Daimler AG v. A-Z Wheels LLC et al

Filing 84

ORDER on Plaintiff's 61 Motion for Attorney Fees. It is ordered, The Court grants Daimler's request for attorneys' fees and orders Defendants to pay $22,997 in fees and $4,459.22 in costs for a total of $27,456.22 with in 30 days of this order. Signed by Magistrate Judge Mitchell D. Dembin on 4/23/2018. (All non-registered users served via U.S. Mail Service)(mpl) Modified to update docket text and replace document on 4/23/2018 (mpl). (Main Document 84 replaced on 4/23/2018) (mpl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAIMLER AG, a German
corporation,

Case No.: 16cv875-JLS-MDD
Plaintiff,

v.
A-Z WHEELS LLC, et al., et al.,

ORDER ON PLAINTIFF'S
MOTION FOR ATTORNEYS' FEES
[ECF No. 61]

Defendants.

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Before the Court is Plaintiff Daimler AG’s (“Daimler”) request for the

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attorneys’ fees and costs expended to enforce the Court’s September 7, 2017,

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Order on the parties’ Joint Motion for Determination of Discovery Dispute

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(ECF No. 43). (ECF No. 61).

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The Court’s September 7 Order required the Moalemi Defendants to

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provide full answers and produce responsive documents to supplement

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deficient discovery responses within two weeks. (ECF No. 43) Daimler’s

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December 5, 2017, Motion for Sanctions stated that despite the Court’s

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Order, the Moalemi Defendants had not complied. (ECF No. 49-1 at 5-6). At

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the January 8 hearing, the Court informed Daimler that it could seek to

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recover the costs and fees associated with bringing the Motion for Sanctions.
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(ECF No. 60). Defendants were given until February 2, 2018, to respond to

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Daimler’s fee request. (Id.) Defendants filed a late opposition to the request

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on February 11, 2018. (ECF No. 64).

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Daimler seeks a total award of $29,384.22 including $24,925

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(corresponding to 69.4 hours) for preparation, filing, traveling to, and

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attending the January 8, 2018 sanctions hearing. (ECF No. 61-1 at 5-7).

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Daimler also seeks $4,459.22 in costs required to bring the motion for

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sanctions and travel to the hearing. (ECF No. 61-3 at 5).
LEGAL STANDARD

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The Supreme Court has made clear that determining the appropriate

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amount of attorneys’ fees “should not result in a second major litigation.”

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Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). In determining the size of a

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fee award, “trial courts need not, and indeed should not, become green-

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eyeshade accountants.” Fox v. Vice, 131 S.Ct. 2205, 2216 (2011). Courts

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should not strive to “achieve auditing perfection” but should attempt “to do

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rough justice.” Id. In so doing, courts may “take into account[] overall sense

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of a suit” and may even “use estimates in calculating and allocating an

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attorney’s time.” Id.

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Even though it is impossible to determine with mathematical precision

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the amount of attorneys’ fees and costs incurred by one party as a direct

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result of misconduct, courts must “abide by the injunction of the arithmetic

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teacher: Show your work!” Padgett v. Loventhal, 706, F.3d 1205, 1208 (9th

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Cir. 2013); Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183, 185 (9th

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Cir. 1996).

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In the Ninth Circuit, courts calculate awards for attorneys’ fees using

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the “lodestar” method. Haeger v. Goodyear Tire and Rubber Co., 813 F.3d

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1233, 1249 (9th Cir. 2016); Hensley, 461 U.S. at 429. “The ‘lodestar’ is
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calculated by multiplying the number of hours the prevailing party

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

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v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v.

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Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (2001)). The reasonableness of

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the hourly rate is determined by the prevailing market rates in the

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community in which the court sits, for similar litigation by attorneys of

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comparable experience, skill and reputation. Blum v. Stevenson, 465 U.S.

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886, 895 and n.11 (1984).
ANALYSIS

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I. Reasonable Hourly Rate
Daimler lists the hourly rates for each of the partners, associates, and
paraprofessionals whose time entries are at issue.

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Timekeeper

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Shauna Wertheim Partner, Marbury

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Timothy Johnson

Associate, Marbury 7

$320

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Joanna Cohn

Associate, Marbury 8

$260

Rose Harvey

Senior Litigation

$110

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Position

Years’ Experience

Hourly Rate

30+

$400

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Paralegal, Marbury

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Daimler supports the hourly rates with a declaration from lead counsel

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Shauna Wertheim describing the skill and experience of each attorney. (ECF

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No. 61-1 at 7-8; ECF No. 61-2 ¶¶9-11). Daimler also supports the attorney’s

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rates with data from the American Intellectual Property Law Association

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(“AIPLA”) Report of the Economic Survey (“AIPLA 2017 Survey”), indicating

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that their partner and non-partner attorney rates are below the average rate

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for other firms. (ECF No. 61-1 at 8-9; ECF No. 62-7 at 2-7). Daimler cites to

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other litigation in this district where the AIPLA 2017 Survey was used to
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determine reasonable fee rates. (ECF No. 61-1 at 8-9) (see Thermolife Int’l,

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LLC v. Myogenix Corp., No. 13-cv-651 JLS (MDD), 2018 U.S. Dist. LEXIS

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3229, at *8-11 (S.D. Cal. January 8, 2018). Daimler contends that the

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reasonableness of their rates is further supported by the fact that their rates

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are below those of other cases charged and approved for intellectual property

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litigation in this district. (See Flowrider Surf, Ltd. v. Pacific Surf Designs,

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Inc., 2017 U.S. Dist. LEXIS 76757, at *8-10). Finally, Daimler contends that

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their rates, in light of the time spent from the Moalemi Defendants’ initial

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defiance of this Court’s Order on the Joint Motion in September, 2017, are

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more than reasonable. (ECF No. 61-1 at 9-10).

