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

Filing 425

ORDER re: PLAINTIFFS SUPPLEMENTAL BRIEFING TO ESTABLISH ATTORNEYS FEES by Judge Ronald S.W. Lew: The Court awards AECOM $372,473.60 in attorneys fees incurred after remand from the Ninth Circuit. The Court also affirms its previous attorneys fees award of $873,628.02. As such, the cumulative total of attorneys fees awarded to AECOM is $1,246,101.62. The Court will amend AECOMs Proposed Final Judgment to reflect as much. IT IS SO ORDERED. (shb)

'O'
1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CV17-5398-RSWL-AGRx

AECOM ENERGY &
CONSTRUCTION, INC.,

ORDER re:
PLAINTIFF’S
SUPPLEMENTAL BRIEFING
TO ESTABLISH ATTORNEYS’
FEES

Plaintiff,
v.
GARY TOPOLEWSKI, et al.,
Defendants.

Plaintiff AECOM Energy & Construction, Inc.
(“AECOM”) brought this Action for injunctive relief and
damages against Defendants Morrison Knudsen Corporation;
Morrison-Knudsen Company, Inc.; Morrison-Knudsen
Services, Inc.; Morrison-Knudsen International, Inc.
(collectively, “Corporate Defendants”); and Gary
Topolewski (“Defendant Topolewski”) (collectively,
“Defendants”).

The Action arises out of Defendants’

infringing use of the identity and goodwill of Morrison
Knudsen Corporation (“MK IP” or “MK brand”), which AECOM
1

1

owns the rights to.
Currently before the Court is a supplemental

2
3

briefing (“Supplement”) [419] filed by AECOM to

4

establish the amount of attorneys’ fees pursuant to this

5

Court’s Order granting AECOM’s Motion for Sanctions

6

[417].

7

attorneys’ fees in addition to $873,628.02 that was

8

previously awarded for the initial phase of this

9

litigation.

AECOM seeks $387,902.40 in post-remand

Having reviewed all papers submitted

10

pertaining to the Supplement, the Court NOW FINDS AND

11

RULES AS FOLLOWS: the Court reduces AECOM’s post-remand

12

attorneys’ fees to $372,473.60 and affirms its previous

13

attorneys’ fees award of $873,628.02, thus awarding

14

AECOM a total of $1,246,101.62 in attorneys’ fees.
I.

15
16

A.

BACKGROUND

Factual Background

17

The facts underlying this Action are stated at

18

length in this Court’s previous Order granting AECOM’s

19

Motion for Summary Judgment and Permanent Injunction.

20

See generally Order re: Pl.’s Mot. for Summ. J., ECF

21

Nos. 242, 243.

22

Supplement are stated in this Court’s previous Order

23

granting AECOM’s Motion for Sanctions, where the Court

24

granted AECOM’s request for attorneys’ fees and costs

25

and ordered AECOM to provide supplemental briefing to

26

establish the amount of such fees and costs.

27

generally Order re: Pl.’s Mot. for Sanctions, ECF No.

28

417.

Moreover, the facts giving rise to this

See

Because the facts are well-known to the parties,
2

1

the Court need not restate them here.

2

B.

3

Procedural Background
On November 8, 2018, this Court granted [242, 243]

4

AECOM’s Motion for Summary Judgment against Defendants, 1

5

finding willful infringement of the MK brand and

6

awarding AECOM $1,802,834,672 (“$1.8 billion”) in

7

damages. 2

8

Motion for Alteration, Amendment, or Reconsideration

9

[268] of the Court’s Order granting AECOM’s Motion for

10

Summary Judgment, which the Court denied [305] on April

11

24, 2019.

12

AECOM’s Motion to Set Attorneys’ Fees [262] and awarded

13

AECOM $873,628.02 in attorneys’ fees [305].

