1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, No. 2:22-cv-1059-JAM-KJN LLC, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF’S 14 MOTION FOR ATTORNEYS’ FEES AND EVERETT HUNTER, et al., COSTS PURSUANT TO 47 U.S.C. 15 § 605(e)(3)(B)(iii) Defendants. 16
17 18 Plaintiff G & G Closed Circuit Events, LLC’s (“Plaintiff”) 19 obtained default judgment in this action. Default Judgment 20 Order, ECF No. 36. As the prevailing party, Plaintiff now seeks 21 attorneys’ fees and costs pursuant to 47 U.S.C. section 22 605(e)(3)(B)(iii). Mot., ECF No. 38. Since the defendants in 23 this action have not appeared, the motion is unopposed. See 24 generally, Dkt. For the reasons set forth below, the Court 25 GRANTS IN PART and DENIES IN PART Plaintiff’s motion.1 26 /// 27 1This matter is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. OPINION 2 A. Factual Background 3 Plaintiff filed its First Amended Complaint on November 8, 4 2022, against multiple defendants for the allegedly unlawful 5 broadcast of a sporting event in which Plaintiff possessed the 6 exclusive right to distribute. See First Am. Compl. (“FAC”), 7 ECF No. 17. The FAC asserts violations of the Federal 8 Communications Act of 1934, 47 U.S.C. § 605, among other claims. 9 Id. 10 Defendants Everett Hunter and Port City Sports Bar and 11 Grill, LLC failed to file a responsive pleading to the FAC, see 12 Dkt., and the Clerk of Court entered default as to those 13 defendants on December 23, 2022. Clerk’s Entry of Default, ECF 14 No. 27. The only remaining defendant, Tommy Barksdale, was 15 later dismissed without prejudice. Minute Order, ECF No. 30. 16 Plaintiff then moved for default judgment. Plf.’s Mot. for 17 Default Judgment, ECF No. 31. The Magistrate Judge found and 18 recommended that default judgment be entered and that Plaintiff 19 be awarded damages in the sum of $6,900.00. Findings and 20 Recommendations, ECF No. 34. This Court adopted the Magistrate 21 Judge’s findings and recommendations in full and ordered 22 Plaintiff to file a motion for costs and fees within 14 days. 23 Default Judgment Order, ECF No. 36. Plaintiff timely filed the 24 instant motion, seeking $12,818.40 in fees and $2,338.47 in 25 costs under 47 U.S.C. section 605(e)(3)(B)(iii). Mot. at 7. 26 /// 27 /// 28 /// 1 B. Legal Standard 2 An aggrieved party that prevails under the Federal 3 Communications Act is entitled to recover “full costs,” 4 including “reasonable attorneys’ fees.” 47 U.S.C. 5 § 605(e)(3)(B)(iii). A “person aggrieved” includes a party 6 “with proprietary rights in the intercepted communication by 7 wire or radio, including wholesale or retail distributors of 8 satellite cable programming . . . .” Id. at § 605(d)(6). 9 Because default judgment has been entered as to this claim, and 10 based on the Magistrate Judge’s Findings and Recommendations, 11 Plaintiff necessarily qualifies as an aggrieved party who 12 prevailed and may thus recover “full costs” under section 605. 13 “Once a party is found eligible for fees, the district 14 court must then determine what fees are reasonable.” Roberts v. 15 City of Honolulu, 938 F.3d 1020, 1023 (9th Cir. 2019) (quoting 16 Klein v. City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 17 2016)). 18 C. Analysis 19 Plaintiff seeks $12,818.40 in attorneys’ fees and $2,338.47 20 in costs under 47 U.S.C. section 605(e)(3)(B)(iii). Mot. at 1, 21 7. 