Linlor v. The National Rifle Association of America

Filing 33

ORDER Denying 28 Defendant's Motion for Reconsideration. The Court DENIES Defendant's motion for reconsideration. Because the Court denies Defendant's motion for reconsideration, the Court declines to address Defendant's second request for attorneys' fees (Doc. No. 29). Signed by Judge Michael M. Anello on 8/9/2017. (All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 SOUTHERN DISTRICT OF CALIFORNIA JAMES LINLOR, an individual, Case No.: 17cv203-MMA (JMA) ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION Plaintiff, v. THE NATIONAL RIFLE ASSOCIATION OF AMERICA, [Doc. No. 28] Defendant. 17 18 19 Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action 20 against Defendant the National Rifle Association of America (“Defendant”) alleging 21 Defendant violated California Civil Code Section 3344 by addressing and mailing 22 membership renewal notices and other marketing material to Plaintiff and his minor 23 child. See Doc. No. 1. On May 8, 2017, the Court dismissed Plaintiff’s First Amended 24 Complaint (“FAC”) with prejudice. See Doc. No. 17. Defendant requested attorneys’ 25 fees and costs, which the Court granted in part, awarding Defendant $493.90 in costs. 26 See Doc. No. 22. Defendant now moves for reconsideration, seeking an award of 27 attorneys’ fees. See Doc. No. 28. Plaintiff filed an opposition to Defendant’s motion, to 28 which Defendant replied. See Doc. Nos. 30, 31. For the reasons set forth below, the -1- 17cv203-MMA (JMA) 1 Court DENIES Defendant’s motion. 2 DISCUSSION 3 Plaintiff brought this action alleging one cause of action for commercial 4 misappropriation under California Civil Code Section 3344. Section 3344 prohibits a 5 person from knowingly using another’s name in any manner, on or in products, 6 merchandise, or goods, or for purposes of advertising or selling products, merchandise, 7 goods or services, without such person’s prior consent. Cal. Civ. Code § 3344(a). The 8 Court dismissed Plaintiff’s FAC with prejudice, and Defendant requested attorneys’ fees 9 in the amount of $18,255.00 and costs in the amount of $545.61. See Doc. No. 9. 10 However, Defendant did not provide sufficient support for its attorneys’ fees request. As 11 such, the Court only awarded $493.90 in costs, representing Defendant’s service of 12 process and filing costs which are recoverable under California Code of Civil Procedure 13 § 1033.5. See Doc. No. 22 at 4. 14 Defendant moves for reconsideration, requesting the Court reconsider the portion 15 of the Court’s May 26, 2017 Order denying attorneys’ fees in the amount of $18,255.00. 16 See Doc. No. 28-1 at 2. Defendant argues the Court’s “application of federal law to a 17 state-law fee claim was clear error that resulted in manifest injustice, barring Defendant’s 18 award of mandatory attorneys’ fees under Civil Code section 3344.” Id. 19 20 1. Legal Standard Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power to 21 reconsider a judgment by motion. Fed. R. Civ. P. 59(e). A motion to reconsider a 22 judgment under Rule 59(e) seeks “a substantive change of mind by the court.” Tripati v. 23 Henman, 845 F.2d 205, 205 (9th Cir. 1988). Rule 59(e) is an extraordinary remedy and, 24 in the interest of finality and conservation of judicial resources, should not be granted 25 absent highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 26 2003); McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be 27 used to relitigate old matters, raise new arguments, or present evidence that could have 28 -2- 17cv203-MMA (JMA) 1 been raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471, 2 485 n.5 (2008). 3 Under Rule 59(e), it is appropriate to alter or amend a judgment if “(1) the district 4 court is presented with newly discovered evidence, (2) the district court committed clear 5 error or made an initial decision that was manifestly unjust, or (3) there is an intervening 6 change in controlling law.” United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 7 772, 780 (9th Cir. 2009). To carry the burden of proof, a moving party seeking 8 reconsideration must show more than a disagreement with the Court’s decision or a 9 recapitulation of the cases and arguments previously considered by the court. See United 10 11 12 States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). 