G&G Closed Circuit Events, LLC v. Ho

Filing 29

ORDER Granting in Part and Denying in Part Plaintiff's Application for Attorneys' Fees. Signed by Judge Lucy H. Koh on 7/25/2012. (lhklc1, COURT STAFF) (Filed on 7/25/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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G & G CLOSED CIRCUIT EVENTS, LLC,

United States District Court
For the Northern District of California

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v.

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Plaintiff,

KIM HUNG HO, ET AL.,

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Defendants.

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Case No.: 11-CV-03096-LHK
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
APPLICATION FOR ATTORNEY’S
FEES

On April 16, 2012, the Court granted Plaintiff G & G Closed Circuit Events, LLC’s motion

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for default judgment in this commercial piracy case involving Plaintiff’s unlawful interception of

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Plaintiff’s Program, “Strikeforce: MI Global: Fedor Emilinaenko v. Fabricio Werdum.” See ECF

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No. 26. The Court awarded Plaintiff $18,200.00 in damages for conversion and pursuant to 47

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U.S.C. § 605(e)(3)(C)(i)(II). Id. at 8. On May 16, 2012, Plaintiff filed an application for attorneys’

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fees and costs pursuant to 47 U.S.C. § 605(e)(3)(b)(iii). ECF No. 27. The Clerk of the Court

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awarded $195.52 in costs. ECF No. 28. 1 Accordingly, only the attorneys’ fees remain pending.

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Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without

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oral argument. For the reasons discussed below, Plaintiff’s application for attorneys’ fees is

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The Clerk declined to award $500.00 sought in investigative expenses as outside the ambit of
Civil Local Rule 54-3. The Court notes that the Clerk’s denial of investigative expenses is in
accordance with other decisions in this District. See, e.g., Joe Hand Promotions, Inc. v. White, 11CV-01331-CW-JSC, 2011 WL 6749061, at *3 (N.D. Cal. Dec. 6, 2011) (finding that Plaintiff’s
pre-filing investigation costs were not recoverable), report and recommendation adopted, 11-CV1331-CW, 2011 WL 6749065 (N.D. Cal. Dec. 23, 2011).
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Case No.: 11-CV-03096-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPLICATION FOR ATTORNEY’S
FEES

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GRANTED IN PART and DENIED IN PART.
I.

DISCUSSION
Reasonable attorney’s fees are recoverable under 47 U.S.C. § 605(e)(3)(b)(iii). To

calculate the amount of attorneys’ fees, the Court uses the “lodestar” method. See Ferland v.

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Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (citing Caudle v. Bristow Optical

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Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 1996)). The lodestar is calculated by multiplying the

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number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly

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rate. Id. “In determining reasonable hours, counsel bears the burden of submitting detailed time

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records justifying the hours claimed to have been expended. Those hours may be reduced by the

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United States District Court
For the Northern District of California

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court where documentation of the hours is inadequate; if the case was overstaffed and hours are

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duplicated; if the hours expended are deemed excessive or otherwise unnecessary.” Chalmers v.

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City of L.A., 796 F.2d 1205, 1210 (9th Cir. 1986) (internal citations omitted). The district court

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must base its determination whether to award fees on its judgment as to whether “the work product

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. . . was both useful and of a type ordinarily necessary to advance the . . . litigation.” Armstrong v.

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Davis, 318 F.3d 965, 971 (9th Cir. 2003).

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“In determining a reasonable number of hours, the Court must review detailed time records

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to determine whether the hours claimed by the applicant were unnecessary, duplicative or

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excessive.” Defenbaugh v. JBC & Assoc., Inc., No. 03–0651, 2004 WL 1874978 (N.D. Cal. Aug.

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10, 2004) (citing Chalmers, 796 F.2d at 1210). Where there is a lack of opposition to a party’s

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motions, or where the instant action is routine or substantially similar to prior actions brought by

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the same attorney, a court may find requests for attorney’s fees excessive. E.g., Owen v. Brachfeld,

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No. 07–4400, 2008 WL 5130619 (N.D. Cal. Dec. 5, 2008) (where counsel requested

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reimbursement for a total of 8.9 attorney hours for preparing a summary judgment motion, the

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court awarded only half the requested fees because defendants did not oppose the motion and the

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drafting document was “a matter of course in his practice” and “almost identical to that filed in

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connection with a similar motion”); Sanchez v. Bank of Am., No. 09–5574, 2010 WL 2382347, at

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*5 (N.D. Cal. June 10, 2010) (in calculating attorney’s fees, the court reduced the number of

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Case No.: 11-CV-03096-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPLICATION FOR ATTORNEY’S
FEES

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reasonable hours from 89.8 to thirty, in light of the fact that defendant had “defended itself in near-

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identical prior actions by other plaintiffs” represented by the same attorney).

