Neurovision Medical Products Inc. v. Nuvasive Inc. et al

Filing 228

ORDER AWARDING ATTORNEYS FEES by Judge Manuel L. Real. Fees awarded in favor of Neurovision Medical Products Inc. against Nuvasive Inc. in the amount ofPlaintiff is awarded attorneys fees in the amount of $1,132,899 and additional costs in the amount of $55,151. The clerk previously awarded taxable costs to Plaintiff in the amount of $29,179.70. (Doc. No. 214.) Therefore, the Court hereby orders the clerk to fill in the amount of $1,217,229.70 on the blank line on page 2, line 25 of the Judgment (Doc No. 187). (lc)

1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11
12
13

NEUROVISION MEDICAL
PRODUCTS, INC.,
Plaintiff,

14
15
16

vs.
NUVASIVE, INC. and DOES 1 through
10, Inclusive,

17

Defendants.

Case No. 09-CV-6988 R (JEMx)
ORDER GRANTING
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND
COSTS
Hearing Date: March 21, 2011
Hearing Time: 10:00 a.m.
Courtroom: 8

18

Trial Date: October 19, 2010

19

Before the Honorable Manuel L. Real

20

AND RELATED COUNTERCLAIMS.

21
22
23
24
25
26
27
28
275082_1.DOC

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

1

Plaintiff Neurovision Medical Products, Inc.’s (“Plaintiff”) motion for

2

attorney’s fees – Doc. No. 200 – came before this Court for hearing on March 21,

3

2011. Having considered the motions, the parties’ supporting and opposing

4

documents, the pleadings and papers filed in this action, the evidence presented at

5

the trial in this matter and any argument of counsel presented at the hearing on the

6

motions,

7
8
9

IT IS HEREBY ORDERED that Plaintiff’s motion is GRANTED, but the
amount of the fees requested by Plaintiff is reduced, as set forth below.
This is an “exceptional case” under the Lanham Act because, inter alia,

10

defendant NuVasive, Inc. (“Defendant”) infringed upon Plaintiff’s trademark

11

willfully. See Lindy Pen, Inc. v. Bic Pen Corp., 982 F.2d 1400 (9th Cir. 1993).

12

Accordingly, as recognized in Classic Media, Inc. v. Mewborn, 532 F.3d 978 (9th

13

Cir. 2008), this Court may in its discretion award Plaintiff its reasonable attorney’s

14

fees. Based on the evidence presented at trial and the jury’s findings, this Court

15

exercises its discretion and awards attorney’s fees and costs to Plaintiff and against

16

Defendant.

17

Pursuant to Toussaint v. McCarthy, 826 F.2d 901 (9th Cir. 1987), it is

18

plaintiff’s burden to document the hours worked and the reasonableness of

19

plaintiff’s counsel’s rate. It is then defendant’s burden to rebut that the number of

20

hours worked and the hourly rate were reasonable.

21

Plaintiff has largely carried its burden. Defendant largely has not. Plaintiff

22

submitted competent evidence that its counsel’s rates are commensurate with those

23

of attorneys of comparable skill, reputation and experience in the Central District of

24

California performing similar work. See Welch v. Metro Life Insurance Co., 480

25

F.3d 942 (9th Cir. 2007). The Court disagrees that the paralegal time claimed by

26

Plaintiff’s counsel is more properly classified as secretarial work. Additionally, the

27

Court rejects Defendant’s blanket allegation that all work performed by Rincon

28

Venture Law Group, after Browne Woods George appeared in the case, was
275082_1.DOC

-1-

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

1

duplicative. Defendant did not carry its burden of actually identifying duplicative

2

work or time entries. That said, Rincon Venture Law Group’s total fee request is

3

reduced by 10 percent to account for the redacted time entries that obfuscate their

4

subject matter. And the award is reduced by $36,669.70 for the failure to attach

5

Rincon Venture’s June 2010 time records to the original moving papers. While the

6

records were attached to Plaintiff’s reply papers, Plaintiff did not satisfy its burden

7

of documenting the hours expended in its motion papers.

