Takano v. Super Steam of Austin, Inc.

Filing 23

The Court ORDERS Super Steam to pay Takano $562.50 by September 14, 2023. Signed by Judge Susan Hightower. (dm)

Case 1:17-cv-00654-RP Document 23 Filed 08/21/23 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANDREW TAKESHI TAKANO,
Plaintiff
v.
SUPER STEAM OF AUSTIN, INC.,
Defendant

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Case No. 1:17-cv-00654-RP

ORDER
Now before the Court is Plaintiff’s Notice of Submission of Supplemental Declaration of
Counsel, filed July 25, 2023 (Dkt. 22) as directed in the Court’s Order on Plaintiff’s Motion to
Compel (Dkt. 21).1
I.

Background

Plaintiff Andrew Takano sued Defendant Super Steam of Austin, Inc. (“Super Steam”) for
copyright infringement. The District Court granted a default judgment to Takano, who served postjudgment discovery on Super Steam. Super Steam responded to neither the discovery requests nor
Takano’s Motion to Compel. The Court granted the Motion to Compel and ordered Super Steam
to bear the reasonable expenses Takano incurred in bringing the motion under Rule 37(a)(5)(A).
Takano requests $3,264 in attorney’s fees and costs.
II. Legal Standard
Rule 37(a)(5)(A) provides that if a motion to compel discovery is granted, “the court must,
after giving an opportunity to be heard, require the party . . . whose conduct necessitated the
motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable

By Text Order entered April 20, 2023, the District Court referred Plaintiff’s Motion to Compel to this
Magistrate Judge for disposition, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure
72, and Rule 1(c) of Appendix C of the Local Court Rules of the United States District Court for the Western
District of Texas.
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expenses incurred in making the motion, including attorney’s fees.” Courts in the Fifth Circuit
apply the lodestar method to calculate attorney’s fees. Black v. SettlePou, P.C., 732 F.3d 492, 502
(5th Cir. 2013). The lodestar amount is calculated by multiplying the number of hours an attorney
reasonably spent on the case by an appropriate hourly rate, which is the market rate in the
community for this work. Id. “There is a strong presumption of the reasonableness of the lodestar
amount.” Id.
After calculating the lodestar amount, a court may increase or decrease the fee award based on
the factors set forth in Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974),
abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).2 The party seeking
fees has the burden to show the reasonableness of the hours billed and the exercise of reasonable
billing judgment. Black, 732 F.3d at 502.
III. Analysis
Takano requests $2,812.50 in attorney’s fees for 6.25 hours of work at an hourly rate of $450
per hour, as well as $451.50 in costs.
A. Attorney’s Fees
To establish a reasonable hourly rate, courts look to the prevailing market rates in the relevant
community. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). The relevant
community is “the community in which the district court sits.” Tollett v. City of Kemah, 285 F.3d
357, 368 (5th Cir. 2002) (citation omitted). This Court sits in Austin, Texas.

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The Johnson factors are (1) the time and labor required; (2) the novelty and difficulty of the issues in the
case; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment
by the attorney due to acceptance of the case; (5) the customary fee charged for those services in the relevant
community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability
of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

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Takano’s attorney, Kerry S. Culpepper, submitted a declaration attesting that $450 per hour is
a reasonable rate for a solo practitioner specializing in intellectual property, particularly electrical
and computer software technology. Dkt. 22-1 (Culpepper Decl.) ¶ 4. Culpepper, who has been
licensed to practice law since 2000, avers that he has experience in copyright, trademark, and
patent infringement litigation, has served as a delegate for the American Intellectual Property Law
Association (“AIPLA”), and has twice lectured at National Association of Patent Practitioners
conferences. Id. ¶ 5.
Culpepper attests that his hourly rate of $450 is near the 2016 mean hourly rate of $378 for a
solo practitioner specializing in electrical technologies listed in the AIPLA 2017 Report of the
Economic Survey. Id. ¶ 6. The AIPLA survey is “routinely relied upon in intellectual property
cases to determine the reasonableness of fee requests.” Iris Connex, LLC v. Dell, Inc., 235 F. Supp.
3d 826, 855 (E.D. Tex. 2017). The most recent AIPLA survey lists the average hourly billing rate
for a solo practitioner in Texas as $423. AIPLA REPORT OF THE ECONOMIC SURVEY 2021, at I-25.
Culpepper is in Hawaii and does not provide information related to the prevalent rates in
Austin. Nonetheless, the Court finds that the requested rate is in line with prevailing rates for
copyright infringement practitioners of reasonably comparable skill, experience, and reputation in
the Austin community. See Aberle v. GP Clubs, LLC, No. 1:19-cv-1066-RP, 2020 WL 4035074,
at *5 (W.D. Tex. July 17, 2020) (finding $390 per hour to be reasonable market rate in Austin for
copyright litigation), R. & R. adopted, Dkt. 16 (W.D. Tex. Aug. 3, 2020).
A party seeking attorney’s fees also must show “the reasonableness of the hours billed and that
the attorneys exercised billing judgment.” Black, 732 F.3d at 502. Under Rule 37, a party and its
counsel “can only be held responsible for the reasonable expenses including attorney’s fees caused
by their failure to comply with discovery.” Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir.

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2002). This excludes “fees incurred for the underlying discovery requests” because they “were not
caused by any failure to comply.” Id. After reviewing Culpepper’s billing records, the Court finds
that 1.25 hours to prepare the Motion to Compel and confer with Defendant is reasonable.
Takano also requests fees for five hours of earlier work on the case, including preparing a
demand for payment of judgment and drafting the underlying post-judgment discovery requests.
The Court finds that Takano is not entitled to an award of fees for time spent working on the case
before Super Steam failed to respond to the post-judgment discovery requests. Tollett, 285 F.3d at
368; Williams v. Best Temp. Servs., LLC, No. 3:14-CV-484-D, 2015 WL 12763508, at *2 (N.D.
Tex. June 17, 2015). Therefore, the Court excludes five hours Takano requests for earlier work.
No other adjustments to the lodestar are necessary.
B. Costs
Takano seeks an award of costs, including costs incurred before service of the discovery
requests and the cost to serve Super Steam with the Court’s Order granting Takano’s Motion to
Compel. As stated, a party is entitled to an award of expenses incurred “in making the motion.”
FED. R. CIV. P. 37(a)(5)(A). None of the costs requested were incurred in bringing the Motion to
Compel, and the Court finds that no costs should be awarded.
IV. Conclusion
For these reasons, the Court finds that Takano should be awarded attorney’s fees in the amount
of $562.50. The Court ORDERS Super Steam to pay Takano $562.50 by September 14, 2023.
It is FURTHER ORDERED that the Clerk REMOVE this case from this Magistrate Judge’s
docket and RETURN it to the docket of the Honorable Robert Pitman.
SIGNED on August 21, 2023.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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