Sorrell Holdings LLC v. Infinity Headwear & Apparel, LLC
ORDER awarding attorney's fees and costs. (See Order for specifics.) Signed by Honorable Susan O. Hickey on August 4, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
SORRELL HOLDINGS LLC
Case No. 4:16-cv-4019
INFINITY HEADWARE &
Before the Court is Plaintiff Sorrell Holdings LLC’s Notice Identifying Attorney’s Fees.
(ECF No. 28). Defendant Infinity Headware & Apparel, LLC filed a response in opposition. (ECF
No. 29). The Court finds the matter ripe for consideration.
This case involves allegations of patent infringement in violation of the patent laws of the
United States, as codified in Title 35 of the United States Code. Plaintiff owns United States Patent
No. 6,887,007 (“the ‘007 patent”), entitled “Hand-Held Body Washing Device.” Plaintiff alleges
that Defendant is infringing on the ‘007 patent with its own washing-device products, specifically
its line of MascotWear™ Mascot Bath Loofahs.
On February 26, 2017, Plaintiff filed a motion to compel, asking the Court to compel
Defendant’s complete response to certain discovery requests and requesting fees and costs incurred
in bringing the motion. On March 13, 2017, Plaintiff filed a reply brief in further support of its
motion. On June 28, 2017, the Court granted Plaintiff’s motion to compel and determined that
Plaintiff was entitled to fees and costs pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). 1
The Court’s June 28, 2017 order instructed Plaintiff to file an affidavit documenting the fees and
expenses incurred in bringing the motion to compel, and granted Defendant seven days to file
On July 12, 2017, Plaintiff filed the instant notice, along with the declaration of Plaintiff’s
counsel, a biography of Plaintiff’s counsel, and an excerpt from a 2015 report by the American
Intellectual Property Law Association that lists average hourly billing rates of intellectual property
law attorneys in various regions in 2014. Plaintiff seeks $3,412.50 in attorney’s fees incurred in
preparing its motion to compel and reply brief, and $1,050.00 in fees incurred in preparing the
instant notice and accompanying exhibits, for a total of $4,462.50. On July 19, 2017, Defendant
filed a response, arguing that the number of hours Plaintiff purports to have spent preparing the
motion to compel and reply brief are excessive, and requesting that the Court limit the award of
fees and costs to those hours reasonably spent. Defendant also argues that it should not bear the
responsibility of reimbursing Plaintiff for preparing and filing the exhibits to the instant notice,
because the Court did not order Plaintiff to file them.
Plaintiff seeks $3.412.50 in attorney’s fees incurred in preparing its motion to compel and
reply brief, and $1,050.00 in fees incurred in preparing the instant notice and accompanying
exhibits, for a total of $4,462.50. The Court will first address the fees related to Plaintiff’s motion
to compel and reply brief. The Court will then address the fees related to the instant notice and
If a motion to compel is granted, the court must, “after giving opportunity to be heard, require the party . . . whose
conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).
A. Motion to Compel and Reply Brief
Plaintiff seeks $3.412.50 in attorney’s fees incurred in preparing its motion to compel and
reply brief. Plaintiff states that Plaintiff’s counsel charges an hourly rate of $350/hour. Plaintiff
also states that Plaintiff’s counsel spent 6.75 hours drafting and filing the motion to compel, along
with an accompanying declaration of Plaintiff’s counsel and a proposed order. Plaintiff states
further that Plaintiff’s counsel spent 3.0 hours drafting and filing its reply brief and accompanying
declaration. Thus, Plaintiff seeks reimbursement for 9.75 total hours of legal services, billed at
$350/hour, for a total of $3.412.50. Defendant argues in response that the number of hours
Plaintiff’s counsel purports to have spent preparing these documents is excessive and
unreasonable, and requests that the Court base the award of fees on a reasonable amount of hours.
The starting point in determining attorney fees is the lodestar, which is calculated by
multiplying the number of hours reasonably expended by the reasonable hourly rate. 2 Fish v. St.
Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002). The term “reasonable hourly rate” is usually
defined as the ordinary rate for similar work in the community where the case is litigated. See
Miller v. Dugan, 764 F.3d 826, 831 (8th Cir. 2014). The burden of proving attorney’s fees rests
with the fee applicant. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The party seeking an
award of fees should submit evidence supporting the hours worked and rates claimed. Id. at 433.
When determining reasonable hourly rates, district courts may rely on their own experience and
knowledge of prevailing market rates. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). When
calculating the lodestar, a district court need not accept counsel’s submission of hours as
Courts making a lodestar determination are required to consider twelve factors: (1) time and labor required; (2)
novelty and difficulty of the questions; (3) skill requisite to perform the legal service properly; (4) preclusion of other
employment, due to acceptance of case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of
the professional relationship with the client; and (12) awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424,
430 n.3 (1983).
conclusive but should exclude from that total those hours that were not reasonably expended on
the litigation. Hensley, 461 U.S. at 433-34.
The biography of Plaintiff’s counsel states that he has been a licensed attorney for roughly
eleven years and that his firm specializes in intellectual property litigation, such as patent litigation.