2. Analysis As an initial matter, the Court considered and applied California law in ruling on 13 Defendant’s request for attorneys’ fees in its May 26, 2017 Order. See Doc. No. 22. For 14 example, the Court expressly stated that: 15 16 17 18 19 20 21 22 23 24 25 26 27 [i]n diversity cases, as is the case here, “the availability of attorney’s fees is governed by state law.” Bonner v. Fuji Photo Film, 2008 WL 410260, at *2 (N.D. Cal. Feb. 12, 2008). California Civil Code Section 3344 provides that “[t]he prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” Cal. Civ. Code § 3344(a) (emphasis added). Thus, attorney’s fees and costs are mandatory under Section 3344. See Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 607, 618 (Cal. Ct. App. 2006) (“The mandatory fee provision of section 3344, subdivision (a) leaves no room for ambiguity.”). Doc. No. 22 at 2. Additionally, the Court noted: California courts utilize the lodestar method to calculate an award of attorneys’ fees. Ketchum v. Moses, 17 P.3d 735, 742 (Cal. 2001). The Court calculates the lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. See id. at 741. The Court may then adjust the lodestar figure in light of a number of relevant factors specific to the case. See Serrano v. Priest, 569 P.2d 1303, 1316-17 (Cal. 1977). 28 -3- 17cv203-MMA (JMA) 1 2 Id. In its Order, the Court cited to a sampling of federal cases by way of example in 3 addressing the deficiencies in Defendant’s fee application. See id. at 3. As the Supreme 4 Court noted, “the fee applicant bears the burden of establishing entitlement to an award 5 and documenting the appropriate hours expended and hourly rate.” Hensley v. Eckerhart, 6 461 U.S. 424, 437 (1983); see also De La Riva Const., Inc. v. Marcon Eng’g, Inc., 2014 7 WL 794807, at *4 (S.D. Cal. Feb. 27, 2014) (noting that under California law, the party 8 seeking fees bears the burden of demonstrating that the amount requested is reasonable). 9 Defendant failed to submit sufficient documentation to support its requested fee award 10 under California and federal law. As such, Defendant fails to set forth a proper ground 11 for reconsideration. 12 With respect to defense counsel’s billing records, Defendant argues “it appears that 13 the Court applied federal standards and gave little or no weight to Defendant’s counsel’s 14 sworn statements about the number of hours they reasonably expended on this matter. 15 This was clear error making reconsideration appropriate.” Doc. No. 28-1 at 6. The 16 Court, however, did not indicate that contemporaneous billing records are required in 17 order to support a fee application. While attorneys need not necessarily submit 18 contemporaneous time records under California law, attorneys must provide sufficiently 19 detailed documentation of services renders and hours expended to ensure that trial courts 20 are not “placed in the position of simply guessing at the actual value of the attorney[s’] 21 services.” Martino v. Denevi, 182 Cal. App. 3d 553, 559 (Cal. Ct. App. 1986). “[A] fee 22 request ordinarily should be documented in great detail[.]” Weber v. Langholz, 46 Cal. 23 Rptr. 2d 677, 683 (Cal. Ct. App. 1995); see also Ketchum v. Moses, 17 P.3d 735, 741 24 (Cal. 2001) (“[T]rial courts must carefully review attorney documentation of hours 25 expended. . . .”). Although defense counsel did provide some information as to the 26 number of hours expended on this case, the time entries are block-billed and vague. See 27 Doc. Nos. 9-1, 9-2. While block billing is not “objectionable per se,” block billing is “a 28 risky choice since the burden of proving entitlement to fees rests on the moving party.” -4- 17cv203-MMA (JMA) 1 Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1325 (Cal. Ct. App. 2008). 2 Moreover, even if the Court were able to determine the number of hours reasonably 3 expended, Defendant did not provide the Court with sufficient information to determine 4 the hourly rate of each attorney who performed work on this case. 5 With respect to defense counsel’s requested hourly rates, Defendant argues that 6 “[u]nder California law, an attorney’s sworn declaration is sufficient evidence that his or 7 her hourly rate is reasonable within the relevant legal community, especially when that 8 rate is unopposed.” Doc. No. 28-1 at 6 (emphasis in original) (citing MBNA America 9 Bank, N.A. v. Gorman, 54 Cal. Rptr. 3d 724, 733 (Cal. App. Dep’t Super. Ct. 2006) 10 (“[T]he moving party may satisfy its burden through its own affidavits, without 11 additional evidence.”). While Defendant correctly states the law on this issue, Defendant 12 has not met its burden of demonstrating that the requested rates are reasonable in the 13 relevant market. See PLCM