Aecom Energy and Construction, Inc. v. John Ripley et al

Filing 155

ORDER by Judge Ronald S.W. Lew: GRANTING 124 MOTION for Attorney Fees. The Court GRANTS Plaintiffs Request in full and awards Plaintiff $32,874.00 in attorneys fees related to Plaintiffs Motion for Further Contempt. Defendants are ORDERED to p ay Plaintiff the fee award within thirty days of the issuance of this Order. Defendants are also ORDERED to pay Plaintiff, within thirty days of the issuance of this Order, the $21,815.80 in attorneys fees the Court previously awarded Plaintiff in connection with its first Motion for Civil Contempt. (shb)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 AECOM ENERGY & CONSTRUCTION, INC., 13 Plaintiff, 14 15 v. 16 JOHN RIPLEY; TODD HALE; 17 GARY TOPOLEWSKI; HENRY BLUM; BUD ZUKALOFF; 18 MORRISON KNUDSEN CORPORATION; MORRISON19 KNUDSEN COMPANY, INC.; MORRISON-KNUDSEN SERVICES, 20 INC.; and MORRISON-KNUDSEN INTERNATIONAL INC., 21 22 23 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:17-cv-05398-RSWL-SS ORDER RE: PLAINTIFF’S REQUEST FOR ATTORNEYS’ FEES [124] Currently before the Court is Plaintiff AECOM 24 Energy & Construction, Inc.’s (“Plaintiff”) Request for 25 Attorneys’ Fees (“Request”) [124] in connection with 26 its Motion for Further Civil Contempt (“Motion for 27 Further Contempt”). Having reviewed all papers 28 submitted pertaining to this Request, the Court NOW 1 1 FINDS AND RULES AS FOLLOWS: the Court GRANTS 2 Plaintiff’s Request in full and awards Plaintiff the 3 $32,874.00 in attorneys’ fees incurred in connection 4 with its Motion for Further Contempt. 5 6 I. BACKGROUND Plaintiff filed a Motion for Preliminary Injunction 7 [11] on August 1, 2017, which the Court granted on 8 September 28, 2017 [45]. On November 28, 2017, 9 Plaintiff filed its first Motion for Contempt [64]. 10 The Court granted Plaintiff’s first Motion for Contempt 11 on January 11, 2018 and ordered Defendants Morrison 12 Knudsen Corporation, Morrison-Knudsen Company, Inc., 13 Morrison-Knudsen International Inc., Morrison-Knudsen 14 Services, Inc., and Gary Topolewski (collectively, 15 “Defendants”)1 to change the names of their corporate 16 entities to comply with the Court’s Preliminary 17 Injunction Order. Order re Mot. for Civil Contempt 18 (“Order re First Mot.”) 13:7-10, ECF No. 86. 19 After Plaintiff filed supplemental briefing 20 regarding its attorneys’ fees incurred in connection 21 with Plaintiff’s first Motion for Contempt, the Court 22 granted Plaintiff’s request for attorneys’ fees on 23 February 16, 2018 and ordered Defendants to pay 24 Plaintiff $21,815.80 within twenty-one days of the 25 Order. Order re Pl.’s Req. for Att’ys’ Fees 4:28-5:5, 26 27 1 Plaintiff also filed this Action against Defendants Bud The Clerk entered default against these defendants on December 4, 2017. 2 28 Zukaloff, John Ripley, Todd Hale, and Henry Blum. 1 ECF No. 97. To date, Defendants still have not paid 2 Plaintiff the fee award or provided a reason for 3 failing to do so. 4 On March 27, 2018, Plaintiff filed its Motion for 5 Further Contempt [103]. On May 10, 2018, the Court 6 granted in part and denied in part Plaintiff’s Motion 7 for Further Contempt [119]. The Court denied the 8 Motion in part, noting that Defendants had changed the 9 four corporations’ names and taken down the website at 10 the time of the ruling. Order re Pl.’s Mot. for 11 Further Civil Contempt (“Order re Mot. for Further 12 Contempt”) 11:14-18, ECF No. 119. However, the Court 13 granted the Motion for Defendants’ failure to pay 14 attorneys’ fees in connection with Plaintiff’s first 15 Motion for Contempt. Id. at 12:6-9. The Court also 16 awarded Plaintiff attorneys’ fees incurred in filing 17 the Motion for Further Contempt. 