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

Filing 17

ORDER Denying Plaintiff's 15 Motion for Reconsideration. Signed by Judge Michael M. Anello on 9/2/2016. (rlu)

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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 DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

GORDON R. BRUMMELL, et al.,
Defendants.

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[Doc. No. 15]

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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 subsequently moved for an award of attorney’s fees and costs. See Doc. No.

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12. The Court granted Plaintiff’s motion in part, and awarded Plaintiff $400 in costs.

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See Doc. No. 14. Plaintiff now moves for reconsideration, seeking an award of attorney’s

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fees and additional costs. See Doc. No. 15. For the reasons set forth below, the Court

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DENIES Plaintiff’s motion.

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DISCUSSION

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Plaintiff brought this action pursuant to the Federal Communications Act, 47

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U.S.C. § 605 et seq., which prohibits commercial establishments from intercepting and
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broadcasting satellite cable programming, and violation of the Cable & Television

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Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, which prohibits the

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unauthorized reception or interception of communications offered over a cable system.

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

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

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

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

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filing investigative expenses totaling $650.00, which this Court declined to find a

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recoverable cost. As such, the Court awarded Plaintiff costs only, in the amount of $400.

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Plaintiff moves for reconsideration, arguing that the Court’s denial of investigator fees as

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a recoverable cost was error. Plaintiff also requests that the Court reconsider awarding

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Plaintiff attorney’s fees.

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1. Legal Standard

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Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power

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to reconsider a judgment by motion. Fed. R. Civ. P. 59(e). A motion to reconsider a

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judgment under Rule 59(e) seeks “a substantive change of mind by the court.” Tripati v.

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Henman, 845 F.2d 205, 205 (9th Cir. 1988). Rule 59(e) is an extraordinary remedy and,

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in the interest of finality and conservation of judicial resources, should not be granted

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absent highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.

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2003); McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be

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used to relitigate old matters, raise new arguments, or present evidence that could have

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been raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 544 U.S. 471,

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486-87 (2008).

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Under Rule 59(e), it is appropriate to alter or amend a judgment if “(1) the district

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court is presented with newly discovered evidence, (2) the district court committed clear

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error or made an initial decision that was manifestly unjust, or (3) there is an intervening

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change in controlling law.” United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d

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772, 780 (9th Cir. 2009). To carry the burden of proof, a moving party seeking
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reconsideration must show more than a disagreement with the Court’s decision or a

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recapitulation of the cases and arguments previously considered by the court. See United

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States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001).

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2. Analysis

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Plaintiff did not support his request for attorney’s fees with contemporaneous

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billing records, and failed to demonstrate that the hourly rates requested are reasonable

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vis-à-vis the rates charged in “the forum in which the district court sits.” Gonzalez v. City

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of Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013). Plaintiff acknowledges that there

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is no cure at this juncture for the failure to provide contemporaneous billing records.

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Plaintiff does not assert that the Court erred in declining to award fees on this basis.

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Nevertheless, Plaintiff requests reconsideration based on the fact that other courts have

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awarded attorney’s fees in similar cases. Plaintiff argues that the Court can fashion a

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reasonable hourly rate by looking to those cases and a newly filed declaration of counsel.

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However, a motion for reconsideration “is not a vehicle for . . . taking a ‘second bite at

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the apple.’” See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Plaintiff

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did not provide adequate support for the requested attorney’s fees, and fails to set forth a

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proper ground for reconsideration.

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With respect to costs, the Court previously noted that Plaintiff provided no

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authority for the recovery of its investigative fees, and courts have refused to award pre-

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filing investigation fees to the prevailing party. Plaintiff concedes that it failed to present

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any authority for an award of investigative fees in its original moving papers. Plaintiff

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cites to several cases in which the court found investigative fees recoverable. Two of the

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cases are out of circuit, and the third case provides no legal support for its determination.

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Meanwhile, as the Court previously noted, district courts in California continue to

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conclude that a plaintiff in this type of case should not recover investigative fees,

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particularly when the request for fees is insufficiently supported. The Court did not err in

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reaching a similar conclusion in this case.

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///
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CONCLUSION
Having reviewed its previous ruling, the Court is satisfied that it committed no

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error. Plaintiff has not provided any newly discovered evidence. Additionally, there has

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been no intervening change in controlling law. Accordingly, the Court DENIES

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Plaintiff’s motion for reconsideration.

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IT IS SO ORDERED.
DATE: September 2, 2016

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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