Grp. v. Drexler, 997 P.2d 511, 518 (Cal. 2000), as modified 14 (June 2, 2000) (“The reasonable hourly rate is that prevailing in the community for 15 similar work.”). Specifically, counsel stated that the proffered rates are “consistent with 16 the billing rates in the legal community of Los Angeles County and with respect to this 17 type of litigation.” See Doc. Nos. 9-1 at 2; 9-2 at 3. Here, however, the relevant market 18 is San Diego—not Los Angeles County. See De La Riva Const., Inc. v. Marcon Eng’g, 19 Inc., 2014 WL 794807, at *5 (S.D. Cal. Feb. 27, 2014) (“Because Plaintiff litigated this 20 action in San Diego, the San Diego legal community is the relevant market . . . .”). 21 Determining a reasonable rate in the local market is “one of the means of providing 22 some objectivity to the process of determining reasonable attorney fees,” which is “vital 23 to the prestige of the bar and the courts.” Nichols v. City of Taft, 66 Cal. Rptr. 3d 680, 24 687 (Cal. Ct. App. 2007) (internal quotation marks omitted). By failing to provide 25 information demonstrating the requested rates are reasonable in San Diego, Defendant 26 presented insufficient information for the Court to determine reasonable fees. See 27 Martino, 182 Cal. App. 3d at 558 (noting that in the absence of “crucial information” 28 including “the number of hours worked, billing rates, [and] types of issues dealt with . . . -5- 17cv203-MMA (JMA) 1 the trial court is placed in the position of simply guessing at the actual value of the 2 attorney’s services. That practice is unacceptable and cannot be the basis for an award of 3 fees.”). Thus, the Court did not err in concluding Defendant failed to meet its burden of 4 demonstrating the reasonableness of its fee award. 5 In its motion for reconsideration, Defendant argues for the first time that the Court 6 may consider defense counsel’s “home-market” rate where retaining counsel in San 7 Diego would have been impractical or imprudent. Doc. No. 28-1 at 8-9. California 8 courts recognize an exception in which a court may compensate out of town counsel at 9 higher rates than local counsel where the plaintiff shows that local counsel was 10 unavailable or impractical. See Ctr. For Biological Diversity v. Cnty. of San Bernardino, 11 115 Cal. Rptr. 3d 762, 772-75 (Cal. Ct. App. 2010). However, Defendant did not submit 12 any evidence with its initial fee request of any good faith effort to retain local counsel. 13 Moreover, a Rule 59 motion may not be used to raise new arguments or present evidence 14 that could have been raised previously. See Exxon Shipping Co., 554 U.S. at 485 n.5. As 15 such, the Court declines to consider this argument. 16 Finally, Defendants asks the Court to exercise its discretion in permitting 17 Defendant to “rectify any deficiencies so that Defendant may recover its statutorily 18 mandated fees” by considering Defendant’s concurrently filed Second Request for 19 Attorneys’ Fees (Doc. No. 29). Doc. No. 28-1 at 11. However, a motion for 20 reconsideration “is not a vehicle for . . . taking a second bite at the apple.” Sequa Corp. 21 v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (internal quotation marks omitted). 22 Further, it is not this Court’s practice to permit the moving party leave to amend its initial 23 fee request. See Uriarte v. Bostic, 2017 WL 3387612, at *3 (S.D. Cal. Aug. 7, 2017) 24 (denying the defendants’ request for attorneys’ fees for failure to provide sufficient 25 information to calculate the applicable lodestar figure); J&J Sports Prods., Inc. v. 26 Brummell, 2016 WL 3552039, at *1 (S.D. Cal. June 29, 2016) (noting the movant “has 27 not met this burden and is therefore not entitled to an award of attorney’s fees.”). 28 -6- 17cv203-MMA (JMA) 1 2 In sum, Defendant did not provide adequate support for the requested attorneys’ fees, and fails to set forth a proper ground for reconsideration. 3 4 CONCLUSION Having reviewed its previous ruling, the Court is satisfied that it committed no 5 error. Defendant has not provided any newly discovered evidence. Additionally, there 6 has been no intervening change in controlling law. Accordingly, the Court DENIES 7 Defendant’s motion for reconsideration. Because the Court denies Defendant’s motion 8 for reconsideration, the Court declines to address Defendant’s second request for 9 attorneys’ fees (Doc. No. 29). 10 IT IS SO ORDERED. 11 12 13 14 15 Dated: August 9, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- 17cv203-MMA (JMA)

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