J & J Sports Productions, Inc. v. Mendoza Cervantes
Filing
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ORDER GRANTING IN PART Plaintiff's 61 Motion for Attorney Fees and Costs signed by District Judge Dale A. Drozd on 2/26/2019. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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J & J SPORTS PRODUCTIONS INC.,
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Plaintiff,
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No. 1:16-cv-00485-DAD-JLT
v.
JAVIER MENDOZA CERVANTES,
individually and doing business as LA
TORMENTA NIGHT CLUB,
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ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND
COSTS
(Doc. No. 61)
Defendant.
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This matter came before the court on February 20, 2019 for hearing on plaintiff’s motion
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for attorneys’ fees and costs. (Doc. No. 61.) Attorney Thomas P. Riley appeared telephonically
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on behalf of plaintiff, J & J Sports Productions, Inc. (“J & J Sports”). No appearance was made
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by or on behalf of defendant, against whom default judgment has previously been entered. (Doc.
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Nos. 59, 60.) After oral argument, the motion was taken under submission. For the reasons
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stated below, plaintiff’s motion for attorneys’ fees and costs is granted in part and denied in part.
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BACKGROUND
Plaintiff commenced this action against defendant Javier Mendoza Cervantes, individually
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and doing business as La Tormenta Night Club, on April 6, 2016, alleging a violation of the
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Communications Act of 1934 (47 U.S.C. § 605), a violation of the Cable Television Consumer
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Protection and Competition Act of 1992 (47 U.S.C. § 553), and state law conversion and unfair
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competition claims. (Doc. No. 1.)
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According to its complaint, plaintiff was granted exclusive nationwide commercial
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distribution rights to a sports program entitled “‘The Fight of the Century’ Floyd Mayweather, Jr.
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v. Manny Pacquiao Championship Fight Program” (the “Program”), telecast on May 2, 2015. (Id.
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at ¶ 14.) On that date, defendant Cervantes was the owner of La Tormenta Night Club at 2711
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Taft Highway, Bakersfield, California. (Id. at ¶ 7.) Plaintiff alleges that defendant intercepted
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and exhibited the Program at La Tormenta Night Club without authorization. (Id. at ¶ 11.)
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On October 20, 2016, plaintiff filed a motion for default judgment on the grounds that
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defendant failed to answer plaintiff’s duly served complaint. (Doc. No. 15.) On November 28,
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2016, the assigned magistrate judge issued findings and recommendations recommending that the
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motion for default judgment be granted in part. (Doc. No. 17.) Defendant subsequently filed a
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motion to set aside the entry of default on December 13, 2016. (Doc. No. 19.) The magistrate
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judge, finding good cause, granted the motion to set aside the entry of default and withdrew the
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findings and recommendations. (Doc. No. 21.)
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Thereafter, on February 7, 2018, the assigned magistrate judge issued orders requiring
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defendant to notify the court whether he intended to appear at the scheduled settlement
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conference and to lodge a settlement conference statement. (See Doc. Nos. 38, 39.) Defendant
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neither complied with those orders nor communicated with the court in any way. Accordingly, on
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February 20, 2018, the magistrate judge issued an order requiring defendant to show cause in
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writing why sanctions, including the striking of his answer and the entry of default against him,
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should not be imposed due to his failure to comply with the court’s orders. (Doc. No. 44.)
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Defendant did not respond in any way to the order to show cause. On March 20, 2018, the
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magistrate judge issued findings and recommendations finding that defendant had abandoned this
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litigation, and recommending that his answer be stricken and default be entered against him.
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(Doc. No. 48.) The undersigned adopted those findings and recommendations on April 30, 2018.
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(Doc. No. 51.)
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Plaintiff renewed its motion for default judgment on June 22, 2018. (Doc. No. 53.) The
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magistrate judge issued findings and recommendations recommending that the motion be granted
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in part. (Doc. No. 57.) The undersigned adopted those findings and recommendations on
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December 18, 2018. (Doc. No. 59.)
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On January 2, 2019, plaintiff filed the motion for attorneys’ fees and costs now pending
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before the court. (Doc. No. 61.) Defendant did not file an opposition to this most recent motion.
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DISCUSSION
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A.
Attorneys’ Fees
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Reasonable attorneys’ fees are recoverable under 47 U.S.C. § 605(e)(3)(B)(iii). The court
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determines the amount of reasonable attorneys’ fees by applying the “lodestar” method. Ferland
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v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). The lodestar is calculated by
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multiplying the number of hours the prevailing party reasonably expended on the litigation by a
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reasonable hourly rate. Id. “In determining reasonable hours, counsel bears the burden of
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submitting detailed time records justifying the hours claimed to have been expended.” Chalmers
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v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). “Where the documentation of hours
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is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, 461
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U.S. 424, 433 (1983). A district court should also exclude from the lodestar fee calculation any
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hours that were not “reasonably expended,” such as hours that are excessive, redundant, or
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otherwise unnecessary. See id. at 434; see also J & J Sports Prods., Inc. v. Napuri, No. C 10-
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04171 SBA, 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013).
