Joe Hand Promotions Inc v. Double Down Entertainment LLC et al
Filing
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ORDER awarding the plaintiff $3,400.00 in statutory damages under 47 U.S.C. § 553 and $9,435.00 in attorneys' fees and costs. The court directs entry of judgment against Defendants in the total amount of $12,835.00, representing all damages, costs and attorneys' fees. granting 78 Motion for Attorney Fees. Signed by Honorable Margaret B Seymour on 9/2/2014.(asni, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Joe Hand Promotions, Inc.,
)
)
Plaintiff,
)
)
vs.
)
)
Double Down Entertainment, LLC
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d/b/a Hoopers Bar & Grill,
)
Binh D. Thai, Kenneth J Kobulinsky,
)
and Angel Ruiz,
)
)
Defendants.
)
______________________________________ )
C/A No. 0:11-cv-02438-MBS
ORDER
On March 13, 2014, the court issued an order and opinion granting summary judgment in
favor of Joe Hand Promotions, Inc. (“Plaintiff”) on its statutory 47 U.S.C. § 553 claim and state law
conversion claim against Defendant Double Down Entertainment, LLC, d/b/a Hoopers Bar & Grill
(“Defendant Double Down”); Binh D. Thai; Kenneth J. Kobulinsky; and Angel Ruiz (collectively
“the individual Defendants”). ECF No. 75. In its order and opinion, the court directed Plaintiff to
elect to receive either (1) statutory damages in the amount of $3,300.00 pursuant to 47 U.S.C. §
553(c)(3)(A)(ii) and enhanced statutory damages in the amount of $100.00 pursuant to 47 U.S.C.
§ 553(c)(3)(B) or (2) actual damages in the amount of $1,100.00 on Plaintiff’s conversion claim.
Id. at 18. The court also ordered Plaintiff to submit documentation of its attorneys’ fees and costs
pursuant to 47 U.S.C. § 553(c)(2)(C).
I.
Election of Remedies
On March 28, 2014, Plaintiff filed a declaration including an attached document entitled
“Election of Remedies.” See ECF No. 77-1. In this document, Plaintiff indicates that it elects to
recover statutory damages in the amount of $3,300.00 pursuant to 47 U.S.C. § 553(c)(3)(A)(ii) and
enhanced statutory damages in the amount of $100.00 pursuant to 47 U.S.C. § 553(c)(3)(B). Id.
Pursuant to this election, the court awards Plaintiff $3,400.00 in statutory damages under 47 U.S.C.
§ 553.
II.
Attorneys’ Fees and Costs
Also on March 28, 2014, Plaintiff filed a motion for attorneys’ fees and costs. ECF No. 78.
In this motion, Plaintiff requests attorneys’ fees and costs in the aggregate amount of $11,285.00.
Id. This aggregate amount is itemized in Plaintiff’s motion as follows:
Law Offices of Thomas P. Riley, P.C.
Berry, Quackenbush & Stuart, P.A.
TOTAL
$6,375.00
$4,910.00
$11,285.00
Id. Plaintiff provides further documentation detailing the $6,375.001 in fees and costs requested by
the Law Offices of Thomas P. Riley, P.C. as well as the $4,910.00 in fees and costs requested by
Berry, Quackenbush & Stuart, P.A. See ECF Nos. 77, 78-1. Defendants have not filed a response
in opposition to Plaintiff’s motion for attorneys’ fees. Nevertheless, the court must still consider the
reasonableness of Plaintiff’s requested fees and costs.
The court’s March 13, 2014 order and opinion determined that an award of costs and
reasonable attorneys’ fees pursuant to 47 U.S.C. § 553(c)(2)(C) is appropriate in this action to
promote deterrence. See ECF No. 75 at 15. In determining what constitutes a reasonable number
of hours and the appropriate hourly rates, the court must consider the following factors: (1) the time
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Based on the itemized figures provided by Plaintiff, the court notes that the total amount of fees and
costs sought by Plaintiff as to the Law Offices of Thomas P. Riley, P.C. is $6,335.00 as opposed to
the $6,375.00 listed. However, the $6,335.00 amount is properly detailed in Plaintiff’s declaration
attached to its motion. The court will rely on this $6,335.00 amount going forward, as it is supported
by documentation. The court notes that this change reduces the total aggregate amount of fees and
costs requested by Plaintiff from $11,285.00 to $11,245.00.