14

On February 21, 2019, Defendants filed a

Also on April 24, 2019, the Court granted

Defendants appealed the $1.8 billion damages award,

15

which the Ninth Circuit reversed and remanded to this

16

Court [339] on March 24, 2021. 3

Following remand, this

17
18
19
20
21
22
23
24
25
26
27
28

AECOM also named four additional individual defendants in
its Complaint: Bud Zulakoff, John Ripley, Todd Hale, and Henry
Blum (collectively, “Defaulting Defendants”). See generally
Compl., ECF No. 1. On December 4, 2017, the court clerk entered
default as to these four individuals. See generally Default by
Clerk. On November 9, 2018, AECOM filed a Motion for Default
Judgment against Defaulting Defendants. See generally Mot. for
Default J., ECF No. 244. On January 24, 2019, the Court granted
AECOM’s motion, finding Defaulting Defendants jointly and
severally liable for AECOM’s damages. See generally Order re:
Mot. for Default J.
1

The Court also granted AECOM’s request for a permanent
injunction, ordering Defendants to cease their use of the MK IP,
and awarded AECOM its attorneys’ fees. See Order re: Pl.’s Mot.
for Summ. J. 45:5-55:8.
2

Defendants also argued on appeal that AECOM lacked Article
III standing, which the Ninth Circuit rejected. See Ninth Cir.
Mem. at 2-3, ECF No. 339.
3

3

1

Court reopened discovery on damages.
On December 16, 2021, Defendants filed Motions for

2
3

Summary Judgment [395, 396], arguing that AECOM could

4

not prove that Defendants profited from their

5

infringement scheme.

6

a Motion for Sanctions [398], requesting evidentiary

7

sanctions, terminating sanctions, and monetary

8

sanctions.

9

part and denied in part [417] AECOM’s Motion for

On December 17, 2021, AECOM filed

On February 24, 2022, this Court granted in

10

Sanctions and denied [417] Defendants’ Motions for

11

Summary Judgment.

12

AECOM’s request for evidentiary sanctions and deemed as

13

true that Defendants performed and collected on a $36

14

million construction contract; (2) granted AECOM’s

15

request for terminating sanctions and entered default

16

judgment against Defendants in the amount of $36

17

million; (3) denied AECOM’s requests for compensatory

18

and coercive sanctions; and (4) granted AECOM attorneys’

19

fees and costs in an amount to be established by

20

supplemental briefing. 4

21

the instant Supplement [419] and lodged its Proposed

22

Final Judgment [420].

23

Topolewski objected [422] to the Proposed Final

24

Judgment, taking issue with the requested attorneys’

25

fees amount.

26

///

27
28

Specifically, this Court: (1) granted

On March 14, 2022, AECOM filed
On March 21, 2022, Defendant

The Court also bound Defaulting Defendants to this Order.
See generally Order re: Mot. for Sanctions, ECF No. 417.
4

4

II.

1
2

A.

DISCUSSION

Legal Standard
“Attorneys’ fees can be recovered only to the

3
4

extent they are reasonable.”

SAS v. Sawabeh Info.

5

Servs. Co., No. CV1104147MMMMANX, 2015 WL 12763541, at

6

*4 (C.D. Cal. June 22, 2015) (citing In re SNTL Corp.,

7

F.3d 826, 842 (9th Cir. 2009)).

8

the lodestar method to determine the reasonableness of

9

attorneys’ fees.

Courts routinely use

See Christensen v. Stevedoring Servs.

10

of Am., 557 F.3d 1049, 1053 (9th Cir. 2009); City of

11

Burlington v. Dague, 505 U.S. 557, 562 (1992) (“[T]he

12

‘lodestar’ figure has . . . become the guiding light of

13

[the court's] fee-shifting jurisprudence.”).

14

lodestar figure is calculated by multiplying the hours

15

reasonably spent on the litigation by a reasonable

16

hourly rate.

17

729 F.3d 1196, 1202 (9th Cir. 2013).

18

B.

