J & J Sports Productions, Inc. v. Brummell et al

Filing 14

ORDER granting in part and denying in part Plaintiff's 12 Motion for Attorney Fees and Costs. Court awards Plaintiff $400 in costs. Signed by Judge Michael M. Anello on 6/29/2016. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15cv2601-MMA (MDD)

J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,

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v.

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
UNOPPOSED MOTION FOR
ATTORNEY’S FEES AND COSTS

GORDON R. BRUMMELL, et al.,

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Defendants.

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[Doc. No. 12]

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On May 2, 2016, the Court entered default judgment in favor of Plaintiff J&J

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Sports Productions, Inc. and against Defendants Gordon R. Brummell, individually and

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doing business as MJ’s Bar & Grill, and Brummell and Associates, LLC. See Doc. No.

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11. Plaintiff now moves for an award of attorney’s fees and costs. See Doc. No. 12. The

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motion is unopposed. For the reasons set forth below, the Court GRANTS IN PART

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and DENIES IN PART Plaintiff’s motion.

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DISCUSSION

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On November 19, 2015, Plaintiff filed suit against Defendants for alleged violation

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of the Federal Communications Act, 47 U.S.C. § 605 et seq., which prohibits commercial

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establishments from intercepting and broadcasting satellite cable programming, and
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violation of the Cable & Television Consumer Protection and Competition Act of 1992,

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47 U.S.C. § 553, which prohibits the unauthorized reception or interception of

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communications offered over a cable system. This action is one of many similar actions

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filed by Plaintiff in this and other courts, against defendant sports bars, stores, and other

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establishments who allegedly broadcasted pay-per-view sporting events illegally. On

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May 2, 2016, the Court entered default judgment against Defendants. See Doc. No. 11.

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The Court awarded Plaintiff $3000 in damages, comprised of Plaintiff’s actual damages

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in the amount of $2,000.00, the licensing fee Defendants should have paid for the

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Program, plus $1,000.00 in statutory damages under 47 U.S.C. § 605. Id.

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Reasonable attorney’s fees and costs are recoverable by the prevailing party

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pursuant to 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff requests attorney’s fees in the amount

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of $2,195.00 and costs in the amount of $1,050.00. However, Plaintiff does not provide

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sufficient support for his attorney’s fees request, and he seeks reimbursement of pre-

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filing investigative expenses totaling $650.00, which other courts have declined to award.

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See, e.g., J & J Sports Prods., Inc. v. Diaz, No. 12-CV-1106, 2014 U.S. Dist. LEXIS

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55858 (S.D. Cal. Apr. 18, 2014) (citing J & J Sports Prods., Inc. v. Ortiz, No. 12-CV-

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05766, 2014 U.S. Dist. LEXIS 39485 (N.D. Cal. Mar. 24, 2014)).

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To determine reasonable attorney’s fees, this Court must use the lodestar method.

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Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1152 n.4 (9th Cir. 2001) (internal

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citations omitted). “The ‘lodestar’ is calculated by multiplying the number of hours the

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prevailing party reasonably expended on the litigation by a reasonable hourly rate.”

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Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). First, Plaintiff does not

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support his request for attorney’s fees with contemporaneous billing records. J & J

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Sports Prods., Inc. v. Napuri, No. C 10-04171, 2013 U.S. Dist. LEXIS 116238, 2013 WL

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4428573, at *2 (N.D. Cal. Aug. 15, 2013) (“Absent the submission of detailed

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contemporaneous time records justifying the hours claimed to have been expended on

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this case, the Court gives little weight to the figures provided by Plaintiff.”). Second,

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Plaintiff does not demonstrate that the hourly rates requested are reasonable vis-à-vis the
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rates charged in “the forum in which the district court sits.” Gonzalez v. City of

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Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013). Plaintiff provides only the

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unsupported declaration of counsel and the Laffey Matrix, which provides prevailing

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market rates in the District of Columbia. See Riley Decl. ¶ 5, Ex. 2. “[T]he fee applicant

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bears the burden of establishing entitlement to an award and documenting the appropriate

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hours expended and hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

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Plaintiff has not met this burden and is therefore not entitled to an award of attorney’s

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fees.

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With respect to costs, Plaintiff requests a total award of $1,050.00, consisting of

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$650 in pre-filing investigative fees and the $400 filing fee required to institute this

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action. Plaintiff provides no authority for the recovery of its investigative fees, and

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courts have refused to award pre-filing investigation fees to the prevailing party. See

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Diaz, 2014 U.S. Dist. LEXIS 55858, at *9-10 (citing Ortiz, 20141 U.S. Dist. LEXIS

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39485; Napuri, 2013 U.S. Dist. LEXIS 116238; Joe Hand Promotions Inc. v. Piacente,

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No. C-10-3429, 2011 U.S. Dist. LEXIS 60676 (N.D. Cal. Apr. 11, 2011); J & J Sports

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Prods., Inc. v. Schrader Rest. Corp., 485 F. Supp. 2d 422, 424 (S.D.N.Y. 2007)).

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Accordingly, the Court will award Plaintiff costs in the amount of $400 for

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reimbursement of the filing fee.

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CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART
Plaintiff’s motion. The Court awards Plaintiff $400 in costs.
IT IS SO ORDERED.
DATE: June 29, 2016

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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