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and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of
the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10)
the undesirability of the case within the legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and client; and (12) attorney fees awarded
in similar cases. Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). Although the court
must consider all twelve of the factors, the court is not required to rigidly apply these factors, as not
all factors may affect the fee in a given case. Reaves v. Marion Cnty., CA 4:08-1818-TLW-SVH,
2011 WL 1285739, at *2 (D.S.C. Feb. 16, 2011). “[T]hese factors should be considered in
determining the reasonable rate and the reasonable hours, which are then multiplied to determine the
lodestar figure which will normally reflect a reasonable fee.” E.E.O.C. v. Servo News Co., 898 F.2d
958, 965 (4th Cir. 1990). In determining whether a rate is reasonable, the court is to consider
“prevailing market rates in the relevant community.” Rum Creek Coal Sales, Inc. v. Caperton, 31
F.3d 169, 175 (4th Cir. 1994) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).
With these factors in mind, the court must consider the two declarations detailing the
attorneys’ fees requested by Plaintiff. The declaration of Leonard Jordan (“Mr. Jordan”), counsel
of record in this matter, indicates that Mr. Jordan has practiced law in South Carolina for over 38
years. ECF No. 77 at 1. The declaration further indicates that Mr. Jordan expended approximately
22.10 hours representing Plaintiff in this matter, and his services are routinely billed at $200.00 per
hour. Id. Mr. Jordan provides an itemized description of his work in this matter within his
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declaration. Id. at 3-5. Based on these figures, Mr. Jordan requests $4,370.00 in attorney’s fees.
Id. at 4. Mr. Jordan also seeks litigation costs of $540.00, including a $350.00 filing fee as well as
a $190.00 fee for service of process. Id.
The court finds that the information provided by Mr. Jordan, coupled with the court’s
knowledge of rates in work of this type in this district, supports the attorney’s fees and costs
submitted on behalf of Mr. Jordan. See J & J Sports Prods., Inc. v. Brazilian Paradise, LLC, 789
F. Supp. 2d 669, 681 (D.S.C. 2011) (finding that, in a similar case under 47 U.S.C. § 605, the
information provided by local counsel coupled with the court’s knowledge of rates in work of this
type in this district supported a $200.00 hourly rate); Joe Hand Promotions, Inc. v. Scott’s End Zone,
Inc., 759 F. Supp. 2d 742, 751 (D.S.C. 2010) (awarding the requested fees for service of process and
appropriate investigative fees under 47 U.S.C. § 605). As such, the court awards $4,370.00 in
attorney’s fees and $540.00 in costs, totaling $4,910.00, as to Mr. Jordan.
The second declaration provided by Plaintiff details attorneys’ fees and costs submitted by
Thomas P. Riley, an California attorney who is not an attorney of record in the case. Mr. Riley’s
declaration requests fees for 22.8 hours of work performed by the following four professionals in his
office: (1) Mr. Riley himself; (2) a research attorney; (3) a paralegal; and (4) an administrative
assistant. See ECF No. 78-1 at 4-5. The specific hourly rates for each of these professionals are
detailed in the declaration as follows:
Hourly Rate
Thomas P. Riley
Research Attorney
Paralegal
Admin. Assistant
Amount of Time
Total Amount
$400.00
$375.00
$100.00
$75.00
1.050 hours
16.00 hours
3.350 hours
2.400 hours
$420.00
$4,800.00
$335.00
$180.00
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See id. The declaration further provides itemized details of the type of work performed by each
professional as well as the amount of time expended on each item. See id.
In support of the rates listed above, the declaration asserts that Mr. Riley’s firm has handled
“thousands of commercial signal piracy files over the last decade” and their “rates for legal,
administrative and paralegal time are well within the guidelines of the prevailing market rates within
Los Angeles County and the United States.” Id. at 2. To support this contention, the declaration
sites to the “Laffey Matrix,” a matrix of average hourly rates commensurate with years of experience
that “has been adopted by the Northern District of California as a source of attorney’s fees
compensation.” Joe Hand Promotions, Inc. v. Todd, 4:11-CV-2021-TLW-TER, 2012 WL 2178851,
at *5 (D.S.C. Mar. 12, 2012), report and recommendation adopted, 4:11-CV-2021-TLW-TER, 2012
WL 2178822 (D.S.C. June 13, 2012) (citing IO Group, Inc. v. Jordan, 2010 WL 2231793 (N.D.Cal.
June 1, 2010)). Beyond the Laffey Matrix, the declaration provides no further information to support
the requested hourly rates.
In establishing an appropriate hourly rate, the reasonableness requirement “is met by
compensating attorneys at the ‘prevailing market rates in the relevant community.’” Rum Creek
Coal Sales, Inc, 31 F.3d at 175. “The relevant market for determining the prevailing rate is
ordinarily the community in which the court where the action is prosecuted sits.” Id. The Laffey
Matrix provided with Mr. Riley’s declaration is not representative of rates for work in this district.