18 Id. at 15:3-5. Plaintiff filed the instant Request [124] on May 19 18, 2018. Defendants filed an Opposition [127] on May 20 25, 2018. Plaintiff then filed its Reply [137] on June 21 1, 2018. 22 II. DISCUSSION 23 A. Legal Standard 24 “[A]ttorneys’ fees in a civil contempt proceeding 25 are limited to those reasonably and necessarily 26 incurred in the attempt to enforce compliance.” Abbott 27 Labs. v. Unlimited Beverages, Inc., 218 F.3d 1238, 1242 28 (11th Cir. 2000). Courts employ the “lodestar method” 3 1 to determine the reasonableness of the requested 2 attorneys’ fees. 3 433 (1983). Hensley v. Eckerhart, 461 U.S. 424, “The ‘lodestar’ is calculated by 4 multiplying the number of hours the prevailing party 5 reasonably expended on the litigation by a reasonable 6 hourly rate.” Ferland v. Conrad Credit Corp., 244 F.3d 7 1145, 1149 n.4 (9th Cir. 2001) (quotation omitted). 8 B. Analysis 9 1. 10 Apportionment Defendants argue that the Court should apportion 11 the attorneys’ fees award, granting fees only for time 12 spent on the successful section of Plaintiff’s Motion 13 for Further Contempt—Defendants’ failure to pay 14 attorneys’ fees awarded in connection with Plaintiff’s 15 first Motion for Contempt—and not for time spent on the 16 unsuccessful sections of the Motion—Defendants’ failure 17 to change corporate names and Defendants’ websites 18 related to the Morrison Knudsen brand. See Defs.’ 19 Opp’n to Pl.’s Suppl. Filing (“Opp’n”) 2:4-11, ECF No. 20 127. 21 The Ninth Circuit has held that “a plaintiff who is 22 unsuccessful at a stage of litigation that was a 23 necessary step to her ultimate victory is entitled to 24 attorney’s fees even for the unsuccessful stage.” 25 Cabrales v. Cty. of L.A., 935 F.2d 1050, 1053 (9th Cir. 26 1991). Further, district courts have granted 27 attorneys’ fees for an unsuccessful contempt motion if 28 the motion was necessary to bring a non-compliant 4 1 party’s violations to the court’s attention and enforce 2 a court’s ruling. See Facebook, Inc. v. Power 3 Ventures, Inc., No. 08-CV-05780-LHK, 2017 U.S. Dist. 4 LEXIS 125541, at *47 (N.D. Cal. Aug. 8, 2017) (granting 5 attorneys’ fees request in full for a contempt motion 6 that was denied in part because, at the time of the 7 motion’s filing, the defendant was in violation of a 8 court order as alleged in the contempt motion, making 9 it “necessary to bring [that] failure to the Court’s 10 attention”); see also Causey v. U.S. Bank Nat’l Ass’n, 11 No. CV-8-3460-MWF (CWx), 2012 U.S. Dist. LEXIS 189923, 12 at *4 (C.D. Cal. Oct. 17, 2012) (awarding attorneys’ 13 fees in connection with unsuccessful application to 14 show cause regarding contempt because the defendant 15 “failed to act on the Ninth Circuit[’]s . . . order[,]” 16 thus making “the Motion . . . necessary to the ultimate 17 vindication of [the plaintiff’s] rights”). 18 19 a. Corporate Name Changes Here, Defendants do not dispute that they were not 20 in compliance with the Court’s Preliminary Injunction 21 Order at the time Plaintiff filed its Motion for 22 Further Contempt. Instead, Defendants argue that this 23 section of the Motion was unnecessary because “whenever 24 Defendants were made aware of any deficiency complying 25 with the preliminary injunction, they reacted (albeit 26 not always quickly) to the notice and took appropriate 27 action.” Opp’n 5:13-15. However, this argument is not 28 compelling because it was Defendants’ delayed responses 5 1 that made Plaintiff’s Motion for Further Contempt 2 necessary. It took six months for Defendants to change 3 all four corporate names. This included two separate 4 five-week delays between the Nevada Secretary of State 5 rejecting the name change requests and Defendants 6 filing the subsequent name change