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1. Prevailing Market Rate in the Eastern District of California
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The district court must determine a reasonable hourly rate, considering the experience,
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skill, and reputation of the attorney requesting fees. Chalmers, 796 F.2d at 1210. Reasonable
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hourly rates are calculated by reference to “prevailing market rates in the relevant community,”
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with a special emphasis on fees charged by lawyers of “comparable skill, experience, and
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reputation.” Davis v. City of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated on
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other grounds, 984 F.2d 345 (9th Cir. 1993). Generally, the forum district represents the relevant
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legal community. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992); see also Camacho
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v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (determining that “generally, the
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relevant community [for the prevailing market rate] is the forum in which the district court sits”);
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Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 471 n.5 (9th Cir. 2000) (same), overruled
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on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012).
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The fee applicant bears the burden of producing satisfactory evidence “that the requested
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rates are in line with those prevailing in the community for similar services by lawyers of
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reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895
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n.11 (1984). “Affidavits of the plaintiff[’s] attorney and other attorneys regarding prevailing fees
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in the community, and rate determinations in other cases, particularly those setting a rate for the
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plaintiff[’s] attorney, are satisfactory evidence of the prevailing market rate.” United
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Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); see also Napuri,
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2013 WL 4428573, at *2.
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Here, plaintiff requests a total of $13,108.00 in attorneys’ fees. (Doc. No. 61 at 7.) These
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fees consist of 6.25 hours of work at $500.00 per hour by Thomas P. Riley, Esq. (“Riley”), 25.50
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hours of work performed by an unidentified “research attorney” at $300.00 per hour, and 23.33
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hours of work by an unidentified “administrative assistant” at $100.00 per hour. (Id.)
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Plaintiff has submitted the declaration of attorney Riley in support of its fee request.
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(Doc. No. 61-1, Declaration of Thomas P. Riley (“Riley Decl.”).) Attorney Riley states that he
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has been practicing law for over twenty-three years, and that his firm has specialized in the civil
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prosecution of signal piracy claims since 1994. (Id. at ¶¶ 3, 4.) Riley’s declaration, however,
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fails to provide supporting evidence that the $500.00 billing rate he requests is the prevailing
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market rate in the Eastern District of California. Moreover, plaintiff has not submitted an
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affidavit from any attorney that worked on this case or from any other attorneys attesting to the
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prevailing rates in the Eastern District of California for similar services by lawyers of reasonably
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comparable skill, experience and reputation. See Davis, 976 F.2d at 1546. Similarly, plaintiff
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has not submitted any evidence of hourly rate determinations in other similar cases in the Eastern
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District of California setting the hourly rate requested here. See Phelps Dodge Corp., 896 F.2d at
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407; see also Napuri, 2013 WL 4428573, at *2. Attorney Riley has noted that the undersigned
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has previously awarded him a rate of $350.00 per hour. (Doc. No. 61 at 5.) At the hearing on the
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pending motion, attorney Riley requested that if the court is not inclined to award attorneys’ fees
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based on his $500 per hour rate, it upwardly adjust the $350 rate the court has previously awarded
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to account for cost-of-living increases over time.
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With respect to attorney Riley, the court finds that $375.00 is a reasonable hourly rate
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within the Eastern District of California given Riley’s level of experience and the rate he has been
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awarded in the past by this court, with a modest upward adjustment for cost-of-living. See, e.g., J
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& J Sports Prods., Inc. v. Barajas, No. 1:15-cv-01354-DAD-JLT, 2017 WL 469343, at *2 (E.D.
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Cal. Feb. 2, 2017) (concluding that $350.00 is a reasonable hourly rate for attorney Riley); Joe
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Hand Promotions, Inc. v. Garcia, No. 1:12-cv-01744-LJO, 2013 WL 238369, at *3 (E.D. Cal.
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May 30, 2013) (“Previously this court has determined that $350 is a reasonable hourly rate for
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‘(very) experienced and skilled trial counsel’ within . . . the Eastern District.”) (citing Jadwin v.
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County of Kern, 767 F. Supp. 2d 1069, 1132 (E.D. Cal. 2011)), report and recommendations
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adopted, 2013 WL 2991048 (E.D. Cal. June 14, 2013); see also Moreau v. Daily Indep., 2013
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U.S. Dist. LEXIS 29085, 2013 WL 796621 at *3 (E.D. Cal. Mar. 1, 2013) (approving rate of
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$350 for attorneys with more than 20 years of experience)).
