a plaintiff must make a

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showing similar to that required to recover attorneys’ fees . . . [documenting] (1) the

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amount of time necessary for the investigation; (2) how much the investigators charged per

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hour; [and] (3) why the investigators are qualified to demand the requested rate.” Id.

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(internal quotations and citation omitted); see also Kingvision Pay-Per-View Ltd. v.

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Lalaleo, 429 F. Supp. 2d 506, 511 (E.D.N.Y. 2006) (same).

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Some courts have followed the Autar approach. See Joe Hand Promotions, Inc. v.

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Upstate Recreation, No. 6:13-2467-TMC, 2015 WL 685461, at *9 (D. S.C. Feb. 18, 2015)

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(not awarding fees where plaintiff provided no detail about $450 investigative fee). Others

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have awarded investigative costs without requiring this showing. See Gonzalez, 2018 WL

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1515097, at *3; J&J Sports Prods., Inc. v. Paz-Padilla, No. 3:12-cv-02228-GPC-WMC,

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2013 WL 6002872, at *1 (S.D. Cal. Nov. 12, 2013); cf. Joe Hand Promotions, Inc. v.

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Pollard, No. CIV S-09-03155 MCE DAD, 2010 WL 2902343 at *5 (E.D. Cal. July 22,

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2010) (without discussion, declining to award investigator fees because the amounts were

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not adequately documented). And still others have found investigative fees unrecoverable.

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See J&J Sports Prods., Inc. v. Brummell, No. 15cv2601-MMA (MDD), 2016 WL 4595140,

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at *2 (S.D. Cal. Sept. 2, 2016) (“district courts in California continue to conclude that a

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plaintiff in [a § 605 case] should not recover investigative fees, particularly when the

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request for fees is insufficiently supported”); Garden City Boxing Club, Inc. v. Conway,

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No. 06 Civ. 3145(BSJ)(HBP), 2009 WL 125434, at *5 (S.D.N.Y. Jan. 20, 2009) (finding

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statute unclear about whether investigator fees were recoverable and noting insufficient

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evidence of the reasonableness of the fees, citing Autar).

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The Court is persuaded by the reasoning in Autar, and its requirement that a § 605

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plaintiff cite evidence of the basis for and reasonableness of investigative fees sought,

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including time spent on the investigation and the investigator’s hourly rate and

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qualifications justifying the charged rate. See Autar, 426 F. Supp. 2d at 67. Plaintiff’s

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motion contains only two invoices that appear to be redacted. One, dated May 23, 2016,

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includes an itemized charge for $625, but the total reads $1,275. Doc. 42-2 at 22. The

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other, dated June 16, 2016, has only one itemized charge for $625. Doc. 42-2 at 23. Neither

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invoice includes information about hours spent on the investigation or the investigator’s

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hourly rate. Nor does Plaintiff’s motion otherwise explain the reasonableness of these

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requested fees. Docs. 42, 47. Given insufficient evidence regarding the basis for and

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reasonableness of these costs, the Court will not award the investigative charges.

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C.

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Plaintiff’s Bill of Costs seeks $800 in filing fees, $351 in service of summons fees,

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and $70 in pro hac vice fees. Doc. 43. Fees for admission pro hac vice are not taxable.

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See LRCiv 54.1(e). The Court will award $1,151 in taxable costs.

Taxable Costs.

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IT IS ORDERED that Plaintiff’s motion (Doc. 42) is granted in part as set forth

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above. Defendants are ordered to pay $6,009.50 in attorneys’ fees and $1,151 in taxable

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costs to Plaintiff.

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Dated this 9th day of April, 2019.

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