Carlo Bay Enterprise, Inc v. Two Amigo Restaurant, Inc et al

Filing 24

ORDER: Plaintiff Carlo Bay Enterprise, Inc.'s Motion for Award of Attorneys' Fees and Non-Taxable Expenses 21 is GRANTED. Plaintiff's Proposed Bill of Costs 22 is GRANTED. The Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 1/5/2015. (KBT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARLO BAY ENTERPRISE, INC.,
Plaintiff,
v.

Case No. 8:14-cv-1989-T-33TGW

TWO AMIGO RESTAURANT, INC.,
ET AL.,
Defendants.
______________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Carlo Bay Enterprise, Inc.’s (Carlo Bay) Motion for
Award of Attorneys’ Fees and Non-Taxable Expenses (Doc. #
21), accompanying memorandum of law (Doc. # 23), and Proposed
Bill of Costs (Doc. # 22), all filed on December 22, 2014.
I.

Background
On August 18, 2014, Carlo Bay initiated this action

against Defendants Two Amigo Restaurant, Inc., Phillip Lopez,
and

William

Lopez

for

(1)

trademark

infringement,

(2)

contributory infringement, (3) false designation of origin,
(4) common law unfair competition and trademark infringement,
(5)

trademark

dilution

under

Florida

law,

(6)

trademark

infringement under Florida law, and (7) violation of the
Florida Unfair Competition Act. (See Doc. # 1). Defendants

failed to timely appear and respond in this action. As a
result, on September 15, 2014, Carlo Bay applied for Clerk’s
entry of default against Two Amigo Restaurant. (Doc. # 9).
Thereafter, Carlo Bay applied for Clerk’s entry of default
against Phillip Lopez and William Lopez on September 19, 2014.
(Doc. ## 11, 12). The Clerk entered default against all three
Defendants on September 22, 2014. (Doc. ## 13-15).
Carlo Bay filed a Motion for Entry of Default Judgment
on November 20, 2014 (Doc. # 18), which this Court granted on
December 8, 2014 (Doc. # 19). In its Order, the Court provided
that “[i]f Plaintiff intends to file a motion for attorney
fees in this matter, Plaintiff is directed to do so on or
before December 22, 2014. Any such motion must be accompanied
by a detailed fee ledger itemizing the hours worked in this
case.” (Id.). Carlo Bay filed the present Motion for Award of
Attorneys’ Fees and Non-Taxable Expenses on December 22, 2014
(Doc. # 21), accompanied by a detailed fee ledger (Doc. # 211), and an affidavit of Carlo Bay’s counsel (Doc. # 21-2).
Furthermore, Carlo Bay filed a Proposed Bill of Costs (Doc.
# 22) and a memorandum of law in support of its request (Doc.
# 23).
II.

Analysis
A.

Attorneys’ Fees

2

By way of the present Motion, Carlo Bay requests an award
of reasonable attorneys’ fees pursuant to the Lanham Act, as
set forth in 15 U.S.C. § 1117(a). (See Doc. # 21). Section
1117(a)

provides,

in

relevant

part,

“[t]he

court

in

exceptional cases may award reasonable attorney fees to the
prevailing party.” Exceptional cases are cases in which the
infringing party acts in a malicious, fraudulent, deliberate,
or willful manner. Burger King Corp. v. Pilgrim's Pride Corp.,
15 F.3d 166, 168 (11th Cir. 1994).
In its December 8, 2014, Order, this Court found that,
in addition to the presumption raised by Defendants’ default, 1
Carlo

Bay

offered

sufficient

evidence

demonstrating

that

Defendants’ infringement was willful. (Doc. # 19 at 15).
Indeed, the Court found, as did the court in Rolls-Royce PLC
v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 157 (E.D.N.Y.
2010), “it would be difficult for the court to conclude that
the

infringements

were

anything

but

willful.”

See

also

Chanel, Inc. v. Mesadieu, No. 6:08-cv-1557-ORL-31KRS, 2009 WL
2496586, at *9 (M.D. Fla. Aug. 12, 2009) (willful manner
established where defendant continued to infringe on marks

1

See PetMed Express, Inc. v. MedPets.com, Inc., 336 F.
Supp. 2d 1213, 1220 (S.D. Fla. 2004) (“[T]he Court may infer
willfulness from Defendants’ default.”).

3

after receipt of two cease-and-desist letters). Therefore,
having

determined

that

an

award

of

attorneys’

fees

is

warranted given Defendants’ willful conduct, the Court turns
to a consideration of the appropriate amount.
Carlo

Bay’s

counsel

contends

that

to

date,

he

has

incurred attorneys’ fees in the amount of $14,320.00, which
he represents is reasonable. (Doc. # 21-2 at 2). This amount
includes the work counsel performed at $425.00 per hour and
the work his associate performed at $250.00 per hour. (Id. at
3-4).
This Court is afforded broad discretion in addressing
attorneys’ fees issues. See Villano v. City of Boynton Beach,
254

F.3d

1302,

1305

(11th

Cir.

2001)

(“Ultimately,

the

computation of a fee award is necessarily an exercise of
judgment because there is no precise rule or formula for
making these determinations.”) (internal citation omitted).
The

fee

applicant

bears

the

burden

of

establishing

entitlement to the hours requested as well as to the hourly
rate.

Webb v. Bd. of Educ. of Dyer Cnty., 471 U.S. 234, 242

(1985). Further, the fee applicant must support the number of
hours worked. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
If an attorney fails to carry his or her burden, the Court
“is itself an expert on the question [of attorneys’ fees] and

4

may consider its own knowledge and experience concerning
reasonable

and

proper

fees.”

Norman

v.

Hous.

Auth.

of

Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
Upon review of the documents provided by Carlo Bay’s
counsel (Doc. ## 21, 21-1, 21-2, 22, 23), the Court determines
that the attorneys’ fees requested are reasonable under the
circumstances of this case. In particular, the Court notes
that Carlo Bay, to date, has paid counsel over $9,000.00 in
legal fees. (Doc. # 21-2 at 4). Furthermore, the request is
accompanied

by

a

comprehensive

fee

ledger

appropriately

detailing the basis for a fee award in this matter. (See Doc.
#

21-1).

Therefore,

the

Court

finds

that

the

requested

$14,320.00 is appropriate. Accordingly, Carlo Bay’s Motion is
granted as to attorneys’ fees.
B.

Costs

Carlo Bay also requests an award of costs in the amount
of $1,230.02, pursuant to the Lanham Act. (See Doc. ## 2122). Specifically, as set forth in its Proposed Bill of Costs,
Carlo Bay seeks compensation for the following costs: $400.00
for fees of the Clerk, $340.00 for fees for service of summons
and subpoena, $86.50 for fees for exemplification and the
costs of making copies, and $403.52 for other costs (including
Pacer

and

WestLaw

access,

postage,

5

fax

expenses,

and

parking). (Doc. # 22). As Defendants have failed to appear in
this action, the Court considers the Proposed Bill of Costs
as unopposed.
Upon due consideration, and for the reasons specified
above, the Court grants the requested attorneys’ fee of
$14,320.00.

Carlo

Bay’s

counsel

is

further

entitled

to

$1,230.02 in costs. Thus the total award of fees and costs
amounts to $15,550.02.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Carlo Bay Enterprise, Inc.’s Motion for Award
of Attorneys’ Fees and Non-Taxable Expenses (Doc. # 21)
is GRANTED.

(2)

Plaintiff’s

Proposed

Bill

of

Costs

(Doc.

#

22)

GRANTED.
(3)

The Clerk is directed to CLOSE THIS CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this

5th day of January, 2015.

Copies to: All counsel and parties of record

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is