Righthaven LLC v. LEON et al

Filing 52

ORDER Granting 42 Motion for Attorney Fees. Plaintiff Righthaven is ORDERED to pay Mr. DeVoy and Randazza Legal Group $3,815.00 in fees and costs. Signed by Judge Gloria M. Navarro on 7/5/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RIGHTHAVEN, LLC,
Plaintiff,
vs.

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MICHAEL LEON et al.,
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Defendant.

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Case No.: 2:10-cv-01672-GMN-LRL
ORDER

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Before the Court is Defendant Michael Leon’s Motion for Attorney’s Fees and Costs

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(ECF No. 42). Plaintiff Righthaven filed a Response (ECF No. 46) and Defendant filed a

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Reply (ECF No. 48).

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Plaintiff filed suit against Defendant Leon alleging copyright infringement pursuant to

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17 U.S.C. § 501 on September 27, 2010. Plaintiff filed an Amended Complaint on November

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24, 2011 before serving any defendants. Defendant Leon was eventually served with a

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complaint and subsequently filed an Answer (ECF No. 19) and Motion to Dismiss (ECF No.

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23) the complaint. Defendant, a pro se party, filed other motions and documents regarding the

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Amended Complaint. Defendant Denise Nichols also appeared and filed a Motion to Dismiss

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(ECF No. 22). After the multiple filing from the Defendants, the Court became suspicious that

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there may have been a problem with service of the Amended Complaint and therefore set a

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hearing to discuss the matter. (ECF No. 30).

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A hearing was held on April 20, 2011. (ECF No. 37). The Court found that the

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defendants were not properly served with the Amended Complaint and that the deadline to

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serve the defendants had passed. The Court granted Defendant Leon’s Motion to Dismiss

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without prejudice. At the hearing, the Court asked the parties to stipulate to either a dismissal

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without prejudice and an award of attorney’s fees or a dismissal with prejudice but without an

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award of attorney’s fees. Plaintiff and Defendant Leon stipulated that dismissal would be

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without prejudice but with an award of attorney’s fees.

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Attorney J. Malcolm DeVoy IV was retained by Defendant Leon for the April 20, 2011

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hearing. Mr. DeVoy is an attorney for the Randazza Legal group and rendered his services to

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Defendant Leon on a pro bono basis. Mr. DeVoy was able to secure Mr. Leon’s Motion to

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Dismiss without prejudice. Mr. DeVoy now presents the current motion for attorney’s fees and

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costs for his services in securing the dismissal. Mr. DeVoy now requests that pursuant to the

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written retainer agreement between himself and Defendant Leon, that he be awarded attorney’s

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fees directly instead of the Court directing Plaintiff to pay the fees to a charitable organization

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as discussed at the hearing.

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Randazza Legal Group and Mr. DeVoy seek an award of attorney’s fees and costs

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consisting of $3,795.00 for 13.80 hours of legal work and $20.00 for costs. Mr. DeVoy’s

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hourly rate is $275 per hour and he provides a brief summary of the hours and labor and results

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obtained in accordance with Local Rule 54-16(b).

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Plaintiff opposes any attorney’s fees being awarded to Mr. DeVoy or Randazza Legal

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Group because it was Plaintiff counsel’s understanding that any award of attorney’s fees would

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be directed to a charitable organization since Mr. DeVoy was representing Defendant Leon on a

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pro bono basis. The Court finds that it would be appropriate to award attorney’s fees to the law

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firm in light of the pro bono representation of Defendant Leon. See, e.g., Cuellar v. Joyce, 603

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F.3d 1142 (9th Cir. 2010) (denying attorney’s fees would discourage pro bono representation).

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Further Plaintiff argues that the amount of hours spent negotiating the amount of fees after the

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hearing is unreasonably high.

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Calculation of reasonable attorney’s fees is a two-step process. First, the court computes
the “lodestar” figure, which requires the court to multiply the reasonable hourly rate by the

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number of hours reasonably expended on the litigation. Fischer v. SJB-P.D., Inc., 214 F.3d

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1115, 1119 (9th Cir.2000) (citation omitted). The next step is to decide whether to increase or

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reduce the lodestar amount based upon the Kerr factors not already included in the initial

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lodestar calculation. Fischer, 214 F.3d 1115, 1119. The Kerr factors are: (1) the time and labor

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required, 2) the novelty and the difficulty of the questions involved, 3) the skill required to

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perform the legal service properly, 4) the preclusion of other employment by the attorney due

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to the acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent,

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7) time limitations imposed by the client or circumstances, 8) the amount involved and the

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results obtained, 9) the experience, reputation, and ability of the attorney, 10) the “undesirability”

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of the case, 11) the nature and length of the professional relationship with the client, and

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12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 525 F.2d 67, 70 (9th Cir.1975).

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The Kerr factors are consistent with the local rule governing motions for attorney’s fees. See

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LR 54-16(b)(3).

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Under the first step of the lodestar method the court looks to see if the rate and hours are

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each reasonable. Mr. DeVoy’s hourly rate is $275 per hour. The Courts find that this is a

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reasonable fee for an associate in the Las Vegas legal market. Next, Mr. DeVoy calculates his

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total hours spent in representing Defendant Leon for the hearing and in preparation of this

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motion to be 13.80 hours. It appears that many of the hours allotted were incurred in

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negotiating the attorney’s fees with Plaintiff and drafting the current motion. Regardless, the

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Court finds the hours to be reasonable.

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The next step is to decide whether to increase or reduce the lodestar amount based upon

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the Kerr factors. Mr. DeVoy provides a brief summary of the hours and labor and results

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obtained in accordance with Local Rule 54-16(b). The Court does not find that there should be

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any increase or decrease based on these factors.

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IT IS HEREBY ORDERED that Defendant Michael Leon’s Motion for Attorney’s

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Fees and Costs (ECF No. 42) is GRANTED. Plaintiff Righthaven is ORDERED to pay Mr.

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DeVoy and Randazza Legal Group $3, 815.00 in fees and costs.

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DATED this 5th day of July, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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