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Defendants’ untimely objection did not challenge Daimler’s hourly

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rates. Rather, Defendants contend that the total requested fees are excessive

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for “pursuing a straightforward discovery motion” that was granted only in

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part. (ECF No. 64 at 1). In support of that contention, Defendants

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distinguish Daimler’s fee request against other cases where discovery

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motions have resulted in smaller awards. (Id. at 2) (citing Pelayo v. Platinum

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Limousine Servs., Inc., 2018 WL 310126, at *8 (D. Haw. Jan. 5, 2018); Ball v.

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Manalto, Inc., 2017 WL 2378923, at *2 (W.D. Wash. June 1, 2017); Scott-

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Iverson v. Independent Health Ass'n, Inc., 2016 WL 1457881, at *4 (W.D.N.Y.

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Apr. 14, 2016); Penta v. Costco Wholesale Corp., 2016 WL 1171612, at *8

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(E.D.N.Y. Mar. 25, 2016); McAfee v. Schneider Nat'l Carriers, Inc., 2015 WL

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9319178, at *6 (N.D. Tex. Dec. 23, 2015)). The cases Defendants rely on did

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not take place in this district, let alone a California court.

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The Court finds that Daimler has produced satisfactory evidence that

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the hourly rates for its attorneys and staff are reasonable. The hourly rates

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are supported by counsel’s detailed declaration, are consistent with those

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previously approved in this District, are consistent with the survey data
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provided, and are consistent with this Court’s familiarity of the rates charged

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in the San Diego community. The Court further finds Daimler has met its

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burden to produce “satisfactory evidence, in addition to the affidavits of its

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counsel, that the requested rates are in line with those prevailing in the

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community for similar services of lawyers of reasonably comparable skill and

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reputation.” Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir.

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1987); see also United Steelworkers of Am. V. Phelps Dodge Corp., 896 F.2d

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403, 407 (9th Cir. 1990) (courts should consider affidavits of the movant’s

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attorney and other attorneys regarding prevailing fees in the community, and

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rate determinations in other cases, particularly those setting a rate for the

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movant’s attorney).

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II. Reasonably Expended Hours

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Daimler provides detailed time entries in support of its request. (ECF

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No. 61-3 at 2-5; ECF No. 61-4 at 2-3; ECF No. 61-5 at 2-3; ECF No. 61-6 at 2-

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13). Defendants do not request any specific reductions, rather, they object to

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the total amount requested. (ECF No. 64 at 2). As Defendants failed to file a

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timely opposition, the Court will not consider their objections. The Court

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reviewed the entries and finds the hours expended to be reasonable and the

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tasks billed to be appropriate to the individuals’ stations. The Court will,

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however, include a reduction for block billing.

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Courts are to “reduce hours that are billed in block format … because

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block billing makes it more difficult to determine how much time was spent

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on particular activities.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th

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Cir. 2007), see also Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th

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Cir.2000) (holding that a district court may reduce hours to offset “poorly

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documented” billing). Hours may be reduced if the billing makes it

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impossible for the Court to determine how much time is spent on each task
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and thus whether the time spent was reasonable. See Banas v. Volcano

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Corp., 47 F.Supp 3d 957, 867-68 (N.S. Cal 2014). It is well within a court’s

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authority to reduce block-billed hours by 10% to 30%. Welch v. Metropolitan

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Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007).

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After a careful review of Plaintiff’s fee records for evidence of block-

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billing, the Court concludes that the majority of the entries do not pose a

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block-billing problem. However, several entries are problematic: ECF No. 61-

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3 at 2 (9/22/17 entry of 2.7 hours, 11/28/17 entry of 2.4 hours, and 11/30/17

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entry of 4.2 hours); id. at 3 (12/1/17 entry of 3.7 hours, 12/3/17 entry of 1.9

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hours, 12/4/17 entry of 3.2 hours, 12/6/17 entry of 3.6 hours, and 12/28/17

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entry of 1.7 hours); id. at 4 (1/6/18 entry of 2.4 hours). A 20% reduction to the

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block-billed hours is appropriate on this basis. Thus, the Court reduces

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Daimler’s fees by $1,928.
CONCLUSION

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The Court GRANTS Daimler’s request for attorneys’ fees and

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ORDERS Defendants to pay $22,997 in fees and $4,459.22 in costs for a total

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of $27,456.22 within 30 days of this order.

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IT IS SO ORDERED.

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Dated: April 23, 2018

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