8

Finally, Plaintiff has adequately documented its additional claimed costs.

9

Plaintiff has shown that it is the prevailing practice to bill those costs separate from

10

an attorney’s hourly rate and that its counsel in this case billed those costs separate

11

from their hourly rate. Therefore, pursuant to Grove v. Wells Fargo Financial

12

California, Inc., 606 F.3d 577, 583 (9th Cir. 2010), the additional costs claimed by

13

Plaintiff are taxable to Defendant, and the Court exercises its discretion to tax those

14

costs to Defendant.

15

Plaintiff claimed $1,203,663 in attorney’s fees and $55,151 in additional

16

costs. For the reasons stated above, Plaintiff is awarded attorney’s fees in the

17

amount of $1,132,899 and additional costs in the amount of $55,151. The clerk

18

previously awarded taxable costs to Plaintiff in the amount of $29,179.70. (Doc.

19

No. 214.)

20
21

Therefore, the Court hereby orders the clerk to fill in the amount of
$1,217,229.70 on the blank line on page 2, line 25 of the Judgment (Doc No. 187).

22
23
24
25

Dated: _May 5, 2011

26

____________________________
The Hon. Manuel L. Real
Judge of the United States District Court

27
28
275082_1.DOC

-2-

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

1

Submitted by:

2

RINCON VENTURE LAW GROUP
K. Andrew Kent

3
4
5
6
7
8

BROWNE WOODS GEORGE LLP
Peter W. Ross
Benjamin D. Scheibe
Keith J. Wesley
By /s/ Peter W. Ross
Peter W. Ross
Attorneys for Plaintiff and Counter-Defendant
NEUROVISION MEDICAL PRODUCTS, INC.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
275082_1.DOC

-3-

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

1

PROOF OF SERVICE

2

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3

I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 2121 Avenue of the Stars, 24th Floor,
Los Angeles, California 90067.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

On May 5, 2011, I served the foregoing document described as: [PROPOSED]
ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
AND COSTS on the parties in this action by serving:
Anthony L. Press, Esq.
Scott C. Moore, Esq.
Morrison & Foerster, LLP
555 West Fifth Street
Los Angeles, CA 90013-1024
By Envelope - by placing the original a true copy thereof enclosed in sealed envelopes
addressed as above and delivering such envelopes:
By Mail: As follows: I am "readily familiar" with this firm's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with the U.S.
postal service on that same day with postage thereon fully prepaid at Los Angeles, California in
the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after date
of deposit for mailing in affidavit.
By Personal Service: I delivered such envelope by hand to the offices of the addressee(s).
By Federal Express: I caused the envelope(s) to be delivered to the Federal Express box at
2121 Avenue of the Stars, Los Angeles, California 90067, on _______________, for delivery on
the next-business-day basis to the offices of the addressee(s).
By Facsimile Transmission: On ______________ at _____ _.m., I caused the above-named
document to be transmitted by facsimile transmission, from fax number 310-275-5697, to the
offices of the addressee(s) at the facsimile number(s) so indicated above. The transmission was
reported as complete and without error. A copy of the transmission report properly issued by the
transmitting facsimile machine is attached hereto.
By E-Mail Electronic Transmission: Based on a court order or an agreement of the parties
to accept service by e-mail or electronic transmission, I caused the documents to be sent to the
person(s) at the e-mail address(es) so indicated above. I did not receive, within a reasonable time
after the transmission, any electronic message or other indication that the transmission was
unsuccessful.
Executed on May 5, 2011, at Los Angeles, California.
FEDERAL I declare that I am employed in the office of a member of the bar of this
court at whose direction the service was made.
_______________________________
G. Diane Torosyan

27
28
275082_1.DOC

-4-

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS