Bryan Pringle v. William Adams Jr et al

Filing 131

DECLARATION of Ira Gould re MOTION to Dismiss Rister Editions Based on Improper Service; 121 , Declaration (Motion related) 125 , Memorandum in Support of Motion 122 , Order on Motion to Dismiss Party, 126 , Reply (Motion related) 124 , Declaration (non-motion), Declaration (non-motion), Declaration (non-motion) 129 , Objection/Opposition (Motion related) 123 , Declaration (non-motion), Declaration (non-motion) 128 , Declaration (non-motion), Declaration (non-motion), Declaration (non-motion) 130 Objecting to Barry Slotnick's Declaration in Support of Defendant's Application for Fees filed by Plaintiff Bryan Pringle. (Hampton, George)

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Dean A. Dickie (Pro Hac Vice)
[e-mail]
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
Chicago, Illinois 60606
Telephone: [phone]
Facsimile: 312.460.4288
Ira Gould (Pro Hac Vice)
[e-mail]
Ryan L. Greely (Pro Hac Vice)
[e-mail]
GOULD LAW GROUP
120 North LaSalle Street, Suite 2750
Chicago, IL 60602
Telephone: [phone]
Facsimile: 312.726.1328
George L. Hampton IV (State Bar No. 144433)
[e-mail]
Colin C. Holley (State Bar No. 191999)
[e-mail]
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: [phone]
Facsimile: 949.718.4580
Attorneys for Plaintiff
BRYAN PRINGLE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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BRYAN PRINGLE, an Individual,
Plaintiff,

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v.
WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
JAIME GOMEZ, all individually and
collectively as the music group The Black
Eyed Peas; DAVID GUETTA;
FREDERICK RIESTERER; UMG
RECORDINGS, INC.; INTERSCOPE
RECORDS; EMI APRIL MUSIC, INC.;
HEADPHONE JUNKIE PUBLISHING,

Case No. SACV10-1656 JST (RZx)

DECLARATION OF
IRA GOULD IN
OBJECTION TO BARRY I.
SLOTNICK’S DECLARATION
IN SUPPORT OF
DEFENDANT’S
APPLICATION FOR FEES

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LLC; WILL.I.AM. MUSIC, LLC;

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JEEPNEY MUSIC, INC.; TAB
MAGNETIC PUBLISHING; CHERRY
RIVER MUSIC COL.; SQUARE
RIVOLI PUBLISHING; RISTER
EDITIONS; and SHAPIRO,
BERNSTEIN & CO.,

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Defendants.

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DECLARATION OF IRA GOULD

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I, Ira Gould, having personal knowledge of the facts contained within this
declaration, and if called as a witness, could testify regarding the following:

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1.

I am the named partner at the law firm of Gould Law Group, and am

counsel for Plaintiff, Bryan Pringle (“Plaintiff” or “Pringle”) in the above-captioned
action. I am a member in good standing of the State Bar of Illinois.
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I submit this declaration in objection to the to the reasonableness of the

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$36,091.50 in fees alleged to have been incurred by Rister Editions’ counsel Loeb

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& Loeb, as set forth in the Declaration of Barry I. Slotnick filed on April 22, 2011.

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[Dkt. No. 128]

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3.

Mr. Slotnick’s Declaration was submitted pursuant to Judge Tucker’s

April 12, 2011 Order directing Defendant Rister Editions (“Rister”) to file a
declaration as to the expenses, costs and attorneys’ fees incurred in filing its motion
to dismiss for improper service of Plaintiff’s Second Amended Complaint. (the
“Order”) [Dkt. No.126]. The Order states that “Plaintiff’s counsel shall pay to
Rister sanctions in the amount of the reasonable expenses, costs, and attorneys’ fees
Rister incurred in filing this motion.” (emphasis added).
4.

I am an experienced litigator and trial attorney, having practiced law in

Illinois state court and federal court since 1974 years. I graduated with Honors
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from The John Marshall Law School in Chicago, in 1973,where I was Editor-in-

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Chief of the John Marshall Law Review. After graduation, I was a law clerk for

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one year for Judge Thomas R. McMillen in the Northern District of Illinois, after

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which I practiced with a 10-person lawfirm as a litigator and was made a partner in

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1979. From 1980 through 1996, I was a litigation partner at the former law firm

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of Holleb & Coff, a 150 lawyer firm when I left (disbanded in 2000), where I was

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the head of the litigation department for about seven years in the 1980s. From 2003

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to 2007 I was a litigation attorney at the firm of Greenberg Traurig, in the Chicago

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Office. I left Greenberg in 2007 to start my own firm, where I continue to practice

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complex commercial litigation, which I have done during my career.

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5.

