Cataphora, Inc. v. Parker et al

Filing 352

ORDER by Magistrate Judge Bernard Zimmerman granting 322 Motion for Attorney Fees (bzsec, COURT STAFF) (Filed on 3/2/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CATAPHORA INC.,

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Plaintiff(s),
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v.
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JERROLD SETH PARKER, et al.,)
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Defendant(s).
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No. C09-5749 BZ
ORDER AWARDING ATTORNEY’S
FEES

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Plaintiff seeks an additional $ 134,500.00 in attorney’s

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fees for 269 hours of work related to the parties’ post-trial

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motions and both of Plaintiff’s fee motions.1

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contend that the present motion should be denied in full due

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to its overreaching nature.

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to reduce the amount requested, and object to various time

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entries submitted by Plaintiff’s counsel on the grounds that

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the fees are neither reasonable nor necessary.2

Defendants

Alternatively, Defendants ask me

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Plaintiff has already received $ 734,095.00 in
attorney’s fees as the “prevailing party” under California
Civil Code section 1717. (Docket No. 315.)

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Defendants do not dispute the reasonableness of the
hourly rate charged by Plaintiff’s counsel.
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FEES RELATED TO DEFENDANTS’ RULE 50 MOTIONS

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Defendants object to Plaintiff recovering additional fees

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on the grounds that any additional recovery would be “grossly

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excessive” in relation to the jury verdict.

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5.)

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opposing Plaintiff’s prior fee request, stating, as they do

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again here, that this was a “simple brief of contract action”

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and that an award of nearly $900,000 in fees would be

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excessive.

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(Def. Opp. Br. p.

Defendants made a similar argument in their brief

(Id.)

Throughout this litigation, Defendants have regularly

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relitigated issues which I had previously determined as a

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matter of law.

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argued that Defendants could not be found liable for breach

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of contract because no contract had ever been formed.

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issue of whether there was a binding contract between the

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parties was resolved when I denied Plaintiff’s motion for

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summary judgment (Docket No. 83).

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50 motions argued that Plaintiff was not entitled to lost

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profits under the doctrines of mistake and fraud.

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affirmative defenses were not part of the claims submitted to

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the jury because Defendants never attempted to amend their

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answer to include these defenses until after the close of

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evidence (at which time I denied their request as untimely).

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Defendants insistence on filing post-trial motions that

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repeated arguments resolved during summary judgment or at the

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pretrial conference unreasonably multiplied the litigation,

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and Plaintiff cannot be faulted for incurring fees related to

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opposing these motions.

For example, Defendants’ Rule 50 motions

But the

Likewise, Defendants’ Rule

But these

While Defendants did raise some new
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issues in their Rule 50 motions, such as whether there was

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sufficient evidence for the jury to determine the certainty of

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Plaintiff’s lost profits, the import of the relief sought by

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Defendants in their post-trial motions would have been to

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eliminate the jury’s verdict and any fees claimed by

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Plaintiff.

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opposing these motions vigorously.

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Longshoremen’s & Warehousemen’s Union v. L.A. Export Terminal,

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Inc., 69 Cal. App. 4th 287, 304 (1999) (a defendant “cannot

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litigate tenaciously and then be heard to complain about the

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time necessarily spent by the plaintiff in response.”).

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Thus, once again, I cannot fault Plaintiff for
See, e.g., Int’l

Nevertheless, given the repetition of the arguments

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presented in the post-trial motions, an adjustment to the

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hours claimed by Plaintiff is warranted.

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v. Drexler, 22 Cal.4th 1084, 1095–1096 (2000) (the amount of

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attorneys’ fees is within the sound discretion of the trial

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court).

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counsel spent over 28 hours preparing for oral argument on the

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post-trial motions.

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(“Farrer Decl.”) Ex. D.)

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issues had been exhausted both on summary judgment and via

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various in limine motions, Mr. Farrer’s dedication of almost a

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week’s worth of time to preparing for oral argument on issues

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with which he had a great deal of familiarity seems excessive.

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This is particularly true given that the billing records

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suggest that at least 16 hours were used to prepare an oral

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argument outline.

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outline for a short hearing on motions which had been more

See PLCM Group, Inc.

