A.V.E.L.A., Inc. v. The Estate of Marilyn Monroe, LLC et al

Filing 129

MEMORANDUM AND ORDER: granting 114 Motion for Attorney Fees. For these reasons, AVELA is ordered to pay the Estate $58,012.61 in attorneys' fees and costs. (Signed by Magistrate Judge James C. Francis on 7/18/2014) Copies Mailed By Chambers. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
A.V.E.L.A., INC.,
: 12 Civ. 4828 (KPF) (JCF)
:
Plaintiff,
:
MEMORANDUM
:
AND ORDER
- against :
:
THE ESTATE OF MARILYN MONROE,
:
BIOWORLD MERCHANDISING, and DOES
:
1 THROUGH 10,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
THE ESTATE OF MARILYN MONROE and
:
BIOWORLD MERCHANDISING,
:
:
Counter Claimants, :
:
- against :
:
A.V.E.L.A., INC. and LEO VALENCIA, :
:
Counter Defendants. :
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
As discussed more fully in two earlier orders, A.V.E.L.A.,
Inc. v. Estate of Marilyn Monroe, No. 12 Civ. 4828, 2014 WL 715540
(S.D.N.Y. Feb. 24, 2014) (“AVELA I”), and A.V.E.L.A., Inc. v.
Estate of Marilyn Monroe, No. 12 Civ. 4828, 2014 WL 1408488
(S.D.N.Y. April 11, 2014) (“AVELA II”), defendant and counterclaimant the Estate of Marilyn Monroe (the “Estate”) brought a
motion

for

sanctions

and

to

compel

discovery

(which,

for

convenience, I will call simply a motion to compel) against

1

counter-defendants

A.V.E.L.A.,

(collectively, “AVELA”).

Inc.,

and

Leo

Valencia

I granted the motion to compel in part

and ordered AVELA to “pay the costs and fees associated with
litigating th[e] motion [to compel].”
*10.

AVELA I, 2014 WL 715540, at

AVELA sought reconsideration, which I granted, although I

ultimately “adhere[d] to my prior determination,” including my
decision that AVELA “must bear the costs and attorneys’ fees
associated with the Estate’s motion to compel.”
1408488, at *1, 8.

AVELA II, 2014 WL

The Estate now requests over $140,000 in fees

and costs pursuant to those orders.
Discussion
A.

Legal Standards

An award of attorneys’ fees should be based on the court’s
determination of a “presumptively reasonable fee.” Sandoval v.
Materia Bros. Inc., No. 11 Civ. 4250, 2013 WL 1767748, at *3
(S.D.N.Y. March 5, 2013) (quoting Arbor Hill Concerned Citizens
Neighborhood Association v. County of Albany, 522 F.3d 182, 189-90
(2d

Cir.

2008)).

This

fee

is

calculated

by

multiplying

“a

reasonable hourly rate by the reasonable number of hours expended
on the case.”

Sandoval, 2013 WL 1767748, at *3; see Millea v.

Metro–North Railroad Co., 658 F.3d 154, 166 (2d Cir. 2011).
Determining a reasonable hourly rate involves “a case-specific
inquiry into the prevailing market rates for counsel of similar
2

experience and skill to the fee applicant’s counsel” which may
include “judicial notice of the rates awarded in prior cases and
the court’s own familiarity with the rates prevailing in the
district.”

See Farbotko v. Clinton County, 433 F.3d 204, 209 (2d

Cir. 2005).

The hourly rates must be “in line with those [rates]

prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.”

Reiter

v. MTA New York City Transit Authority, 457 F.3d 224, 232 (2d Cir.
2006) (alteration in original) (internal quotation marks omitted);
see also Simmons v. New York City Transit Authority, 575 F.3d 170,
174 (2d Cir. 2009).

The relevant community in this case is the

Southern District of New York.

Arbor Hill, 522 F.3d at 190.

After establishing the appropriate hourly rate, a court must
determine how much time was reasonably expended in order to arrive
at the presumptively reasonable fee. “The relevant issue [] is not
whether hindsight vindicates an attorney’s time expenditures, but
whether, at the time the work was performed, a reasonable attorney
would have engaged in similar time expenditures.”

Grant v.

Martinez, 973 F.2d 96, 99 (2d Cir. 1992); accord Mugavero v. Arms
Acres, Inc., No. 03 Civ. 5724, 2010 WL 451045, at *6 (S.D.N.Y. Feb.
9, 2010).

A court should exclude from the lodestar calculation

“excessive, redundant or otherwise unnecessary hours.”