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Here, Plaintiff’s request for $2,479.50 in fees was calculated based on a chart in the

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Declaration of Thomas P. Riley. However, this amount is not the product of contemporaneous

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time records. Rather, Plaintiff states: “Billable hours for legal services rendered are reconstructed

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by way of a thorough review of the files themselves. Having handled thousands of commercial

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signal piracy files over the last decade and a half, we are most capable of calculating billable hours

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for legal services rendered.” ECF No. 27-1. Thus, the chart in the Riley Declaration is a

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reconstruction of nineteen different billing entries based on counsel’s review of the case file and

United States District Court
For the Northern District of California

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yields the following totals:

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Lead Attorney time: 2.53 hours at $450.00 per hour = $1,138.5.00

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Research Attorney time: 2.00 hours at $300.00 per hour = $600.00

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Paralegal time: 2 hours at $150.00 per hour = $300.00

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Administrative Assistant: 5.88 hours at $75.00 per hour = $441.00

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Plaintiff’s billing records fall short of the type of detailed time records courts require. See,

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e.g., Hensley v. Eckerhart, 461 U.S. 424, 438 n.13 (1983) (finding that the district court properly

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reduced the hours of one attorney by thirty percent to account in part for his failure to keep

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contemporaneous time records); Joe Hand Promotions, Inc. v. Be, No. 11-CV-1333-LHK, 2011

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WL 5105375, at *7 (N.D. Cal. Oct.26, 2011) (denying plaintiff’s request for attorney’s fees under

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nearly identical circumstances); Zynga Game Network Inc. v. Erkan, No. 09-CV-3264-SC, 2010

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WL 3463630, at *2 (N.D. Cal. Aug.31, 2010) (denying a motion for attorney’s fees where plaintiff

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failed to attach actual billing records). Because the billing records were not created

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contemporaneously, the Court finds that they are inherently less reliable. The Court finds that in

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some instances the billing entries represent unnecessary expenditures and in other instances the

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billing entries overstate the amount of time reasonably attributable to the activity.

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Specifically, the Court finds that the hours expended on reviewing the Court’s Order
regarding reassignment of the case (.15 hours of attorney time and .15 hours of administrative
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Case No.: 11-CV-03096-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPLICATION FOR ATTORNEY’S
FEES

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assistant time) and preparing an ex parte application for an order continuing case management

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conference (.5 hours of attorney time) were both unnecessary and excessive. Neither of these

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activities require legal work, nor were they “useful and of a type ordinarily necessary to advance

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the . . . litigation.” Armstrong, 318 F.3d at 971. Accordingly, the Court reduces the total

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fee request by the amount represented by these activities. That is, the Court reduces the total award

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by $303.75. 2
Moreover, the Court finds that the remaining $2,175.75 3 of Plaintiff’s requested fees are

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duplicative and excessive. For example, the $600 billed for 2 hours of administrative assistant time

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and 1 hour of attorney time to prepare a boilerplate complaint, which is nearly identical to

United States District Court
For the Northern District of California

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numerous other complaints filed by Plaintiff’s counsel in this Court, is duplicative and excessive.

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Furthermore, the $900 billed for 2 hours of attorney time and 2 hours of paralegal time to prepare the

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form motion for attorneys’ fees is also duplicative and excessive. See Joe Hand Promotions, Inc.

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v. White, 2011 WL 6749061, at *3 (finding motion for attorneys’ fees and default judgment to be

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form motions, citing cases involving virtually identical motions, and reducing fees by one third); J

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& J Sports Prods., Inc. v. TCOS Enters., Inc., 10-CV-7130, 2012 WL 1361655, at *1-2 (E.D. Pa.

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Apr. 19, 2012) (reducing requested fees for Mr. Riley, unnamed research attorney, paralegal and

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administrative assistant due to boilerplate nature of the filings). Accordingly, the Court reduces the

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requested fees by one third, i.e. by $718.00. 4

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II.

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CONCLUSION
For the foregoing reasons, Plaintiff’s application for attorney’s fees is GRANTED IN

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PART and DENIED IN PART. The Court awards Plaintiff $1,457.75 in attorneys’ fees. 5

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IT IS SO ORDERED.

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Dated: July 25, 2012

_________________________________
LUCY H. KOH
United States District Judge

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$11.25 + $ 67.5 + $225.00 = $303.75
$2,479.5 - $303.75 = $2,175.75
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$2,175.75 * .33 = $718.00
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$2,479.50 - $303.75 -$718.00 = $1,457.75
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Case No.: 11-CV-03096-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPLICATION FOR ATTORNEY’S
FEES