For example, Defendants point out that Plaintiff’s

(See Declaration of William Webb Farrer

(Id.)

In light of the fact that these

Dedicating 16 hours to preparing an

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then fully briefed, and with which counsel was very familiar,

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seems unreasonable.

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Mr. Farrer also billed more than 130 hours for tasks

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related to opposing Defendants’ post-trial motions, including

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legal research and time spent drafting the opposition brief.

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Again, given that many of the issues briefed in the post-trial

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motions were repetitive of issues that had come up earlier in

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the case, 130 hours of work to oppose Defendants’ motions

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seems excessive.

I therefore exercise my judgment and reduce

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Plaintiff’s fee request for work performed on the Rule 50

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motions by fifty precent, from 161 hours (see Pl. Reply Br. p.

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1) to 80.5 hours.

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FEES FOR UNSUCCESSFUL PREJUDGMENT INTEREST MOTION

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Defendants argue that Plaintiff should not receive fees

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for preparing its unsuccessful motion for prejudgement

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interest.

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compensation for all hours reasonably spent on the litigation

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(see Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982)), and

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recovery does not necessarily hinge upon the success or

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failure of one particular motion, Plaintiff has agreed to

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reduce its hours by 7.7 for time spent on tasks related to its

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unsuccessful prejudgment interest motion.3

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p. 8.)

(Pl.’s Reply Br.

FEES FOR UNSUCCESSFUL SETTLEMENT DISCUSSIONS

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Defendants next argue that Plaintiff’s fee request should

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While a prevailing party is normally entitled to

be reduced by 3.7 hours for time billed to unsuccessful

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The 269 hours sought by Plaintiff factors in this
voluntary reduction.
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settlement efforts.

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to settle their disputes, and the time billed by Mr. Farrer in

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an attempt to settle the parties’ disputes, which would have

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vitiated any need to engage in post-trial briefing or an

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appeal, was a worthy effort and consistent with our local

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rules.

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on this basis.

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I disagree.

Parties should be encouraged

I therefore decline to reduce Plaintiff’s fee request

FEES FOR PREPARING MOTION FOR ATTORNEY’S FEES

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While Defendants do not challenge Plaintiff’s request for

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“fees on fees” (i.e., fees for time spent litigating the fees

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motions), I find that a reduction in time is warranted.

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Farrer spent a total of 48.2 hours “researching and preparing

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[the instant motion], reviewing and researching Defendants’

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opposition and preparing [a] reply.”

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Mr.

(Pl.’s Reply Br. p. 1.)

Preparing a fee motion is a relatively simple process,

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particularly where, as here, Plaintiff had already once

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prepared such a motion, and there were no unique or difficult

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issues on the second go-round.

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lack of any new issues having been raised, Mr. Farrer

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nevertheless billed more time to the present fee motion (48.2)

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than he did to his prior fee motion (43.6).

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p. 1.)4

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account for the excessiveness of Plaintiff’s second fees on

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fees request, and reduce the request by fifty percent, from 48

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hours to 24 hours.

I am troubled that despite the

(Pl.’s Reply Br.

I therefore find that a reduction is warranted to

See Drexler, 22 Cal. 4th at 1095.

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I am also troubled by the fact that while Defendants’
opposition to Plaintiff’s motion was only 7 pages long,
Plaintiff’s reply was 19 pages long (8 pages longer than its
moving brief).
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CONCLUSION

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For the reasons stated above, IT IS ORDERED that

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Plaintiff is awarded $80,750.00 in fees for 161.5 hours of

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work at $500 per hour.

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court further determines that this motion is suitable for

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decision without oral argument and VACATES the hearing.5

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Dated: March 2, 2012

Pursuant to Local Rule 7-1(b), the

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Bernard Zimmerman
United States Magistrate Judge

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G:\BZALL\-BZCASES\CATAPHORA V. PARKER\POST TRIAL MOTIONS\ORDER ON PS SECOND
MOT FOR ATTORNEYS FEES.wpd

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As part of Plaintiff’s fee request, Plaintiff
estimated an additional 3 hours to prepare for and attend the
hearing on this motion. Given that I have vacated the hearing,
these three hours were subtracted from Plaintiff’s fee request
and this reduction is reflected in the amount awarded above.
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