Quaratino

v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1997); accord Luciano
3

v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997) (“If the district
court concludes that any expenditure of time was unreasonable, it
should exclude these hours from the lodestar calculation.”).

It

can do so by making specific deductions or “by making an acrossthe-board reduction in the amount of hours.”

Luciano, 109 F.3d at

117; accord Vorcom Internet Services, Inc. v. L&H Engineering &
Design LLC, No. 12 Civ. 2049, 2014 WL 116130, at *5 (S.D.N.Y. Jan.
13, 2014).
B.

Fee Application

The Estate claims fees for five timekeepers: Tamar Duvdevani
and Gina Durham, who are both partners at DLA Piper; Nicole
Chaudhari, a former associate at the firm; Nikkya Williams, a staff
attorney; and Valerie Ruppert, a paralegal.

(Defendant/Counter-

Plaintiff The Estate of Marilyn Monroe, LLC’s Memorandum of Law in
Support of Motion for Attorneys’ Fees and Costs Pursuant to the
Court’s

February

24,

2014

Order

Awarding

Such

Relief

to

Defendant/Counter-Plaintiff (“Def. Memo.”), at 4-6).
The following chart shows the hours, rates, and total fees
that are supported by the record for each timekeeper:1

1

I have reached these numbers by cross-referencing the
billing records submitted with the opening papers and reply papers
(Redacted Billing Record dated Feb. 27, 2014 (“2/27/14 Invoice”),
attached as part of Exh. E to Declaration of Gina L. Durham dated
April 28, 2014 (“1st Durham Decl.”); Redacted Billing Record dated
April 14, 2014 (“4/14/14 Invoice”), attached as part of Exh. E to
4

Timekeeper

Hours

Rate2

Fees

T. Duvdevani

15.2

$770

$11,704.00

26.2

$795

$20,829.00

45.3

$725

$32,842.50

18.7

$750

$14,025.00

24.3

$610

$14,823.00

21.3

$655

$13,951.50

G. Durham

N. Chaudhari

1st Durham Decl.; Redacted Pro Forma Bill dated May 2, 2014
(“5/2/14 Invoice”), attached as Exh. A to Declaration of Gina L.
Durham dated May 7, 2014 (“2nd Durham Decl.”)) with a spreadsheet,
submitted with the reply papers, that shows the actual hours billed
for which the Estate seeks reimbursement (Untitled spreadsheet
headed with surnames of timekeepers (“Spreadsheet 1”), attached as
part of Exh. B to 2nd Durham Decl). That should capture all of the
time billed for which the Estate has submitted records. I note
that a second spreadsheet submitted with the reply papers purports
to total all hours and fees claimed by the timekeepers. (Untitled
spreadsheet headed with initials of timekeepers (“Spreadsheet 2”),
attached as part of Exh. B to 2nd Durham Decl.). However, the
hourly totals (and consequently the fees charged) do not correspond
with the totals claimed for Ms. Duvdevani and Ms. Williams on
Spreadsheet 1.
There is a discrepancy of 3.2 hours for Ms.
Duvdevani: her hours on Spreadsheet 1 total 41.4; however,
Spreadsheet 2 identifies 44 hours. There is also a discrepancy for
Ms. Williams: her hours on Spreadsheet 1 total 64.8; Spreadsheet 2
claims 68.4 hours, but then provides a final total of 79.8 hours.
I have also discounted 1.0 hour of time for Ms. Chaudhari and 0.5
hours of time for Ms. Duvdevani, both from January 22, 2014,
because they are not included in Spreadsheet 1, and it is therefore
impossible to determine how much of this time was spent on
compensable work. (2/27/14 Invoice at 8; Spreadsheet 1).
Below, I further discuss the scattershot manner in which the
fee application’s supporting documents have been presented.
2

Although not explicitly noted, it appears that the fee
increase went into effect on January 1, 2014.
5

N. Williams

C.

$9,424.00

$395

$15,800.00

2.0

$310

$620.00

2.5
Total

$380

40.0
V. Ruppert

24.8

$325

$800.00

218.3

$134,819.00

Hourly Rates

Each of the timekeepers who worked on the motion to compel
practices primarily in the field of intellectual property law. Ms.
Duvdevani graduated from law school in 2002 and clerked for a
federal magistrate judge in this District before joining a law firm
in 2005.

She is admitted to the bar in New York.

is $770-795 per hour.

Her claimed rate

(Def. Memo. at 4; Firm Biography of Tamar Y.

Duvdevani, attached as Exh. B to 1st Durham Decl.).