The

See, e.g., Gonzalez v. City of Maywood,

Discussion

19

AECOM seeks $387,902.40 in attorneys’ fees incurred

20

after remand from the Ninth Circuit, in addition to the

21

previous award of $873,628.02, for a total of

22

$1,261,530.42 in attorneys’ fees.

23

J. 2:7-14, ECF No. 420-1.

24

issue with the requested fee award, objecting to both

25

the reasonableness of the hours expended by AECOM’s

26

counsel and the reasonableness of the rates charged.

27

See generally Topolewski Objections to Proposed Amen.

28

Final J. (“Topolewski Objs.”), ECF No. 422.

Proposed Amen. Final

Defendant Topolewski takes

5

The Court

1

examines the reasonableness of the hours expended by

2

AECOM’s counsel and the reasonableness of the rates

3

charged in turn below.

4

1.

Reasonable Hours

5

Defendant Topolewski appears to argue that AECOM

6

cannot recover attorneys’ fees for time spent on the

7

unsuccessful stages of this litigation.

8

Topolewski Objs.

9

that AECOM cannot recover fees for certain work because:

See generally

Namely, Defendant Topolewski argues

10

(1) Magistrate Judge Rosenberg granted Defendant

11

Topolewski’s motion for protective order and therefore

12

prevented AECOM from compelling third-party discovery

13

regarding Defendant Topolewski; and (2) the Ninth

14

Circuit reversed AECOM’s $1.8 billion damages award.

15

Id.

Defendant Topolewski is mistaken, however.

16

AECOM can, indeed, recover attorneys’ fees for

17

hours spent on the stages of this litigation that were

18

not fruitful.

19

clear, stating that plaintiffs may, and should, recover

20

attorneys’ fees for the unsuccessful stages of

21

litigation if those stages contributed to the ultimate

22

victory of the lawsuit.

23

Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991) (citing

24

Hensley v. Eckerhart, 461 U.S. 414 (1983)) (“Rare,

25

indeed, is the litigant who doesn’t lose some skirmishes

26

on the way to winning the war.

27

many reasonably disputed issues and a lawyer who takes

28

on only those battles he is certain of winning is

Federal jurisprudence in this area is

See Cabrales v. Cty. of Los

6

Lawsuits usually involve

1

probably not serving his client vigorously enough;

2

losing is part of winning.”); see also Hensley, 461 U.S.

3

at 435 (“Where a plaintiff has obtained excellent

4

results, his attorney should recover a fully

5

compensatory fee . . . encompass[ing] all hours

6

reasonably expended on the litigation . . . .

7

award should not be reduced simply because the plaintiff

8

failed to prevail on every contention raised in the

9

lawsuit.”).

[T]he fee

10

Though unsuccessful, AECOM’s efforts in litigating

11

the third-party subpoenas and the $1.8 billion damages

12

award were essential to its ultimate success in securing

13

terminating sanctions.

14

Topolewski that it is due to his collective failure with

15

Corporate Defendants to provide financial discovery that

16

AECOM had to litigate the $1.8 billion damages award,

17

serve third-party discovery requests, and move for

18

terminating sanctions in the first place.

19

unabashedly, Defendant Topolewski asks this Court to

20

carve out AECOM’s litigation failures in calculating the

21

attorney’s fees.

22

Cabrales, 935 F.2d at 1053 (“[Defendant] would have us

23

scalpel out attorney’s fees for every setback, no matter

24

how temporary, regardless of its relationship to the

25

ultimate disposition of the case.

26

sense.”).

27
28

The Court reminds Defendant

Yet,

The Court will do no such thing.

This makes little

Accordingly, AECOM is entitled to attorneys’ fees
expended on the third-party discovery requests,
7

1

including time spent unsuccessfully opposing Defendant

2

Topolewksi’s Motion for Protective Order, and time spent

3

litigating the $1.8 billion damages award that was

4

ultimately overturned by the Ninth Circuit.

