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J & J Sports Productions Inc. v. Patel

United States District Court, D. Arizona

April 3, 2018

J & J Sports Productions Incorporated, Plaintiff,
v.
Arun Patel, et al., Defendants.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         On December 4, 2017, Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation (“R&R”) (Doc. 32), recommending that this Court grant Plaintiff's Motion for Summary Judgment with regard to liability under 47 U.S.C. § 605 and award Plaintiff $9, 000.00 in damages. (Doc. 32 at 6-16.)[1] Judge Velasco also recommended that Plaintiff be permitted to file the appropriate papers to obtain an award of costs and attorneys' fees, in accordance with Fed.R.Civ.P. 54 and LRCiv 54.1 and 54.2. (Id. at 15-16.) This Court adopted the R&R in full on January 19, 2018. (Doc. 35.)

         Currently pending before the Court is Plaintiff's Motion for Award of Costs and Attorneys' Fees. (Doc. 41.) Defendants did not respond to the Motion.

         I. Costs

         Plaintiff seeks costs in the amount of $2, 199.15. (Doc. 41 at 3.) Plaintiff included a Bill of Costs as Exhibit A to its Motion for Award of Costs and Attorneys' Fees. (See Doc. 41-2 at 2-3.) The Bill of Costs lists both taxable and non-taxable items. See 28 U.S.C. § 1920 (listing taxable items); LRCiv 54.1(e) (same).

         A. Non-Taxable Costs

         Plaintiff's Bill of Costs lists $1, 200.00 in non-taxable investigator costs. Section § 605 provides for “the recovery of full costs” to the prevailing party. 47 U.S.C. § 605(e)(3)(B)(iii). As noted by Plaintiff (Doc. 41 at 2), some courts have interpreted the “full costs” language of Section 605 as providing for the recovery of non-taxable investigator costs. See, e.g., Kingvision Pay-Per-View Ltd. v. Autar, 426 F.Supp.2d 59, 66-67 (E.D.N.Y. 2006). Other courts have reached the opposite conclusion, and the Ninth Circuit has not addressed the issue. Pursuant to Kingvision, which Plaintiff relies upon, a plaintiff must support a request for investigator costs under § 605 with documentation showing: “(1) the amount of time necessary for the investigation; (2) how much the investigators charged per hour; [and] (3) why the investigators are qualified to demand the requested rate.” Id. at 67.

         Plaintiff has submitted two invoices to support its request for investigator costs. (See Doc. 41-4 at 17-18.) The first is an invoice in the amount of $560 payable to Pro PI, LLC. (Id. at 17.) The second is an invoice in the amount of $660 payable to Gary Turner of PartnerCheck Investigations, LLC. (Id. at 18.)[2] Plaintiff has not identified the hourly rates charged by these investigators or why the investigators are qualified to demand the requested rates. Because Plaintiff has not provided sufficient documentation to show that the investigative costs were reasonably incurred, the Court declines to direct the recovery of such costs. See Kingvision, 426 F.Supp.2d at 67-68 (declining to award costs for investigative services due to inadequate documentation); J & J Sports Prods., Inc. v. Barajas, No. 1:15-cv-01354-DAD-JLT, 2017 WL 469343, at *5 (E.D. Cal. Feb. 2, 2017) (same); J & J Sports Prods., Inc. v. Macia, No. CV 13-00921-PHX-DGC, 2014 WL 3747608, at *2 (D. Ariz. July 30, 2014) (same); Joe Hand Promotions, Inc. v. Albright, No. CIV. 2:11-2260 WBS CMK, 2013 WL 4094403, at *6 (E.D. Cal. Aug. 13, 2013) (same).

         B. Taxable Costs

         Pursuant to the Local Rules of Civil Procedure, “[a] party entitled to costs shall, within fourteen (14) days after the entry of final judgment . . . file with the Clerk of Court and serve upon all parties, a bill of costs on a form provided by the Clerk.” LRCiv 54.1(a). Objections to any cost item may be filed within fourteen days after service of the bill of costs. Id. at 54.1(b). After expiration of the objection period, the Clerk has thirty days in which to tax costs. Id. A motion for district court review must be filed within seven days after the Clerk's taxation. Id.; see also Fed. R. Civ. P. 54(d)(1).

         Plaintiff is entitled to taxable costs, but he must comply with Fed.R.Civ.P. 54(d) and LRCiv 54.1. Within three (3) days of the date this Order is filed, Plaintiff shall file and serve a Bill of Costs listing only taxable items.[3] The Bill of Costs shall not list investigative costs, as such costs are non-taxable and the Court declines to award them due to inadequate documentation, as discussed above.