See Scott’s End Zone, Inc., 759 F. Supp. 2d at 754 (finding that the Laffey Matrix “could not satisfy
the requirement that one seeking attorneys’ fees must establish those fees to be comparable to
customary fees for like work in the relevant market of South Carolina or the reasonableness of the
rates requested”). However, the court recognizes that “where it is reasonable to retain attorneys from
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other communities . . . the rates in those communities may also be considered.” Rum Creek Coal
Sales, Inc., 31 F.3d at 175.
Upon considering the relevant factors, including the novelty and difficulty of the work, the
level of skilled required to perform the legal service properly, the nature and length of the
professional relationship with the client, awards in similar cases, and the customary fee in similar
cases, the court finds that the hourly rates sought by Mr. Riley of $400.00 for himself and $375.00
for his research attorney are not reasonable in this instance. See Grissom v. The Mills Corp., 549
F.3d 313, 323 (4th Cir. 2008) (finding that the Laffey Matrix was insufficient to carry the plaintiff’s
burden of proof where the plaintiff “offered no specific evidence that the hourly rates sought for his
attorneys coincided with the then prevailing market rates of attorneys in the [district in which the
action was filed] of similar skill and for similar work, which [Fourth Circuit] case law required him
to do”). Instead, the court draws on its own knowledge of litigation rates charged in this district in
similar proceedings to determine a reasonable hourly fee. See Joe Hand Promotions, Inc. v. Precint
Bar-DAXLAM, Ltd., 3:10-CV-00199-CMC, 2010 WL 3420189, at *4 (D.S.C. Aug. 23, 2010)
(recognizing that the court’s own knowledge of rates charged for similar work in a similar
geographic area is sufficient to determine the reasonableness of a requested fee). In so doing, the
court finds that an hourly rate of $200.00 is a reasonable rate for both Mr. Riley and his research
attorney.2 See Joe Hand Promotions, Inc. v. SST Enterprises LLC, CA 4:11-1624-TLW-KDW, 2012
WL 2178820 (D.S.C. Apr. 3, 2012), report and recommendation adopted, 4:11-CV-1624-TLW-
2
The court further notes that Mr. Riley’s declaration provides no information detailing the tenure and
experience of the listed research attorney. As such, the court could not determine a reasonable fee
for the research attorney using the Laffey Matrix even if the court were to rely on the Laffey Matrix.
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KDW, 2012 WL 2178708 (D.S.C. June 13, 2012) (rejecting a proposed $400.00 hourly rate and
determining that an hourly rate of $200.00 was reasonable in a similar case under the Cable Act).
Pursuant to this finding and using the hourly rate of $200.00, the court will reduce the
attorney’s fee award for Mr. Riley from the requested $420.00 to $210.00. The court will also
reduce the attorney’s fees award for the listed research attorney from the requested $4,800.00 to
$3,200.00. However, the court finds that the $100.00 hourly fee requested for the listed paralegal
as well as the $75.00 hourly fee requested for the listed administrative assistant are reasonable in this
instance and will be awarded as requested. See id. at *8 n.1 (finding that administrative time may
be included in a fee award under 47 U.S.C. § 605); J & J Sports Prods., Inc. v. Segura, 3:12-CV03241-CMC, 2013 WL 1194844 (D.S.C. Mar. 22, 2013) (finding an hourly fee of $95.00 to be a
reasonable fee for a paralegal in a similar case under the Cable Act). Further, the court finds that the
investigate costs totaling $600.00 requested by Mr. Riley are properly supported by documentation
and will be awarded as requested.
Based on the foregoing, the court determines that the following award of attorneys’ fees and
costs is reasonable in this action:
Law Offices of Thomas P. Riley, P.C.
Berry, Quackenbush & Stuart, P.A.
TOTAL
$4,525.00
$4,910.00
$9,435.00
As such, the court grants in part Plaintiff’s motion for attorneys fees, ECF No. 78, and awards
attorneys’ fees and costs in the amount of $9,435.00. The court denies in part Plaintiff’s motion for
attorneys’ fees to the extent such motion requests attorneys’ fees or costs beyond $9,435.00.
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III.
Conclusion
Based on the foregoing, the court awards Plaintiff $3,400.00 in statutory damages under 47
U.S.C. § 553 and $9,435.00 in attorneys’ fees and costs. The court directs entry of judgment against
Defendants in the total amount of $12,835.00, representing all damages, costs and attorneys’ fees.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
September 2, 2014
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