22 1. Attorneys’ Fees 23 “[D]istrict courts in the Ninth Circuit apply the lodestar 24 method to determine whether a fee request is reasonable under 25 Section 605.” G & G Closed Cir. Events, LLC v. Velasquez, No. 26 1:20-CV-1736 JLT SAB, 2022 WL 348165 (E.D. Cal. Feb. 4, 2022) 27 (collecting cases); see also Kelly v. Wengler, 822 F.3d 1085, 28 1099 (9th Cir. 2016). The lodestar is calculated by 1 “multiplying the number of hours reasonably expended on a case 2 by a reasonable hourly rate.” Kelly, 822 F.3d at 1099. The 3 Court may also modify “the lodestar figure, upward or downward, 4 based on factors not subsumed in the lodestar figure.” Id. 5 a. Reasonable Hourly Rates 6 The Court must determine a reasonable hourly rate 7 considering the experience, skill, and reputation of the 8 attorney requesting fees and should be guided by the prevailing 9 rate in the forum community for similar work performed by 10 comparable attorneys. Chalmers v. City of Los Angeles, 796 F.2d 11 1205, 1210 (9th Cir. 1986), opinion amended on denial of reh'g, 12 808 F.2d 1373 (9th Cir. 1987). Here, Mr. Riley asserts his 13 current billable rate is $600.00 per hour and submits a 14 declaration in support thereof, but he acknowledges that $350.00 15 per hour has previously been found reasonable. Mot. at 5; 16 Declaration of Thomas P. Riley (“Riley Declaration”), ECF No. 17 38-1 at ¶ 6. Indeed, other courts in this District have found 18 an hourly rate between $350.00 and $375.00 to be reasonable as 19 to Mr. Riley. See J & J Sports Prods. Inc. v. Cervantes, No. 20 116CV00485DADJLT, 2019 WL 935387 at *3 (E.D. Cal. Feb. 26, 2019) 21 ($375.00); G&G Closed Cir. Events, LLC v. Barajas-Quijada, No. 22 1:19-CV-1259 AWI JLT, 2020 WL 1640005 at *2 (E.D. Cal. Apr. 2, 23 2020) (same); J & J Sports Prods., Inc. v. Barajas, No. 24 115CV01354DADJLT, 2017 WL 469343 (E.D. Cal. Feb. 2, 2017) 25 ($350.00); Velasquez, 2022 WL 348165 (same). 26 Given Mr. Riley’s skill, experience, and the prevailing 27 rate for similar legal work in the Eastern District, the Court 28 finds an hourly rate of $375.00 to be reasonable and consistent 1 with other courts in this District. 2 Plaintiff also seeks to recover $350.00 for every hour 3 billed by an unidentified research attorney. Mot. at 5; Riley 4 Decl. at ¶ 6. Given the minimal information provided about this 5 research attorney, see Riley Decl. at ¶ 3, the Court joins the 6 other courts in this District that previously found an hourly 7 rate of $225.00 to be reasonable. See Velasquez, 2022 WL 348165 8 at *5; Barajas-Quijada, 2020 WL 1640005 at *2. 9 In sum, the Court finds the hourly rates of $375.00 and 10 $225.00 are reasonable as to Mr. Riley and his research 11 attorney, respectively. 12 b. Hours Reasonably Expended 13 The Court must also determine whether the hours expended 14 were reasonable. Kelly, 822 F.3d at 1099. “In determining 15 reasonable hours, counsel bears the burden of submitting 16 detailed time records justifying the hours claimed to have been 17 expended.” Chalmers, 796 F.2d at 1210. Courts may reduce the 18 hours expended “where documentation of the hours is inadequate; 19 if the case was overstaffed and hours are duplicated; [or] if 20 the hours expended are deemed excessive or otherwise 21 unnecessary.” Id. (citing Hensley, 461 U.S. at 433-34); see 22 also J & J Sports Prods., Inc. v. Napuri, No. C 10-04171 SBA, 23 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013). Here, the 24 hours expended do not appear excessive or unnecessary, and the 25 total time spent was reasonable for the work completed in this 26 action.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, No. 2:22-cv-1059-JAM-KJN LLC, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF’S 14 MOTION FOR ATTORNEYS’ FEES AND EVERETT HUNTER, et al., COSTS PURSUANT TO 47 U.S.C. 15 § 605(e)(3)(B)(iii) Defendants. 16