I have reviewed Mr. Slotnick’s Declaration, and the “Time Sheet”

attached as Exhibit B to Mr. Slotnick’s Declaration, which purportedly sets forth
the number of billable hours spent related to the “filing of the Motion” and hourly
rates for those involved. Based on my many years as an experienced litigator and
trial lawyer, and my knowledge of the nature and facts of this case, the 71.3 billable
hours set forth by Rister are grossly excessive and unreasonable considering,
among other things, the short length of the briefs involved (totaling thirteen and a
half pages), the non-complex nature of the Motion, which was a simple motion to
dismiss pursuant to the Fed. Rules of Civ. Procedure., and the fact that the majority
of the research and content contained in the Motion to Dismiss were recycled from
a previous Motion to Dismiss filed by the same Defendant. The hours billed by
Rister should thus be substantially reduced.

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I.

Background Facts
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On December 13, 2010, Rister filed its first motion to dismiss based on

improper service. [Doc. #53]

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6.

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Plaintiff to serve Rister. [Doc. #95]

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On January 27, 2011, the Court denied Rister’s motion, and ordered

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Plaintiff’s counsel then made a subsequent, good faith attempt to serve

Rister in a manner which it believed to be the most time and cost efficient method
of service.

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Rister then filed a second motion to dismiss on March 28, 2011, which

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contained substantially the same law and content of its first motion to dismiss. [Dkt.

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No. 122]

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9.

The Court granted Rister’s Motion for attorney’s fees pursuant to 28

U.S.C. § 1927. Specifically, the Court ordered Plaintiff’s counsel to “pay to Rister
sanctions in the amount of the reasonable expenses, costs, and attorneys’ fees Rister
incurred in filing this motion.”

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10.

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Rister’s counsel subsequently filed a fee petition, at the request of the

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Court, seeking to recover $36,091.50 for the work surrounding the filing of its six

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and a half-page Motion to Dismiss and a seven-page Reply Brief. [Dkt. No. 128].

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II.

Legal Standard in Determining Attorney’s Fees

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Reasonableness is the benchmark for sanctions based on attorneys’

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fees. See Brown v. Baden (In re Yagman), 796 F.2d 1165, 1184-85 (9th Cir. 1986);

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28 U.S.C. § 1927 (authorizing fees “reasonably incurred”).

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12.

Reasonable attorneys’ fees are determined by following a two-part

“lodestar” approach. Intel Corp. v. Terabyte Int’l, 6 F.3d 614, 622 (9th Cir. 1993),
citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The court calculates the
presumptively-reasonable lodestar figure by multiplying the hours reasonably spent

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on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433-34; Jordan v.

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Multnomah County, 815 F.2d 1258, 1262-63 (9th Cir. 1987).

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In determining a reasonable hourly rate, courts generally consider

several factors, including: (1) the experience, skill, and reputation of the applicant;
(2) the prevailing rate in the community for comparable attorneys; and (3) the
novelty or difficulty of the issues presented. See Welch v. Metro. Life Ins. Co., 480
F.3d 942, 946 (9th Cir. 2007); Chalmers v. City of L.A .,796 F.2d 1205, 1210-1 (9th
Cir. 1986).

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III.

Rister’s Hours Billed Are Grossly Excessive
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Given the length of the briefs, and the lack of complexity of the legal

issue involved and skill needed to draft the Motion, Rister’s billable hours incurred
in connection with its filing of the Motion to Dismiss should have been no more
than fifteen hours. However, Rister boldly contends that the work surrounding the
research and writing of the thirteen and a half pages that consisted of its Motion and
Reply took over seventy-one billable hours. Plaintiff’s counsel objects to these
hours as grossly excessive and unreasonable.

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15.

As evidence of its excessive hours, the Court need only examine the

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Time Sheet attached to Mr. Slotnick’s Declaration as Exhibit B. Not only does

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Rister’s counsel bill for hours that are duplicative, excessive and unnecessary, but

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also hours for a separate Defendant in the case, Frederick Riesterer, that has been

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properly served and was in no way involved with Rister’s Motion to Dismiss.

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16.

After review of the Rister’s counsel’s Time Sheet, I object to the hours

billed as follows:

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 3/16/11 through 3/28/11 – All hours related to the research, drafting,

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reviewing and revising of Rister’s Motion to Dismiss – 29.5 hours total. This
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fee is grossly excessive given the length of the Motion to Dismiss, and the

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lack of complexity for the work involved. Rister’s Motion was a simple, six

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and a half page motion to dismiss, pursuant to the Fed. Rules of Civ. Pro., for

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failure to serve a party. There were no complex legal issues involved in the

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research or drafting of this Motion.

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research and content of this Motion is duplicative of Rister’s first Motion to

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Dismiss.

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Moreover, a substantial portion of the

 3/25/11 – Review and respond to Emails regarding service of process on
[Frederick] Riesterer – 0.20 hours.

Individual Defendant, Frederick

Riesterer, is a separate Defendant from Rister Editions, was properly served
and thus not a party to the Motion to Dismiss, and Rister’s counsel’s
reviewing his process of service is otherwise completely unrelated to the
filing of its Motion to Dismiss. These hours should thus be disregarded in
their entirety.