Ms. Durham is

lead counsel for the Estate. She graduated from law school in 1999
and is admitted to the bar in California and Illinois. Her claimed
rate is $725-750 per hour.

(Def. Memo. at 4; Firm Biography of

Gina L. Durham, attached as Exh. A to 1st Durham Decl.).

Ms.

Chaudhari graduated from law school in 2005 and is admitted to the
bar in Illinois.

Her claimed rate is $610-655 per hour.

(Def.

Memo. at 4; Firm Biography of Nicole Chaudhari, attached as Exh. C
to 1st Durham Decl.).
Nevada.

Nikkya Williams is admitted to the bar in

Her claimed rate is $380-395 per hour.

(Def. Memo. at 4;

Firm Biography of Nikkya Williams, attached as Exh. D to 1st Durham
6

Decl.).

Finally, the paralegal, Ms. Ruppert, claims a rate of

$310-325 per hour.

(Def. Memo. at 4).

“[T]he actual billing arrangement is a significant, though not
necessarily

controlling,

‘reasonable.’”

factor

Crescent

in

Publishing

determining
Group,

what

Inc.

v.

Enterprises, Inc., 246 F.3d 142, 151 (2d Cir. 2001).

fee

is

Playboy

The billing

rates requested here are among the highest approved in this
district.

The

Estate

points

to

Barclays

Capital

Inc.

v.

Theflyonthewall.com, No. 06 Civ. 4908, 2010 WL 2640095 (S.D.N.Y.
June 30, 2010), in which the court approved an average hourly rate
of $838 for a senior partner who had been practicing since 1973 and
was head of his firm’s Intellectual Property and Media practice
group.3
rates);

Id. at *3 (noting that defendant did not object to billing
Attorney

Profile

for

R.

Bruce

Rich,

available

at

http://www.weil.com/brucerich/ (last visited July 1, 2014); (Def.
Memo. at 5).

In Diplomatic Man, Inc. v. Nike, Inc., No. 08 Civ.

139, 2009 WL 935674 (S.D.N.Y. April 7, 2009), the court found $650

3

Although that figure is not mentioned in the court’s
opinion, I was able to confirm it by looking at a declaration in
support of the plaintiff’s motion for attorneys’ fees in that case.
(Declaration of Benjamin E. Marks dated April 9, 2010 (“Marks
Declaration”), Barclays Capital Inc. v. Theflyonthewall.com, Inc.,
No. 06 Civ. 4908, ¶ 8). Because the Estate relies on the $838 per
hour rate, better practice would have been for it to have included
the Marks Declaration as an exhibit to its own motion, thus
relieving the Court of the necessity of independently confirming
the accuracy of the Estate’s representation.
7

per hour “perfectly reasonable” for the head of a large firm’s
commercial litigation group who had been practicing law since 1972.
Id. at *6; (Declaration of Marshall Beil dated Dec. 29, 2008,
Diplomatic Man, Inc. v. Nike, Inc., No. 08 Civ. 139, ¶¶ 4, 11).
Although clearly experienced attorneys, neither Ms. Duvdevani
nor Ms. Durham have the length of experience of those attorneys for
whom such high rates have been approved.

Therefore, I find that a

rate of $600 per hour is reasonable for these two partners.

The

rates of Ms. Chaudhari, Ms. Williams, and Ms. Ruppert are similarly
reduced to $400 per hour, $300 per hour, and $200 per hour,
respectively.

See,

e.g.,

Source

Vagabond

Systems,

Ltd.

v.

Hydrapak, Inc., No. 11 Civ. 5379, 2013 WL 136180, at *8, 10
(S.D.N.Y. Jan. 11, 2013) (approving rates of $320 per hour for
junior associate and $405 per hour for senior associate in patent
infringement case), report and recommendation adopted in relevant
part, 2013 WL 634510 (S.D.N.Y. Feb 21, 2013).
D.

Time Expended
1.

Supporting Documentation

“[A]bsent unusual circumstances attorneys are required to
submit contemporaneous records with their fee applications.” Scott
v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010).

This

enables both the party opposing the fee application and the court
evaluating it to assess the reasonableness of the time expended.
8

See New York State Association for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1147 (2d Cir. 1983).
The Estate’s attorneys have provided contemporaneous time
records, but they have done so in a manner that is, to put it
mildly, user-unfriendly.