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In addition, plaintiff seeks attorneys’ fees based on an hourly rate of $300.00 for the
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research attorney who worked on this case, but acknowledges that this court has previously found
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$210.00 to be a reasonable rate for the same research attorney. (See Doc. No. 61 at 5.) Attorney
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Riley’s declaration states that the research attorney who worked on this case has been practicing
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law for twenty-four years, and has been assisting his office with commercial signal piracy claims
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for approximately ten years. (Riley Decl. at ¶ 3.) Having already found that a $375.00 hourly
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rate is reasonable for attorney Riley in the Eastern District of California, the court finds that a
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concomitant 25 percent reduction is also appropriately applied to the research attorney’s fees, for
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an hourly rate of $225.00. Accordingly, plaintiff will be awarded attorneys’ fees based on a rate
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of $225.00 per hour for its research attorney.
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2. Contemporaneous Billing
Attached as an exhibit to attorney Riley’s declaration is a chart describing the services
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rendered and hours billed. (Riley Decl., Ex. 1.) The entries in the chart, however, are not based
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on contemporaneous billing records, but were “reconstructed by way of a thorough review of the
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files themselves” after services were rendered. (Riley Decl. at ¶ 7.)
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“Absent the submission of detailed contemporaneous time records justifying the hours
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claimed to have been expended on this case, the [c]ourt gives little weight to the figures provided
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by [p]laintiff.” Napuri, 2013 WL 4428573, at *2; see also Joe Hand Promotions, Inc. v. White,
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No. C 11-01331 CW (JSC), 2011 WL 6749061, at *2 (N.D. Cal. Dec. 6, 2011) (“Because the
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billing records were not created contemporaneously, the Court finds that they are inherently less
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reliable.”); Joe Hand Promotions, Inc. v. Be, No. 11-CV-01333-LHK, 2011 WL 5105375, at *7
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(N.D. Cal. Oct. 26, 2011) (noting that without actual billing records, the court gives “little
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weight” to figures “reconstructing” billable time); Zynga Game Network Inc. v. Erkan, No. 09-
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03264 SC, 2010 WL 3463630, at *2 (N.D. Cal. Aug. 31, 2010) (denying motion for attorneys’
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fees where plaintiff failed to attach “actual billing records”).
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Although the reconstructed billing records here are inherently less reliable, the amount of
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attorney time spent on this case does not appear to be “unnecessary, excessive, or unreasonable.”
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Joe Hand Promotions, Inc. v. Albright, No. 2:11-cv-02260-WBS, 2013 WL 4094403, at *4 (E.D.
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Cal. Aug. 13, 2013). In total, attorney Riley and the research attorney spent 31.75 hours on this
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matter, which has spanned nearly three years and has involved substantive motion practice,
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including plaintiff’s filing of two motions for default judgment, an opposition to defendant’s
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motion to set aside entry of default, and a motion for leave to file a motion for partial summary
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judgment. (See generally Riley Decl., Ex. 1.) Given the procedural history of this case, the court
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finds the amount of attorney time expended on this matter to be reasonable. See Barajas, 2017
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WL 469343, at *3; Albright, 2013 WL 4094403, at *4. Accordingly, plaintiff’s motion in this
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regard will be granted and attorneys’ fees are awarded for 6.25 hours at $375.00 per hour for
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attorney Riley, and 25.50 hours at $225.00 per hour for the research attorney, for a total amount
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of $8,081.25.
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3. Fees for the Administrative Assistant
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While plaintiff acknowledges that the award of attorneys’ fees for the services rendered by
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administrative assistants has been rejected by this court in the past, plaintiff asks the court to
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reconsider its prior determinations, arguing that the tasks assigned to the administrative assistant
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in this case were not clerical in nature, “but more akin to paralegal type work,” and were not
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duplicative of counsel’s time expended on the matter. (Id.) If the court is not inclined to grant
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the $100.00 rate requested by plaintiff, plaintiff asks the court to award $75.00 per hour for work
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performed by the administrative assistant. (Id. at 5–6.)
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This court and others within this circuit have previously declined to award fees for clerical
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work by administrative assistants, particularly where there is a lack of specificity in such billing
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by administrative assistants and the billing is duplicative of attorney time. See, e.g., J & J Sports
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Prods., Inc. v. Marini, No. 1:16-cv-0477-AWI-JLT, 2018 WL 2155710, at *2 (E.D. Cal. May 10,
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2018); J & J Sports Prods., Inc. v. Meza Jimenez, No. CV-17-1320-PHX-DGC, 2018 WL
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1621254, at *1 (D. Ariz. Apr. 4, 2018); J & J Sports Prods., Inc. v. Barajas, No. 15-cv-01354-
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DAD-JLT, 2017 WL 469343, at *3–5 (E.D. Cal. Feb. 2, 2017); J & J Sports Prods., Inc. v.