5

v. Cty. of Orange, 905 F. Supp. 2d 1017, 1032 (C.D. Cal.

6

2012) (citing Cabrales, 935 F.2d at 1053; O’Neal v. City

7

of Seattle, 66 F.3d 1064, 1069 (9th Cir. 1995)) (“[T]ime

8

spent unsuccessfully opposing motions or requests on the

9

way to prevailing in a case may be compensable.”); see

See Pierce

10

also Cabrales, 935 F.2d at 1053 (awarding attorneys’

11

fees to plaintiff even though judgment was vacated by

12

the Supreme Court because plaintiff ultimately won her

13

case on remand).

14

To be clear, the Court notes that AECOM may only

15

recover attorneys’ fees for hours reasonably expended.

16

See Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d

17

1041, 1045 (9th Cir. 2000) (quoting Hensley, 461 U.S. at

18

434) (“A district court should exclude from the lodestar

19

amount hours that are not reasonably expended because

20

they are ‘excessive, redundant, or otherwise

21

unnecessary.’”).

22

submitted by AECOM, the Court finds that the 5.7 hours

23

billed by legal assistants for trial preparation are

24

somewhat unreasonable.

25

Chang (“Chang Decl.”) 2:8, ECF No. 419-1.

26

trial preparation was necessary, including researching

27

the Court’s trial procedures and preparing the

28

stipulation to continue trial, the Court finds that such

Looking at the billing statement

See Declaration of Yungmoon

8

While some

1

work could have been completed in 3.7 hours.

2

Accordingly, the Court reduces the hours billed by legal

3

assistants for trial preparation by two hours.

4

Gonzalez, 729 F.3d at 1202 (noting that courts may

5

perform an “hour-by-hour analysis” of attorneys’ fees

6

requests and “exclude those hours for which it would be

7

unreasonable to compensate the prevailing party”).

8

Court reduces these hours based on Senior Paralegal

9

Keith Catuara’s hourly rate because Mr. Catuara

See

The

10

performed most of the trial preparation work.

The Court

11

otherwise finds that the hours expended on this

12

litigation post-remand by AECOM’s counsel are

13

reasonable.

14

2.

15

Reasonable hourly rates are calculated according to

Reasonable Rates

16

the “prevailing market rates in the relevant legal

17

community for similar services by lawyers of reasonably

18

comparable skill, experience, and reputation.”

19

v. Grant Mercantile Agency, Inc., 2017 WL 6604410, at *9

20

(E.D. Cal. Dec. 27, 2017) (citing Blum v. Stenson, 465

21

U.S. 886, 895 (1984)).

22

the forum in which the district court sits.

23

Billings Police Dep't, 470 F.3d 889, 891 (9th Cir.

24

2006).

25

“[t]he Court [may] also draw[] on precedent from other

26

courts, its knowledge of the prevailing community rates,

27

and its evaluation of the quality of the work performed

28

by counsel.

Valentin

The relevant legal community is
Carson v.

In determining whether rates are reasonable,

Toyo Tire & Rubber Co. Ltd v. Hong Kong
9

1

Tri-Ace Tire Co., No. SACV1400054CJCJPRX, 2018 WL

2

702851, at *3 (C.D. Cal. Jan. 24, 2018) (citation

3

omitted).

4
5

AECOM’s billing statement reflects that the
following hourly rates were charged in 2021:

6
7

Diana Torres (lead partner)

$1,116/hour

Yungmoon Chang (senior associate)

$876/hour

Maria Beltran (midlevel associate)

$656/hour

Adrineh Shakelian (first year associate)

$550/hour

Keith Catuara (senior paralegal)

$396/hour

Thomas Ambrus (junior paralegal)

$251/hour

Hector Alejandro (junior paralegal)

$226/hour

8
9
10
11
12
13
14
15
16
17
18
19
20
21

While these rates have increased since the Court

22

last granted AECOM attorneys’ fees in 2018, they remain

23

within or minimally above market range.