As noted above, the fee application’s

opening papers included invoices for DLA Piper’s work on the
matter. These records were redacted to excise descriptions of work
that did not relate to the fees claimed. Because of the prevalence
of block billing,4 however, the number of hours actually spent on
the allegedly compensable work is not clear from the invoices. For
example, Ms. Chaudhari’s entry for December 10, 2013, appears to be
redacted (although even that is not completely clear -- the hint is
that the entry ends with a semicolon and not a period).
Invoice at 3).

(2/27/14

But the time reflected on the invoice, 6.90 hours,

applies to the entire entry, not merely the unredacted part.
(2/27/14 Invoice at 3).

Thus, it is impossible to weigh the

reasonableness of the time actually expended on the compensable
task when that figure is unknown.
To rectify this blunder, which was noted in AVELA’s opposition
papers (Memorandum of Points and Authorities in Opposition to
Motion for Attorneys’ Fees (“Pl. Memo.”), at 17 & n.4), the Estate

4

“Block billing” is the aggregation of discrete tasks into
one billing entry.
9

submitted with its reply papers a spreadsheet that listed each
timekeeper and the hours she claimed for each billing entry
reflected in the formal billing records submitted with the opening
papers.

(Spreadsheet 1).

Thus, in order to discern how much time

is actually claimed for each entry in the billing records, the
reader must cross-reference those records with the spreadsheet. Of
course, AVELA did not have the benefit of Spreadsheet 1 when it
prepared its opposition papers and it was therefore denied a full
opportunity to challenge specific entries as unreasonable.

In

addition, the defendant’s submissions have wasted the Court’s time,
not only because of the required cross-referencing, but also
because of the mathematical errors in the supporting documents.5
Therefore,

although

time

spent

on

a

fee

application

is

generally compensable, see, e.g., Weyant v. Okst, 198 F.3d 311, 316
(2d Cir. 1999) (“[A] reasonable fee should be awarded for time
reasonably spent in preparing an application for . . . fees.”), I
will deny the Estate’s application to the extent that it seeks fees
for the work expended on the fee application.
2.

Motion for Reconsideration

The Estate seeks reimbursement for time spent opposing AVELA’s

5

For example, in addition to the errors in calculating the
number of hours worked discussed in footnote 1, above, the “total
fees” column of Spreadsheet 2 claims $40,379.50 for the work on the
fee application; however, the correct figure is $24,871.00.
10

motion for reconsideration.

However, I have not ordered AVELA to

pay attorneys’ fees and costs for the motion for reconsideration.
Indeed, both opinions are quite clear: the order on the Estate’s
motion to compel states that “[t]he counter-defendants shall pay
the costs and fees associated with litigating this motion,” AVELA
I, 2014 WL 715540, at *10 (emphasis added); the order on the motion
for reconsideration states that “[t]he counter-defendants must bear
the costs and attorneys’ fees associated with the Estate’s motion
to compel.”

AVELA II, 2014 WL 1408488, at *8.

Contrary to the Estate’s implication, Rahman v. Smith &
Wollensky Restaurant Group, Inc., No. 06 Civ. 6198, 2009 WL 72441
(S.D.N.Y. Jan. 7, 2009), does not stand for the proposition that
fees for a motion for reconsideration are always compensable when
fees have been awarded for the underlying motion.
8).
fees

(Def. Memo. at

Rather, in that case, there was a specific determination that
would

unsuccessful.

be

awarded

if

the

reconsideration

motion

was

Rahman, 2009 WL 72441, at *5 (“When I subsequently

agreed to address the plaintiff’s motion for reconsideration, I
determined that if the defendants prevailed, they could add related
fees and costs to their pending fee application.”).

No such

determination was made here, so there is no basis for the Estate to
claim costs and attorneys’ fees associated with the motion for
reconsideration.
11

3.

Block-Billing and Reasonableness of Time Expended

Block-billing can make it more difficult to determine the
reasonableness

of

time

expended.

It

is

not,

“automatically disfavored by courts in this district.”

however,
Adusumelli

v. Steiner, Nos. 08 Civ. 6932, 09 Civ. 4902, 10 Civ. 4549, 2013 WL
1285260, at *4 (S.D.N.Y. March 28, 2013) (internal quotation marks
omitted).

Rather, across-the-board reductions in fees awarded are

“generally limited . . . to situations where there was evidence
that the hours billed were independently unreasonable or that the
block-billing

was

mixing

together

tasks

that

were

not

compensable, or not all compensable at the same rate.”

all
Id.

(internal quotation marks omitted).
According to Spreadsheet 2, the four attorneys working on this
case spent 146.5 hours on the briefing for the motion to compel.
On December 10, 2013, alone, they spent a total of 17.4 hours
drafting,

reviewing,

Spreadsheet 1).

and

“strategizing.”