(ECF No. 28-2). As required by Local Rule 54.1, Plaintiff also attached to its notice a declaration
setting out the time spent preparing the motion to dismiss and reply brief. (ECF No. 28-1). The
declaration states that Plaintiff’s counsel’s billable hourly rate is $350/hour. Plaintiff argues that
this rate is consistent with, if not lower than, the rates charged by intellectual property lawyers in
the Texarkana area. Defendant has not objected to Plaintiff’s counsel’s asserted billable hourly
rate. Upon consideration of the local rates of intellectual property lawyers in Texarkana, Arkansas,
the Court finds that the billable rate asserted by Plaintiff’s counsel of $350/hour is reasonable. 3
However, the Court has reviewed Plaintiff’s documentation supporting its claim for fees
and agrees with Defendant that the number of hours purportedly spent preparing and filing the
motion to compel and rely brief are excessive. According to Plaintiff’s counsel, the preparation
of the motion to compel and its accompanying exhibits took 6.75 hours. Likewise, the preparation
of the reply brief and its accompanying exhibit purportedly took 3.0 hours.
Plaintiff’s motion to compel is roughly seven pages long. The motion sets out each of the
four disputed discovery requests and responses thereto in full, and argues that the responses are
deficient because Defendant’s objections were not made with specificity, and/or that Defendant
was required to submit a privilege log for responsive, privileged items. The motion cites primarily
to the Rules of Civil Procedure and cites to two non-binding cases that provide that objections to
Ordinarily, the Court would find that $350/hour is an unreasonable hourly billable rate for legal services in
Texarkana, Arkansas. However, given the complexity of patent litigation, the Court finds that $350/hour is reasonable
in this particular case.
discovery requests must be stated with specificity rather than boilerplate language. The motion is
accompanied by a one-and-one-half page declaration of Plaintiff’s counsel, which states that
Plaintiff’s counsel is a member in good standing of the Texas State Bar and that the exhibits
submitted in support of the motion are true and correct copies of the original documents.
Plaintiff’s reply brief is two pages long. It cites to no legal authority, and cites to a few
filings found in the record. The reply brief argues that Defendant failed to timely raise the issue
of bifurcation and that Plaintiff’s discovery requests are timely under the Court’s Final Scheduling
Order. The reply brief also discusses an email exchange between the parties’ counsel, which was
attached as an exhibit to the reply brief. Specifically, the brief argues that the email exchange
shows that Defendant agreed to supplement certain responses to discovery requests, and that it
failed to do so. The reply brief is accompanied by a one-page declaration of Plaintiff’s counsel,
which states that Plaintiff’s counsel is a member in good standing of the Texas State Bar and that
the exhibit submitted in support of the brief is a true and correct copy of the original document.
After considering the twelve Hensley factors and the circumstances of this case, the Court
finds that it is appropriate to reduce the amount of hours connected with both the motion to compel
and reply brief. The Court finds that 4.5 hours is a reasonable amount of time expended on the
motion to compel, and that 1.5 hours is a reasonable amount of time expended on the reply brief.
Thus, the Court calculates the lodestar amount as follows: 6.0 hours of work billed at $350/hour,
for a total of $2,100.00. Accordingly, the Court finds that Plaintiff is entitled to recover attorney’s
fees in the amount of $2,100.00 related to the preparation and filing of the motion to compel and
B. Instant Notice and Accompanying Exhibits
Without citing to binding authority, Plaintiff seeks $1,050.00 in fees incurred in preparing
the instant notice and accompanying exhibits. Plaintiff argues that but for Defendant’s failure to
completely answer its discovery requests, Plaintiff would not have had to spend time drafting the
motion to compel and subsequently, the instant notice. Plaintiff states that Plaintiff’s counsel
charges an hourly rate of $350/hour, and that Plaintiff’s counsel spent 3.0 hours drafting and filing
the instant notice and supporting declaration. Defendant argues in response that the sought-after
fees are unreasonable.
The Court declines to award Plaintiff fees and costs associated with the preparation of the
instant notice and accompanying exhibits.
Plaintiff does not cite to any binding authority
authorizing an award of fees and costs in similar circumstances, and the Court is unaware of any
such authority. Plaintiff correctly points out that some courts in other jurisdictions authorize the
award of fees and costs incurred in preparing a motion seeking recovery of fees and costs. See
Anderson v. Dir., Office of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996)
(observing in a section 1988 context that “uncompensated time spent on petitioning for a fee
automatically diminishes the value of the fee eventually received”). However, Rule 37 only
explicitly mandates an award of “the movant’s reasonable expenses incurred in making the [motion
to compel].” See Fed. R. Civ. P. 37(a)(5)(A). Courts within the Eighth Circuit appear to be of the
mind that it is within the court’s discretion to award additional fees and costs associated with
preparing a motion seeking Rule 37 fees and costs. See Black v. Pilot Travel Ctrs., LLC, No. 4:09cv-4170-KES, 2011 WL 3421595, at *4 (D.S.D. Aug. 4, 2011) (awarding fees and costs under
Rule 37(a)(5)(A) in connection with a motion to compel but declining to award fees and costs in
connection with the motion seeking Rule 37 fees and costs). The Court agrees with this logic.
Accordingly, the Court will exercise its discretion by declining to award Plaintiff fees and costs
associated with preparing the instant notice and accompanying exhibits.
For the reasons stated above, the Court concludes that reasonable attorney’s fees and costs
incurred in these circumstances are $2,100.00. Accordingly, Plaintiff is awarded $2,100.00
pursuant to Federal Rule of Civil Procedure 37(a)(5)(A).
IT IS SO ORDERED, this 4th day of August, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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