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Corona, No. 1:12-cv-01844-LJO-JLT, 2014 WL 1513426, at *2 (E.D. Cal. Apr. 16, 2014),
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adopted in full, 2014 WL 1767691 (E.D. Cal. May 2, 2014). Here, the use of block billing makes
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it unclear how much time the administrative assistant spent on “preparation” versus “filing and
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service” of documents, and many of the billings for attorney Riley and his administrative assistant
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appear to be identical. (See generally Riley Decl., Ex. 1.) As the court has previously found,
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given the lack of specificity and the clerical and duplicative nature of the tasks, no fees will be
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awarded for tasks completed by the administrative assistant.
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B.
Costs
47 U.S.C. § 605(e)(3)(B)(iii) requires that the court award “full costs . . . to an aggrieved
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party who prevails.” Here, plaintiff seeks costs in the amount of $2,078.06, consisting of $400.00
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for the complaint filing fee, $260.00 for service of process charges, $45.53 for courier charges,
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$97.53 for photocopying charges, and $1, 275.00 for investigative expenses. Only the costs for
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the filing fee,1 service of process charges, and investigative expenses are appropriately
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documented. Plaintiff has provided no documentation to support the amount sought for courier
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charges and photocopying charges, and at the hearing on the pending motion, counsel stated that
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plaintiff would waive those costs. The costs for courier charges and photocopying charges will
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therefore not be awarded.
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With respect to plaintiff’s request for investigative expenses, courts have refused to award
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such pre-filing investigative fees to the prevailing party. See, e.g., Napuri, 2013 WL 4428573, at
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*3; Joe Hand Promotions, Inc. v. Piacente, No. C-10-3429 CW (JCS), 2011 WL 2111467, at *9
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(N.D. Cal. Apr. 11, 2011). Plaintiff contends that there is a split of authority with respect to the
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recovery of investigative costs. (Doc. No. 61 at 6–7.) While the court recognizes that
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investigative costs have been awarded to the prevailing party in some of the cases cited by
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plaintiff, those decisions do not address the issue or explain why the award of such costs was
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appropriate. See, e.g., J & J Sports Prods., Inc. v. Pagliaro, 2014 WL 7140605, No. 1:12-cv-
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01507-LJO-SAB, at *2 (E.D. Cal. Dec. 12, 2014) (noting only that “[p]laintiff spent $601.00 on
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‘Investigative Expenses,’” and awarding such costs without explanation); J & J Sports Prods.,
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Inc. v. Mosley, No. C-10-5126 CW (EMC), 2011 WL 2066713, at *7 (N.D. Cal. Apr. 13, 2011)
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(noting only that plaintiff’s counsel submitted a declaration substantiating $600.00 for
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“investigative expenses,” and awarding such costs without explanation). Plaintiff has provided
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no other authority for the proposition that it is entitled to the award of investigative expenses here.
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Moreover, the court finds the analysis set forth in Joe Hand Promotions, Inc. v. Albright
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to be instructive. There, the court found that even if the investigative costs were recoverable, they
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were insufficiently documented because plaintiff only included a bare invoice and “no additional
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information regarding the qualifications of the investigation company or what services it
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provided, leaving the court with no means of determining if the charge is reasonable.” 2013 WL
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4094403, at *6. Other jurisdictions have followed this approach. See, e.g., Kingvision Pay-Per-
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Although plaintiff did not submit a copy of receipt for the complaint filing fee, the docket in
this case makes clear that the $400.00 filing fee was paid on April 6, 2016. (See docket,
indicating “[f]iling fee $400, receipt number 0972-6405525”.)
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View Ltd. v. Autar, 426 F. Supp. 2d 59, 67 (E.D.N.Y. 2006) (“Thus a plaintiff must document ‘(1)
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the amount of time necessary for the investigation; (2) how much the investigators charged per
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hour; [and] (3) why the investigators are qualified to demand the requested rate.’” (internal
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quotations omitted)). Here, plaintiff has submitted only an invoice and no other documentation
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regarding the qualifications of its investigator or an explanation of what services were provided.
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(See Riley Decl., Ex. 2.) Accordingly, the court declines to award the requested investigative
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costs.
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In sum, the court finds that plaintiff has failed to meet its burden to support its request for
costs for the courier charges, photocopying charges, and investigative expenses. Plaintiff’s
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request for costs will be granted as to $660.00 for the filing fee and service of process costs, and
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denied as to all other claimed costs.
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CONCLUSION
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For the reasons set forth above,
1. Plaintiff’s motion for attorneys’ fees and costs (Doc. No. 61) is granted in part and
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denied in part;
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2. The court awards $8,081.25 to plaintiff in attorneys’ fees; and
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3. The court awards $660.00 to plaintiff in costs.2
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IT IS SO ORDERED.
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Dated:
February 26, 2019
UNITED STATES DISTRICT JUDGE
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The total award for fees and costs is therefore $8,741.25.
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