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 4/4/11 through 4/11/11 – All hours related to the research, drafting,

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reviewing and revising of Rister’s Reply Brief – 26.7 hours total. This fee is

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grossly excessive given the length of the Reply Brief, the amount of research

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having already been conducted when filing the initial Motion to Dismiss, and

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the lack of complexity of the issue. Rister’s Reply was a simple, seven page

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brief dealing with the Fed. Rules of Civ. Pro. There were no complex legal

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issues involved in (despite the fact that Rister’s Time Sheet states that

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research was conducted on the Hague Convention, there is no analysis of it in

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Rister’s Reply Brief), and most of relevant research was no doubt already

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completed prior to the filing of the two previous Motions to Dismiss.

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 4/12/11 – Draft Answer for Frederick Riesterer for Plaintiff’s Complaint;
Draft Timeline and Summary of Key Case Events – 4.1 hours. Again,

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Individual Defendant, Frederick Riesterer, is a separate Defendant from

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Rister Editions, was properly served and thus not a party to the Motion to

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Dismiss and counsel’s drafting of Riesterer’s Answer to the Complaint is

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otherwise completely unrelated to the filing of Rister’s Motion to Dismiss.

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These hours should thus be disregarded in their entirety.

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 4/14/11 through 4/21/11 – All hours related to determining attorney’s fees

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pursuant to the Order – 10.7 hours total. These fees, which make up fifteen

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percent of Rister’s total hours billed, are unreasonable and excessive.

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IV.

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The Hourly Rates Charged By Rister’s Counsel Are Excessive
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I similarly object to certain hourly rates charged by Rister’s counsel as

being excessive and unreasonable given the customary fees charged by comparablesized firms in the same area as Loeb & Loeb, and based on the non-complex nature
of the work involved.

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18.

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Plaintiff’s counsel’s objections are based on the Exhibit C of Mr.

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Slotnick’s own Declaration, which is a recent, up-to-date article from the National

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Law Journal that purports to demonstrate the average, or “customary,” hourly rates

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of attorneys at top law firms (“Exhibit C”). Contrary to what is stated in Mr.

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Slotnick’s Declaration, the hourly rates charged by many of Rister’s attorneys are

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not less than comparable-sized firms in California and New York – actually, they

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are on the extreme high-end. Given the non-complex nature of the case and of the

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Motion and Reply at issue, Rister’s proposed hourly rates are unreasonable and

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excessive, and Plaintiff’s counsel request that they be reduced accordingly.

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19.

First, pursuant to Mr. Slotnick’s Declaration, Thomas Nolan, a six-

year associate attorney,1 billed out at $500 an hour. Page ten of Exhibit C breaks

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Pursuant to Mr. Slotnick’s Declaration, Mr. Nolan has been practicing law since 2005.

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down the average hourly rate for associate attorneys by year. Of the 42 law firms

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listed, only three charge a rate of $500 an hour for six-year associates, and those

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three list a range in between a number below $500 and a figure slightly higher than

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$500. Of the six other firms listed in New York or California, the average hourly

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rate for a six-year associate is $471.5 per hour.

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Second, pursuant to Mr. Slotnick’s Declaration, Tal Dickenson, a

seven-year associate, billed out at a rate of $550 per hour. Again, an examination
of the 42 law firms on the page 10 of Exhibit C, demonstrates that only three of the
42 firms charge on the upper range of $550 an hour for seven-year associates, and
of the six firms listed in New York or California, the average hourly rate for a
seven-year associate is $501.75.

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Lastly, pursuant to Mr. Slotnick’s Declaration, Tiffany Cummings and

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Antoinette Pepper, two paralegals, billed out at a rate of $320 and $355 an hour

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respectively.

Plaintiff’s counsel objects to these rates as excessive and

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unreasonable.

Rister provides no documentary evidence to establish that hourly

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fees of $320 and $355 for paralegals are reasonable rates. Plaintiff’s counsel

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believes these fees to be particularly excessive for paralegals given that Rister

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billed Eric Schwartz, a second-year attorney, at a similar hourly rate of $350.

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V.

Conclusion

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Based on the above, the hours billed by Rister’s counsel for are grossly

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excessive and unreasonable based on legal issues and amount of work involved, and

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certain of the hourly rates charged are similarly unreasonable.

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requests that the Court apply the lodestar method to determine a more reasonable

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number of hours expended on filing the second motion to dismiss, multiplied by a

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reasonable hourly fee for attorneys and paralegals at a comparable sized firm in this

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jurisdiction.
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Plaintiff thus

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I declare under penalty of perjury that the forgoing is true and correct to the
best of my knowledge.

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Executed this 27th day of April, 2011, in Chicago, Illinois.

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______________________
/s/ Ira Gould
Ira Gould

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18,543,585.1\146614-00001
04/27/11 1:05 PM

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