24

Elecs., Inc. v. Univ. Remote Control, Inc., 130 F. Supp.

25

3d 1331, 1337 (C.D. Cal. 2015) (noting intellectual

26

property partners at major law firms bill in the range

27

of $600 to $1,100 per hour); see also Perfect 10, Inc.

28

v. Giganews, Inc., No. CV 11-07098-AC SHX, 2015 WL
10

See Univ.

1

1746484, at *20 (C.D. Cal. Mar. 24, 2015) (noting that

2

attorney rates ranging from $390 to $1,002.96 per hour

3

and paralegal rates between $240 and $345 per hour were

4

reasonable for the Los Angeles area).

5

rates here are reasonable and the Court rejects

6

Defendant Topolewski’s unsupported and unpersuasive

7

arguments to the contrary.

As such, the

8

3.

Lodestar Calculation

9

As stated above, the Court reduces the hours billed

10

by legal assistants by two hours according to Mr.

11

Catuara’s hourly rate of $396/hour.

12

notes that there were several errors in the table

13

provided in the Chang Declaration where the amounts

14

charged did not correspond to the hours billed.

15

e.g., Chang Decl. 2:1-10 (stating that Diana Torres

16

charged $1505 for one hour of trial work, when Ms.

17

Torres’ fee is $1,116 per hour).

18

analysis of the billing sheet submitted by AECOM’s

19

counsel, the accurate lodestar calculation is as

20

follows: 5

The Court also

See,

After an extensive

21
22

///

23

///

24

///

25
26
27
28

AECOM did not provide hourly rates for work done by Mark
Malone, Daniel Shin, La Tonya D., Stephanie Rosa, or Library
Factual. See generally Ex. A (“Billing Statement”), ECF No. 4192. As such, the Court calculates their hourly rates based on the
billing statement submitted by AECOM’s counsel. See id.
5

11

1

Diana Torres

51.8 hours @ $1,116/hour
= $57,808.80

2
3
4

Yungmoon Chang

202.9 hours @ $876/hour
= $177,740.40

5
6
7

Maria Beltran

36.2 hours @ $656/hour
= $23,747.20

8
9
10

Adrineh Shakelian

106.1 hours @ $550/hour
= $58,335.00

11
12
13

Keith Catuara

117.5 hours – 2 hours =

14

115.5 hours @ $396/hour

15

= $45,738.00

16
17

Thomas Ambrus

11.1 hours @ $251/hour
= $2,786.10

18
19
20

Hector Alejandro

13 hours @ $226/hour
= $2,938.00

21
22
23

Mark Malone

1.8 hours @ $374/hour
= $673.20

24
25
26

Daniel Shin

0.5 hours @ $361/hour
= $180.50

27
28
12

1

La Tonya D.

4.6 hours @ $308/hour
= $1,416.80

2
3
4

Stephanie Rosa

1.7 hours @ $229/hour
= $389.30

5
6
7

Library Factual

2.1 hours @ $343/hour
= $720.30

8
9
10

TOTAL

$372,473.60

11
Given the lodestar amount, the Court reduces the

12
13

post-remand attorneys’ fees sought by AECOM from

14

$387,902.40 to $372,473.60 and affirms its previous

15

attorneys’ fees award of $873,628.02, reflecting a total

16

of $1,246,101.62.

17
18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
13

III.

1
2

CONCLUSION

Based on the foregoing, the Court awards AECOM

3

$372,473.60 in attorneys’ fees incurred after remand

4

from the Ninth Circuit.

5

previous attorneys’ fees award of $873,628.02.

6

the cumulative total of attorneys’ fees awarded to AECOM

7

is $1,246,101.62.

8

Final Judgment to reflect as much.

The Court also affirms its
As such,

The Court will amend AECOM’s Proposed

9
10
11

IT IS SO ORDERED.

12
13
14

DATED: May 9, 2022

/s/ Ronald S.W. Lew

_____________________________
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
14