requests. During 7 this time, Plaintiff met and conferred with Defendants 8 and even warned that a second contempt motion might be 9 necessary to induce compliance. However, Defendants 10 failed to change all of the corporate names until April 11 10, 2018, one month after the parties’ meeting and two 12 weeks after Plaintiff filed its Motion for Further 13 Contempt. Thus, it was necessary for Plaintiff to 14 bring this continuous failure to comply to the Court’s 15 attention to induce compliance. See New England Tech., 16 Inc. v. Sigma Tech Sales, Inc., No. 09-61347-CIV, 2011 17 U.S. Dist. LEXIS 102104, at *4 (S.D. Fla. Sept. 9, 18 2011) (“[W]hen a party’s continued violation of a court 19 order requires the opposing party to seek enforcement 20 of the order through a motion for contempt, the 21 resulting attorneys’ fees and costs may be assessed 22 against the noncomplying party, even if the court 23 ultimately does not hold that party in contempt.”). 24 25 b. Website Defendants also do not dispute that they were not 26 in compliance with the Court’s Preliminary Injunction 27 Order regarding Morrison Knudsen websites prior to the 28 Court’s ruling on Plaintiff’s Motion for Further 6 1 Contempt. Instead, Defendants argue that this section 2 of the Motion was unnecessary because they acted 3 appropriately and quickly when given notice of their 4 noncompliance. Opp’n 5:13-15. As with Defendants’ 5 argument regarding the corporate name changes, this 6 argument is unconvincing. Common sense dictates that 7 such an egregious violation of the Preliminary 8 Injunction Order should be brought to the attention of 9 the Court when it is discovered in the middle of 10 contempt proceedings. 11 Further, Defendants’ behavior throughout the course 12 of this litigation gave Plaintiff no reason to believe 13 that any action short of a declaration to the Court 14 regarding the website would have induced Defendants to 15 shut down the website in a timely manner. See Order re 16 Mot. for Further Contempt 8:8-10 (noting Defendants’ 17 “inappropriate” delays in complying with the 18 Preliminary Injunction Order throughout the course of 19 this Action). Given Defendants’ unwillingness to obey 20 the Court’s Orders in a timely manner,2 it is clear that 21 22 23 24 25 26 27 28 2 Defendants claim that they were unaware of the website’s existence. Putting aside the Court’s suspicion of this claim, see Order re Mot. for Further Contempt 11:7-11, this claim is irrelevant to a contempt proceeding, see Henry Schein, Inc. v. Certified Bus. Supply, Inc., No. SA CV 03–1662 DOC (ANx), 2008 WL 9452685, at *7 (C.D. Cal. Aug. 20, 2008) (regarding a contempt order, “[defendant is] responsible for all of its employees’ conduct, and it should make sure that methods are firmly in place to prevent further violations from occurring”). Defendants’ employee was able to quickly take down the website, and Defendants were under a duty to ensure the website was not created in the first place. 7 1 bringing the website to the Court’s attention was 2 necessary. See Casale v. Kelly, 710 F. Supp. 2d 347, 3 367 (S.D.N.Y. 2010) (“[E]ven where a court declines to 4 issue a citation of contempt for violations of the 5 court’s orders, attorneys’ fees and costs may be 6 recoverable where the ‘bringing of the action should 7 have been unnecessary and was compelled by . . . 8 unreasonable, obdurate obstinacy.’” (quoting Brown v. 9 Kelly, 05 Cir. 5442 (SAS), 2007 U.S. Dist. LEXIS 39527, 10 at *26 (S.D.N.Y May 31, 2007))). 