(2/27/14

Invoice;

In the three days before the motion was filed,

they billed a total of 51 hours on the opening papers -- over two
full days.

The Estate argues that the time is reasonable because

of the length of the submissions, which required “extensive review
of

eight

deposition

transcripts,

correspondence [among] counsel.”

discovery

requests

(Def. Memo. at 7).

and

At the same

time, it defends staffing Ms. Durham -- who charges over $700 per
12

hour and appears to have spent more than 40 hours on the opening
papers, alone -- to the motion because she “was the attorney most
familiar with the history and facts surrounding [AVELA’s] discovery
misconduct, and thus drafted substantial portions of the [motion to
compel] in order to keep time spent on reviewing the copious
discovery to a minimum.”

(The Estate of Marilyn Monroe, LLC’s

Reply Memorandum of Law in Further Support of Its Motion for Fees
and Costs at 5).

DLA Piper’s attempts at promoting efficiency

failed: the hours are unreasonable.

The block-billing makes it

difficult, if not impossible, to determine precisely where the
waste occurred.

Therefore, I will impose an across-the-board

deduction of 20% of the hours billed for the motion to compel
according to Spreadsheet 2.6
Timekeeper

Hours

Rate

Total

T. Duvdevani

16.6

$600

$9,960.00

G. Durham

42.2

$600

$25,320.00

N. Chaudhari

36.5

$400

$14,600.00

N. Williams

20.2

$300

$6,060.00

V. Ruppert

1.8

$200

$360.00
$56,300.00

6

As noted, there are errors in the figures presented on
Spreadsheet 2, but the figures reported for the motion to compel
seem to be corroborated by the more detailed information in
Spreadsheet 1.
13

E.

Equitable Reduction and Apportionment

“‘[F]ee awards are at bottom an equitable matter, and courts
should not hesitate to take the relative wealth of the parties into
account.’” Barclays Capital, 2010 WL 2640095, at *6 (quoting
Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992).
AVELA contends that the Estate has significantly greater financial
strength than does AVELA, noting that the approximately $125,000
that the Estate claimed in its opening fee application “is nearly
25% higher than the yearly average profits obtained by AVELA on
Marilyn Monroe licenses from 2008-2012.”

(Pl. Memo. at 18).

However, AVELA provides no support for its claims.

See, e.g.,

Harrell v. Van der Plas, No. 08 Civ. 8252, 2009 WL 3756327, at *7
(S.D.N.Y. Nov. 9, 2009) (“Th[e] failure to provide adequate and
reliable financial information prevents the Court from exercising
its discretion to reduce the presumptively reasonable fee award
. . . .”).

Moreover, I have already decreased the fee award by

tens of thousands of dollars.

I will not slash the fee award

further as a matter of equity.
Nor will I apportion the fee award.

(Pl. Memo. at 19-22).

Both controlling orders are clear: AVELA is to pay the fees and
costs associated with litigating the motion to compel.
2014 WL 715540, at *10; AVELA II, 2014 WL 1408488, at *8.

AVELA I,
Indeed,

AVELA makes the same apportionment argument here as it did in its

14

motion for reconsideration (Memorandum of Points and Authorities in
Support of Motion for Reconsideration of Order Compelling Discovery
and Awarding Attorneys' Fees at 23), where it was rejected.

I will

not revisit that determination.
F.

Costs

The Estate has provided support for $1,712.16 in costs related
to the motion to compel: 7
Costs

Ainount

Private Investigator Fees

$1,256.25

Delivery Service Charges

$34.08

Electronic Legal Research

$422.28

Total

$1,712.16

(2/27/14 Invoice at 11-12).

AVELA has not objected to any of these

charges and I find that they are compensable.
Conclusion
For

these

reasons,

AVELA

is

ordered

to

pay

the

Estate

$58,012.61 in attorneys' fees and costs.

SO ORDERED.

c)

~C·~~~F
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

' Consistent with my decision not to recompense the defendants
for work expended on the fee application or the motion for
reconsideration, the costs on this chart relate only to the motion
to compel.
15

Dated: New York, New York
July 18, 2014
Copies mailed this date:
Michael R. Adele, Esq.
Technology Litigation Center
828 S. Marjan St
Anaheim, CA 92806
Gina L. Dunham, Esq.
DLA Piper, LLP
555 Mission Street, Suite 505
San Francisco, CA 94105
Tamar Y. Duvdevani, Esq.
DLA Piper, LLP
1251 Avenue of the Americas
New York, NY 10020

16