Graham-Sult et al v. Clainos et al

Filing 165

FURTHER ORDER ON ATTORNEYS FEES. Signed by Judge Claudia Wilken on 3/21/2013. (ndr, COURT STAFF) (Filed on 3/21/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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ALEXANDER GRAHAM-SULT and DAVID
GRAHAM,

No. C 10-4877 CW

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Plaintiffs,

FURTHER ORDER ON
ATTORNEYS’ FEES

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v.
NICHOLAS P. CLAINOS, RICHARD L.
GREENE, LINDA McCALL, GREENE
RADOVSKY MALONEY SHARE & HENNIGH
LLP, BILL GRAHAM ARCHIVES LLC,
d/b/a WOLFGANG’S VAULT, NORTON
LLC and WILLIAM E. SAGAN,

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Defendants.

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________________________________/

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In its March 23, 2012 order, the Court granted Defendants

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Richard Greene, Linda McCall and Greene Radovsky Maloney Share &

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Hennigh LLP (collectively, Greene Defendants) and Defendant

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Nicholas P. Clainos’ motions for award of attorneys’ fees and

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costs pursuant to California Code of Civil Procedure section

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425.16, commonly known as California’s Anti-Strategic Lawsuit

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Against Public Participation (Anti-SLAPP) statute and Defendants

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Bill Graham Archives LLC, Norton LLC and William E. Sagan’s

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(collectively, BGA Defendants) motion for an award of attorneys’

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fees and costs under the Copyright Act, 17 U.S.C. § 505.

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No. 142.

Docket

The Court awarded a total of $501,180.75 in fees.

Id.

The Court also awarded Clainos reasonable fees for his reply

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and Greene Defendants and BGA Defendants reasonable “fees on fees”

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and ordered Defendants to submit documentation for such fees.

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Defendants have submitted their documentation, Plaintiffs have

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submitted a response objecting to Clainos and Greene Defendants’

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requests and Clainos and Greene Defendants have submitted replies.

United States District Court
For the Northern District of California

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Having considered the papers filed by the parties and the entire

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record in this case, the Court GRANTS in part Clainos’ request for

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fees for the reply and awards him $12,181.28; GRANTS Greene

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Defendants request for “fees on fees” and awards them $47,234; and

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GRANTS BGA Defendants’ request for “fees on fees” and awards them

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$39,833.25.
DISCUSSION

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I.

Clainos’s Request
Clainos has submitted a request for $12,642.50 for fees for

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the reply.

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herein are included in the Court’s Order of March 23, 2011

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awarding $126,431.50, and all pertain to the filing of the Reply.”

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Norman Dec. ¶ 3.

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Clainos’ counsel declares, “None of the fees sought

Plaintiffs object to the amount claimed on three grounds.

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First, Plaintiffs assert that Clainos should only be able to

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recover $7,000, the amount his counsel estimated it would cost to

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prepare and file the reply brief at the time of the original fee

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application.

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amount at the time it considered the original fee request, instead

However, the Court declined to award the estimated

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inviting counsel to submit documentation for reply fees.

The

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$7,000 estimate is not binding, and Clainos has submitted

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documentation, including contemporaneous time records, to support

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his request for $12,642.50, which the Court will assess

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independent of the previous estimate.
Plaintiffs next argue that Clainos seeks fees for work

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completed in July 2011 that were already awarded in the Court’s

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March 23, 2011 order.

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it appears that Clainos is now seeking only the total amount of

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United States District Court
For the Northern District of California

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the invoice for work performed in August 2011 because the amount

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sought matches the invoice total.

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While Clainos’ filing suggests otherwise,1

See Norman Dec., Ex. A.

Plaintiffs further argue that the August 2011 invoice

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includes work on matters other than the reply brief.

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Specifically, Plaintiffs object to fees for work performed before

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August 5, 2011, when Plaintiffs filed their response to the

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initial fee motion, and on or after August 18, 2011, when Clainos

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filed his reply.