11 Accordingly, the Court need not apportion fees 12 because awarding attorneys’ fees for the entirety of 13 the Motion for Further Contempt is necessary and 14 justified to compensate Plaintiff for the costs 15 incurred in bringing Defendants’ persistent violations 16 to the Court’s attention. See Perry v. O’Donnell, 759 17 F.2d 702, 705 (9th Cir. 1985) (regarding a civil 18 contempt motion, “the cost of bringing the violation to 19 the attention of the court is part of the damages 20 suffered”); see also Henry Schein, 2008 WL 9452685, at 21 *9 (“[I]t is important that [the defendant] realize the 22 substantial legal expenses [the plaintiff] has incurred 23 in order to enforce the Injunction.”). 24 2. 25 Because the Court has determined no apportionment Reasonableness of Time Spent 26 of fees is necessary, it must next assess “whether 27 attorneys for the prevailing party could have 28 reasonably billed the hours they claim to their private 8 1 clients.” Gonzalez v. City of Maywood, 729 F.3d 1196, 2 1202 (9th Cir. 2013). In doing so, courts perform an 3 “‘hour-by-hour analysis of the fee request,’ and 4 exclude those hours for which it would be unreasonable 5 to compensate the prevailing party.” Id. (quotation 6 omitted). 7 The Court has reviewed Plaintiff’s counsel’s 8 billing records, which include the time entries for 9 drafting the Motion for Further Contempt and the time 10 spent reviewing and drafting the supplemental 11 declaration regarding Defendants’ website. As 12 Plaintiff noted in its Request, Defendants filed a 13 timely Opposition to Plaintiff’s Motion for Further 14 Contempt, unlike in Plaintiff’s first Motion for 15 Contempt, so Plaintiff’s counsel spent more time on the 16 Motion for Further Contempt. Ultimately, the Court 17 does not see any billing entries that are “excessive, 18 redundant, or otherwise unnecessary,” see Hensley, 461 19 U.S. at 434, and therefore, the Court finds the 49.3 20 hours billed to be reasonable. 21 3. 22 Defendants argue that Plaintiff’s attorneys’ Reasonableness of Rates 23 billing rates are unreasonably high. 24 23. See Opp’n 9:22- In Plaintiff’s first request for attorneys’ fees, 25 the Court held that Plaintiff’s rates, “while on the 26 higher end,” were “in line with rates courts in the 27 Central District have previously approved.” Order re 28 Req. for Att’ys’ Fees 4:2-3 (citing Perfect 10, Inc. v. 9 1 Giganews, Inc., No. CV 11-07098-AB SHX, 2015 WL 2 1746484, at *20 (C.D. Cal. Mar. 24, 2015), aff’d, 847 3 F.3d 657 (9th Cir. 2017); Burton Way Hotels, Ltd. v. 4 Four Seasons Hotels Ltd., No. CV 11-303 PSG (PLAX), 5 2015 WL 13081297, at *3 (C.D. Cal. Jan. 21, 2015)). 6 Plaintiff’s counsel’s rates remain unchanged from 7 when Plaintiff filed its first request for attorneys’ 8 fees. Further, there is no reason to believe that 9 those rates are no longer reasonable. Accordingly, the 10 Court finds that the hourly rates are reasonable and 11 consistent with comparable market rates. 12 13 III. CONCLUSION Based on the foregoing, the Court GRANTS 14 Plaintiff’s Request in full and awards Plaintiff 15 $32,874.00 in attorneys’ fees related to Plaintiff’s 16 Motion for Further Contempt. Defendants are ORDERED to 17 pay Plaintiff the fee award within thirty days of the 18 issuance of this Order. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 1 Defendants are also ORDERED to pay Plaintiff, 2 within thirty days of the issuance of this Order, the 3 $21,815.80 in attorneys’ fees the Court previously 4 awarded Plaintiff in connection with its first Motion 5 for Civil Contempt.3 6 IT IS SO ORDERED. 7 8 DATED: July 3, 2018 9 s/ RONALD S.W. LEW HONORABLE RONALD S.W. LEW Senior U.S. District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 Plaintiff requests that the Court reduce both awards to a 27 judgment. However, a judgment in this matter is premature. Plaintiff should be able to collect the awards from Defendants 28 based on this Order. 11

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