United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
Court granted summary judgment against Defendants Arturo
Rubio and J.R.R. Restaurant, LLC for violations of 47 U.S.C.
§ 605 and awarded $6, 700 in damages to Plaintiff J
& J Productions, Inc. Doc. 41. Plaintiff has filed a
motion for attorneys' fees and non-taxable expenses. Doc.
42. The motion is fully briefed, and oral argument has not
been requested. Docs. 46, 47. The Court will grant the motion
requesting an award of attorneys' fees must show that it
is (a) eligible for an award, (b) entitled to an award, and
(c) requesting a reasonable amount. See LRCiv
54.2(c). Section 605 provides that the Court “shall
direct the recovery of full costs, including reasonable
attorneys' fees to an aggrieved party who prevails”
under the statute. 47 U.S.C. § 605.
determine the reasonableness of requested attorneys'
fees, federal courts generally use the “lodestar”
method. See Blanchard v. Bergeron, 489 U.S. 87, 94
(1989); United States v. $186, 416.00 in U.S.
Currency, 642 F.3d 753, 755 (9th Cir. 2011). The Court
must determine the initial lodestar figure by taking a
reasonable hourly rate and multiplying it by the number of
hours reasonably expended on the litigation.
Blanchard, 489 U.S. at 94 (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). The Court then
“determines whether to modify the lodestar figure,
upward or downward, based on factors not subsumed in the
lodestar figure.” Kelly v. Wengler, 822 F.3d
1085, 1099 (9th Cir. 2016). “These factors are known as
the Kerr factors.” Stetson v.
Grissom, 821 F.3d 1157, 1166-67 (9th Cir. 2016) (citing
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975)).
was represented by the Law Offices of Thomas P. Riley, P.C.
in this matter and requests $12, 019 in attorneys' fees
and $1, 250 in investigative costs. This amount represents
$3, 090 for 6.18 hours of work by Mr. Riley at $500 per hour;
$6, 300 for 21 hours of work by a research attorney at $300
per hour; $2, 629 for 26.29 hours of work by an
administrative assistant at $100 per hour; and $1, 250 for
two investigative expenses. Docs. 42 at 1, 3; 42-2 at 4, 17.
assert that Plaintiff's counsel has not provided
“convincing documentation to support its assertion that
the rates charged are reasonable specifically in this
jurisdiction.” Doc. 46 at 7. Reasonable hourly rates
are determined “by the rate prevailing in the 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) (internal quotation marks omitted). Plaintiff's
counsel has approximately 25 years of experience specializing
in commercial broadcast, licensing rights, and satellite
agreements, and his research attorney has practiced law for
over 24 years. Doc. 42-2 at 3. Mr. Riley's declaration
states that he and his research attorney are among only a
handful of attorneys who specialize in civil prosecution of
commercial signal piracy claims on behalf of promoters and
closed-circuit distributors of major sporting events.
Id. Plaintiff also cites several cases from this
district showing that his and his employees' billing
rates are within the range of reasonable rates in Phoenix.
See Doc. 42-1 at 5-6.
has met its initial burden of showing the charged rates are
reasonable, and Defendants offer no contrary evidence. The
Court will not reduce counsel's hourly rates for this
reason. See Chaudhry v. City of L.A., 751 F.3d 1096,
1110-11 (9th Cir. 2014); see, e.g., Massage Envy
Franchising LLC v. Doc Marketing LLC, No.
CV-15-02129-PHX-DLR, 2016 WL 5464594, at *2 (D. Ariz. Sept.
29, 2016) (partners' hourly billing rates of $495, $589,
and $639.60 reasonable for seeking injunctive relief and
compliance with settlement agreement); Alliance Labs, LLC
v. Stratus Pharms., Inc., No. 2:12-cv-00927 JWS, 2013 WL
3298162, at *3 (D. Ariz. July 1, 2013) (finding $520 hourly
median partner rate and $330 hourly median associate rate
reasonable for work on motion to compel).
challenge the total amount of Plaintiff's requested fees
for lack of contemporaneous billing records. Doc. 46 at 5.
Generally, fees are not compensable if the attorneys failed
to maintain time records contemporaneously. See Ariz.
Dream Act Coalition v. Brewer, No. CV 12-02546-PHX-DGC,
2018 WL 6448395, at *7 (D. Ariz. Dec. 10, 2018) (citing
Hensley v. Eckerhart, 461 U.S. 424, 438 n.13 (1983)
(affirming thirty percent reduction for lack of
contemporaneous time records)); New York State Assoc. for
Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.
1983). Lawyers must keep records of work performed and time
expended. It is not enough to recreate the records from
documents, calendars, and other extrinsic evidence.
Kottwitz v. Colvin, 114 F.Supp.3d 145, 150 (S.D.N.Y.
motion and reply concede that the billing records were not
created contemporaneously with work performed. Docs. 42-1 at
6; 47 at 4. Mr. Riley's declaration states that his
firm's “[b]illable hours for legal services
rendered [were] reconstructed by way of a thorough review of
the files themselves. [And that having] handled thousands of
commercial signal piracy files over the last decade and a
half, [the firm is] most capable of calculating billable
hours for legal services rendered.” Doc. 42-2 at 6.
Plaintiff's time records were improperly created after
the work was performed, it is impossible for the Court to
determine the accuracy of the entries. The Court will not
credit after-the-fact records and will accordingly reduce
Plaintiff's requested fees by 50%. See Hensley,
461 U.S. at 438 n.13; Gates v. Deukmejian, 987 F.2d
1392, 1399 (9th Cir. 1992); Ariz. Dream Act
Coalition, 2018 WL 6448395, at *8.
assert several other bases for reducing the requested amount:
Plaintiff's fees are disproportionate to the $6, 700 of
damages awarded; Plaintiff failed to engage in good faith
settlement discussions; the requested amount incentivizes
defendants in § 605 cases to default; and Plaintiff has
filed thousands of similar cases. Doc. 46 at 2-10. Defendants
also argue the Court should award only about 5% of the
requested fees, proportionate to the awarded damages when
compared to those sought. Id. at 3. After
considering Defendants' arguments and Plaintiff's
time entries, the Court finds the requested fees otherwise
reasonable and declines to further reduce the award. The
Court cannot accept Defendants' arguments that the number