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August 5, 2011 was reasonably related to the reply brief.

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Plaintiffs provide no basis for a finding that Clainos’ counsel

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could not have begun work on the reply brief prior to the filing

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of Plaintiffs’ response.

The Court finds that the work performed before

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However, the Court finds that Clainos should not be awarded

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work clearly related to appellate issues, or performed after the

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Clainos’ papers indicate that he is seeking the amount
“billed from July, 2011 to August 23, 2011 in connection with the
review of the opposition and preparation of the reply.” Docket
No. 143 at 1. See also Norman Dec. ¶ 4 (indicating that the
amount sought is the “amount billed to the client for the work
after July 11, 2011 and through the date of the Reply”).

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filing of the reply brief.

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for the date the reply brief was filed includes work related to

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the reply brief and work related to the appeal.

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disallow 25% of this entry to account for time spent on the appeal

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rather than the reply.

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As Plaintiffs point out, a block entry

The Court will

Finally, Plaintiffs argue that Clainos has improperly claimed

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expenses for “computerized legal research on July 29, 2011

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relating to the appeal.”

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do not explain how they concluded that this research was not

Plaintiffs’ Response at 5.

Plaintiffs

United States District Court
For the Northern District of California

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related to the reply brief, but they cite the July invoice, which

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has an item on that date for “Research and draft email to Bill

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Norman re: 9th Circuit appellate issues.”

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Plaintiffs have met their burden of rebuttal with respect to the

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July 29 legal research costs.

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The Court finds that

Accordingly, the Court disallows part of Clainos’ fee request
as follows:
August 3, 2011 item: “Research whether attorneys’ fees are
recoverable for successful SLAPP defendant on appeal and
correspondence to client re: same”
.30 hours x $350 rate (SXM) =$105
August 19, 2011 billing block includes work not related to
reply brief. This item is reduced by 25%
1.80 hours x $450 rate (WHGN) =$810. Reduction=$202.50

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Work performed on August 22 and August 23, 2011
.10 hours x $450 rate (WHGN) =$45
.10 hours x $350 rate (SXM) =$35
July 29, 2011 Research costs
$73.72
The total disallowed amount of Clainos’ request for reply

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fees is $461.22.

The total amount awarded is $12,181.28.

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II.

Greene Defendants’ Request
Greene Defendants request $47,234 for “fees on fees.”

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Plaintiffs argue that Greene Defendants should be limited to

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recovering $20,000, the amount estimated in the original fee

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application and in the reply filed in support of that application.

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However, as discussed above, the Court has not and will not limit

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Defendants’ recovery to the estimates submitted at the time of the

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original fee application.

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Greene Defendants provide evidence establishing that the

United States District Court
For the Northern District of California

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hours expended were reasonable.

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(outlining the reasons the fees exceeded the estimate).

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they have voluntarily reduced their “fees on fees” request by ten

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percent.

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See, e.g., Hughes Dec. ¶ 8
Moreover,

See Greene Defendants Reply at 4-5.

Plaintiffs have not presented any specific evidence to

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support their argument that Greene Defendants’ request is

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excessive.

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attorneys involved is not unreasonable and awards Greene

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Defendants $47,234 in “fees on fees.”

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III. BGA Defendants’ Request

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The Court finds that the time expended by the

The Court has reviewed BGA Defendants’ unopposed request for

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$39,833.25 for “fees on fees” and the declaration filed in support

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of the request.

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reasonable and awards the full amount requested.

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The Court finds that the fees claimed are

CONCLUSION
For the foregoing reasons, the Court GRANTS in part Clainos’s

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request for fees for the reply and awards him $12,181.28; GRANTS

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Greene Defendants’ request for “fees on fees” and awards them

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$47,234; and GRANTS BGA Defendants’ request for “fees on fees” and

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awards them $39,833.25.

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IT IS SO ORDERED.

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Dated: 3/21/2013
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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