         II. Attorneys' Fees

         In addition to costs, Plaintiff seeks $10, 415.00 in attorneys' fees. (Doc. 41 at 3.) Plaintiff's counsel, attorney Thomas P. Riley, submitted a declaration in support of this request. (Doc. 41-4 at 2-6.) According to the declaration, Mr. Riley has been practicing law for approximately 23 years, and his billable hourly rate for federal civil litigation is $500.00 per hour. (Id. at 3.) Mr. Riley avers that, “[w]herever possible, ” his office utilizes paralegals, assistants, and a research attorney in order to minimize fees. (Id. at 3-4.) His office bills administrative assistant time at $100.00 per hour, paralegal time at $200.00 per hour, and research attorney time at $300.00 per hour. (Id. at 3.) Mr. Riley's declaration provides no information about the experience or qualifications of the administrative assistants, paralegals, and research attorney utilized by his office. Mr. Riley states that he does not have a fee agreement with Plaintiff, and that Plaintiff has not paid any fees or expenses incurred in this litigation. (Id. at 5.)

         In addition to Mr. Riley's declaration, Plaintiff submitted an incomplete set of billing records reflecting charges totaling $10, 315.00. (Doc. 41-4 at 8-13.)[4] The billing records refer to timekeepers using the following abbreviations: “AA” for administrative assistant, “PRL” for paralegal, “RSA” for research assistant, and “TPR” for Mr. Riley. (Doc. 41-4 at 4.)

         A. Legal Standard

         Under the “American Rule, ” “each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). In the present case, 47 U.S.C. § 605(e)(3)(B)(iii) expressly authorizes the recovery of “reasonable attorneys' fees.”

         The lodestar method, which calculates as a starting point “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, ” Hensley, 461 U.S. at 433, has been used to calculate attorneys' fees under Section 605. See, e.g., Joe Hand Promotions, Inc. v. Pete, No. C-99-0531-VRW, 1999 WL 638215, at *3 (N.D. Cal. Aug. 17, 1999). In determining what constitutes a reasonable hourly rate, the Court must look to the prevailing market rates in the relevant community “for similar work performed by attorneys of comparable skill, experience, and reputation.” Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995). “[T]he general rule is that the rates of attorneys practicing in the forum district . . . are used.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).[5] Plaintiff bears the burden of producing “satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008).

         Fees for work performed by non-attorneys such as paralegals and legal assistants may be included in an award of reasonable attorneys' fees if it is the prevailing practice in the relevant community to bill such fees separately. Trustees of Constr. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1256-57 (9th Cir. 2006). However, if an “attorney's hourly rate already incorporates the cost of work performed by non-attorneys, ” then such work is not separately compensable. Id. at 1257. Some courts in the District of Arizona have held that separate charges for secretarial or clerical work are not properly included in an award of attorneys' fees because such work should be subsumed in a law firm's overhead. See, e.g., Macia, 2014 WL 3747608, at *1; J & J Sports Prods., Inc. v. Mosqueda, No. CV-12-00523-PHX-DGC, 2013 WL 5336848, at *3 (D. Ariz. Sept. 24, 2013); Schrum v. Burlington N. Santa Fe Ry. Co., No. CIV 04-0619-PHX-RCB, 2008 WL 2278137, at *12 (D. Ariz. May 30, 2008). However, other cases have reached the opposite conclusion. See, e.g., Richards v. Del Webb Cmtys., Inc., No. CV-11-368-PHX-SMM, 2013 WL 5445440, at *2 (D. Ariz. Sept. 30, 2013) (allowing recovery of fees for services of legal assistants as part of attorneys' fee award); Skydrive Ariz., Inc. v. Quattrocchi, No. CV 05-2656-PHX-MHM, 2011 WL 1004945, at *4 (D. Ariz. Mar. 22, 2011) (same).

         LRCiv 54.2(c) requires that a motion for award of attorneys' fees be supported by a memorandum of points and authorities that discusses the party's eligibility and entitlement to the award and the reasonableness of the amount sought. Plaintiff's memorandum of points and authorities (Doc. 41-1) discusses eligibility and entitlement, but with respect to the reasonableness of the requested award, it merely references Mr. Riley's declaration. (Id. at 3.) Mr. Riley's declaration does not discuss all of the applicable factors set forth in LRCiv 54.2(c)(3). Furthermore, the declaration does not fully comply with LRCiv 54.2(d)(4).

         B. Reasonable Hourly Rate

         Plaintiff has not met its burden of proving that the hourly rates charged by Mr. Riley's office “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Camacho, 523 F.3d at 980. Plaintiff submitted a Laffey Matrix to support the reasonableness of Mr. Riley's hourly rate; however, the Laffey Matrix submitted by Plaintiff was prepared for the District of Columbia. (See Doc. 41-4 at 15.) The Laffey Matrix does not provide evidence of the prevailing rates charged in the District of Arizona.[6] Furthermore, in his affidavit, Mr. Riley states only that the rates charged by his office “are comparable to rates for specialized litigation law firms, ” and that his “personal rate is comparable to the rates of law firm partners who practice in specialized litigation.” (Id. at 3.) Mr. Riley does not aver that his personal rate and the rates charged by his office are in line with the prevailing rates charged by specialized litigation law firms in the District of Arizona.[7]

