Vanginderen v. Cornell University

Filing 38

MOTION for Attorney Fees by Cornell University. (Attachments: # 1 Memo of Points and Authorities in Support of Cornell's Motion for Attorneys' Fees)(Davidson, Clifford) (vet).

1 NELSON E. ROTH, SBN 67350 2 CORNELL UNIVERSITY 3 Garden Avenue 4 Telephone: 5 6 7 8 9 10 12 13 14 16 17 19 20 21 22 23 24 25 26 27 28
v. 300 CCC Building Ithaca, New York 14853-2601 [phone] Facsimile: [phone] [e-mail]

BERT H. DEIXLER, SBN 70614 [e-mail] CLIFFORD S. DAVIDSON, SBN 246119 [e-mail] PROSKAUER ROSE LLP 2049 Century Park East, 32nd Floor Los Angeles, CA 90067-3206 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant,

11 CORNELL UNIVERSITY
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-CV-2045 BTM(JMA) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CORNELL'S MOTION FOR ATTORNEYS' FEES [Per chambers, no oral argument unless requested by the Court] [Notice of Motion and Motion, Declarations of Bert H. Deixler and Clifford S. Davidson, and [Proposed] Order filed concurrently herewith] Hearing Date: August 22, 2008 Time: 11:00 a.m. Place: Courtroom 15 Action Filed: October 1, 2007

15 KEVIN VANGINDEREN,
Plaintiff,

18 CORNELL UNIVERSITY,
Defendant.

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MEMORANDUM OF POINTS AND AUTHORITIES In its June 3, 2008 Order Granting Special Motion to Strike (the "Order"), the Court noted: In conclusion, Cornell's special motion to strike is granted in its entirety . . . . As the prevailing party on the motion to strike, Cornell is entitled to reasonable attorney's fees and costs. Cal. Civ. Proc. Code § 425.26(c). The amount of the attorney's fees shall be determined upon motion by Cornell . . . . Any motion for attorney's fees must be brought within 30 days of this order.

6 Order at 9-10. As documented in Exhibit A to the concurrently filed Declaration of Clifford S. 7 Davidson ("Davidson Declaration"),1 Cornell incurred 150.50 hours in attorneys' fees in bringing 8 and winning its anti-SLAPP motion, and 15.75 hours preparing its Bill of Costs and Motion for 9 Attorneys' Fees. A chart summarizing these fees is attached hereto as Exhibit B. A chart 10 summarizing the time Cornell spent drafting its Bill of Costs and Motion for Attorneys' Fees 11 associated with the anti-SLAPP motion2 is attached to the Davidson Declaration as Exhibit C. 12 Based upon the hours reflected in the Davidson Declaration, and the $350/hour flat rate charged to 13 Cornell as described in the concurrently filed Declaration of Bert H. Deixler ("Deixler 14 Declaration"), Cornell respectfully requests that the Court award to Cornell attorneys' fees in the 15 amount of $65,561.25. 16
The $65,561.25 figure is based on the number of hours worked by Cornell's attorneys on

17 the anti-SLAPP motion multiplied by the rates of those attorneys. "District courts must calculate 18 awards for attorneys' fees using the `lodestar method . . . . The `lodestar' is calculated by 19 20
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Exhibit A is a collection of all bills sent to Cornell, prepared with the assistance of Proskauer's

Accounting Department. Davidson Decl. ¶ 3. Exhibit A is sufficient to support this motion. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) (holding timesheets not per se required if other documentation presented).

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Cornell is entitled to both its fees in prosecuting the anti-SLAPP motion and the fees it incurred

in applying for costs and fees. See Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001) (holding the fee award in anti-SLAPP cases "should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.").

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07-cv-2045 BTM(JMA)

1 mult iplying the number of hours the prevailing party reasonably expended on the litigation by a 2 reasonable hourly rate." Camacho v. Bridgeport Fin. Inc., 523 F.3d 973, 978 (9th Cir. 2008); see 3 also Espinoza v. City of Imperial, 2008 U.S. Dist. LEXIS 45611, *16-17 (S.D. Cal. June 6, 2008) 4 ("The lodestar method applies to the determination of a proper attorneys' fees award for an Anti5 SLAPP prevailing party."). "The amount awarded must be reasonable, and it must also adequately 6 compensate the [prevailing party] for the expense of responding to a baseless suit." Silverstein v. 7 E360insight, LLC, 2008 U.S. Dist. LEXIS 36858, *22 (C.D. Cal. May 5, 2008) (internal 8 quotations and citations omitted) (awarding attorneys' fees on anti-SLAPP motion). "A 9 reasonable hourly rate is that prevailing in the community for similar work." Kearney v. Foley & 10 Lardner, 2008 U.S. Dist. LEXIS 21115, *12 (S.D. Cal. Mar. 18, 2008) (awarding fees to 11 defendant prevailing in anti-SLAPP motion). The reasonableness of a fees award is "to be 12 determined from a consideration of such factors as the nature of the litigation, the complexity of 13 the issues, the experience and expertise of counsel and the amount of time involved." Id. 14
As described in the Deixler Declaration, the rates charged by Proskauer attorneys to

15 Cornell are consistent with (and in fact lower than) prevailing rates among attorneys of similar 16 caliber, education and experience in the community. Deixler Decl. ¶¶ 12, 13. Further, Cornell's 17 $65,561.25 request is reasonable and consistent with awards for successful defendants in other 18 anti-SLAPP cases. For example, in Premier Medical, the California Court of Appeal affirmed an 19 award of $165,000 in attorneys' fees to a defendant in that case after successful prosecution of an 20 anti-SLAPP motion. 163 Cal. App. 4th at 556. Cornell also does not seek fees for the time 21 expended by Nelson E. Roth, Esq. and other lawyers and legal assistants in Cornell's Office of 22 General Counsel. 23
The work of Cornell's attorneys was not duplicative and was necessary to advance several

24 complex legal arguments, such as the application of the single publication rule to the digitization 25 of the Cornell library's newspaper archive and the effect of the discovery rule in tolling statutes of 26 limitations in defamation cases. While Cornell does not seek an enhancement of fees based on the 27 complexity of its anti-SLAPP motion, such complexity more than justifies the time that 28 Proskauer's attorneys spent advocating on behalf of their client and indicates that Cornell's fee
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1 request is reasonable. See Premier Medical, 163 Cal. App. at 558 (noting, in anti-SLAPP case, 2 that the lodestar figure "may be adjusted by the court based on factors including . . . (1) the 3 novelty and difficulty of the questions involved . . . ."). 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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For the foregoing reasons, Cornell respectfully requests that the Court award to Cornell,

5 and tax against Plaintiff, its attorneys' fees in the amount of $65,561.25.

DATED: July 2, 2008

NELSON E. ROTH CORNELL UNIVERSITY BERT H. DEIXLER CLIFFORD S. DAVIDSON PROSKAUER ROSE LLP /s/ -- Clifford S. Davidson Clifford S. Davidson Attorneys for Defendant, CORNELL UNIVERSITY

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