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J & J Sports Productions Inc. v. Rubio

United States District Court, D. Arizona

April 9, 2019

J & J Sports Productions, Inc., Plaintiff,
v.
Arturo Rubio, an individual; J.R.R. Restaurant, LLC, d/b/a Filiberto's Mexican Food, Defendants.

          ORDER

          David G. Campbell, Senior United States District Judge

         The 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 in part.

         I. Legal Standard.

         A party 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.

         To 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)).

         II. Discussion.

         Plaintiff 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.

         A. Attorneys' Fees.

         Defendants 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.

         Plaintiff 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).

         Defendants 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. 2015).

         Plaintiff's 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.

         Because 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.

         Defendants 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 ...


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