         The Court finds that the rates charged by Mr. Riley and his office are higher than the prevailing market rates in this district for similar work performed by attorneys of comparable skill, experience, and reputation. See, e.g., Bray v. Maxwell & Morgan PC, No. CV-17-00486-PHX-DGC, 2017 WL 5668269, at *2 (D. Ariz. Nov. 27, 2017) (finding a rate of $325 per hour higher than average rate in the District of Arizona but reasonable for a lawyer with 20 years of experience); Brooke v. A-Ventures, LLC, No. 2:17-cv-2868-HRH, 2017 WL 5624941, at *6-7 (D. Ariz. Nov. 22, 2017) (reducing requested $650 hourly rate to $350 for attorney with specialized expertise); Wood v. Betlach, No. CV12-08098-PCT-DGC, 2017 WL 1398552, at *8 (D. Ariz. Apr. 19, 2017) (finding rate of $350 per hour to be reasonable); O'Neal v. America's Best Tire LLC, No. CV-16-00056-PHX-DGC, 2017 WL 1311670, at *3-4 (D. Ariz. Apr. 5, 2017) (finding hourly rate of $300 comparable to prevailing rates in the District of Arizona for supervising attorney with specialized expertise). In order to bring Mr. Riley's personal rate in line with the prevailing rates in this community, the Court will reduce the rate to $325 per hour.

         Mr. Riley's declaration fails to comply with LRCiv 54.2(d)(4)(A), which requires the affidavit of moving counsel to provide a “brief description of the relevant qualifications, experience and case-related contributions of each attorney for whom fees are claimed.” Id. (emphasis added). Over half of Plaintiff's requested attorneys' fees, $6, 300.00, were billed by an unnamed research attorney. Mr. Riley's declaration discusses his own qualifications and experience, but it does not provide any information about the qualifications or experience of that research attorney. The Court notes that Plaintiff had been admonished in prior cases for this identical shortcoming. See Mosqueda, 2013 WL 5336848, at *2; Albright, 2013 WL 4094403, at *3. Because Plaintiff has provided no information about the qualifications or experience of the unnamed research attorney in order to support the reasonableness of the hourly rate charged by Mr. Riley's office for that attorney's time, the Court will reduce the unnamed research attorney's hourly rate to $132 per hour, which is the current rate at which Criminal Justice Act (“CJA”) attorneys are compensated in this district.[8]

         Mr. Riley's declaration also fails to provide any information regarding the identity, qualifications, and experience of the paralegals and legal assistants employed by his office. Accordingly, the Court is unable to determine whether the hourly rates charged by such individuals are reasonable. As a result, the Court will reduce the paralegal and legal assistant rates to $55 per hour, which is the current approved hourly rate for compensating CJA paralegals and law clerks in this district.[9]

         C. Hours Reasonably Expended

         The Court may reduce an attorneys' fee award where “the documentation of hours is inadequate” or where requested hours “are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433-34. Both inadequate documentation and unnecessary hours are present in this case.

         The Court is troubled that Mr. Riley's declaration indicates his billing records were reconstructed after the fact rather than created as a result of contemporaneous timekeeping. (See Doc. 41-4 at 4 (“Billable hours for legal services rendered are reconstructed by way of a thorough review of the files themselves.” (emphasis added)).) “Courts have found the billing records of parties that use this practice to be ‘inherently less reliable.'” Albright, 2013 WL 4094403, at *4. The Court notes that Mr. Riley has previously been admonished for failing to create contemporaneous timekeeping records. See id.; G & G Closed Circuit Events, LLC v. Ho, No. 11-CV-03096-PHK, 2012 WL 3043018, at *2 (N.D. Cal. July 25, 2012).

         Many of the charges listed in the billing records are duplicative and excessive. Although Mr. Riley's declaration avers that his office utilizes assistants wherever possible in order to minimize fees, the billing records submitted by Plaintiff show that Mr. Riley repeatedly billed his personal rate for identical tasks that were also performed by an administrative assistant. (See Doc. 41-4 at 8-13.) This duplication of effort resulted in unreasonably high charges for the review of documents which, in many instances, were mere sentences in length. For example, all of the following identical tasks were billed by both Mr. Riley and an administrative assistant:

         • Initial file review and preparation (Doc. 41-4 at 8)

         • Public records review re: Arun Patel (Id.)

         • Review of text order re: assignment to district judge (Id. at 9)

         • Review of minute order re: assignment to Judge Marquez (Id.)

         • Review of pro hac vice fee receipt (Id.)

         • Review of order granting admission pro hac vice (Id.)

         • Review of magistrate judge referral order (Id.)

         • Public records review re: Arun Patel (Id.)

         • Review of executed summons upon NASPP (Id.)

         • Review of executed summons ...


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