United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
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.) 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.)
pending before the Court is Plaintiff's Motion for Award
of Costs and Attorneys' Fees. (Doc. 41.) Defendants did
not respond to the Motion.
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).
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.
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.) 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).
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).
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. 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.
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.
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.) 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.)
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.”
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). 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).
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).
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
Reasonable Hourly Rate
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. 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.
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.
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
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.
Hours Reasonably Expended
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.
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).
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
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
Review of pro hac vice fee receipt (Id.)
Review of order granting admission pro hac vice
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 ...