17 18 Plaintiff G & G Closed Circuit Events, LLC’s (“Plaintiff”) 19 obtained default judgment in this action. Default Judgment 20 Order, ECF No. 36. As the prevailing party, Plaintiff now seeks 21 attorneys’ fees and costs pursuant to 47 U.S.C. section 22 605(e)(3)(B)(iii). Mot., ECF No. 38. Since the defendants in 23 this action have not appeared, the motion is unopposed. See 24 generally, Dkt. For the reasons set forth below, the Court 25 GRANTS IN PART and DENIES IN PART Plaintiff’s motion.1 26 /// 27 1This matter is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. OPINION 2 A. Factual Background 3 Plaintiff filed its First Amended Complaint on November 8, 4 2022, against multiple defendants for the allegedly unlawful 5 broadcast of a sporting event in which Plaintiff possessed the 6 exclusive right to distribute. See First Am. Compl. (“FAC”), 7 ECF No. 17. The FAC asserts violations of the Federal 8 Communications Act of 1934, 47 U.S.C. § 605, among other claims. 9 Id. 10 Defendants Everett Hunter and Port City Sports Bar and 11 Grill, LLC failed to file a responsive pleading to the FAC, see 12 Dkt., and the Clerk of Court entered default as to those 13 defendants on December 23, 2022. Clerk’s Entry of Default, ECF 14 No. 27. The only remaining defendant, Tommy Barksdale, was 15 later dismissed without prejudice. Minute Order, ECF No. 30. 16 Plaintiff then moved for default judgment. Plf.’s Mot. for 17 Default Judgment, ECF No. 31. The Magistrate Judge found and 18 recommended that default judgment be entered and that Plaintiff 19 be awarded damages in the sum of $6,900.00. Findings and 20 Recommendations, ECF No. 34. This Court adopted the Magistrate 21 Judge’s findings and recommendations in full and ordered 22 Plaintiff to file a motion for costs and fees within 14 days. 23 Default Judgment Order, ECF No. 36. Plaintiff timely filed the 24 instant motion, seeking $12,818.40 in fees and $2,338.47 in 25 costs under 47 U.S.C. section 605(e)(3)(B)(iii). Mot. at 7. 26 /// 27 /// 28 /// 1 B. Legal Standard 2 An aggrieved party that prevails under the Federal 3 Communications Act is entitled to recover “full costs,” 4 including “reasonable attorneys’ fees.” 47 U.S.C. 5 § 605(e)(3)(B)(iii). A “person aggrieved” includes a party 6 “with proprietary rights in the intercepted communication by 7 wire or radio, including wholesale or retail distributors of 8 satellite cable programming . . . .” Id. at § 605(d)(6). 9 Because default judgment has been entered as to this claim, and 10 based on the Magistrate Judge’s Findings and Recommendations, 11 Plaintiff necessarily qualifies as an aggrieved party who 12 prevailed and may thus recover “full costs” under section 605. 13 “Once a party is found eligible for fees, the district 14 court must then determine what fees are reasonable.” Roberts v. 15 City of Honolulu, 938 F.3d 1020, 1023 (9th Cir. 2019) (quoting 16 Klein v. City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 17 2016)). 18 C. Analysis 19 Plaintiff seeks $12,818.40 in attorneys’ fees and $2,338.47 20 in costs under 47 U.S.C. section 605(e)(3)(B)(iii). Mot. at 1, 21 7. 22 1. Attorneys’ Fees 23 “[D]istrict courts in the Ninth Circuit apply the lodestar 24 method to determine whether a fee request is reasonable under 25 Section 605.” G & G Closed Cir. Events, LLC v. Velasquez, No. 26 1:20-CV-1736 JLT SAB, 2022 WL 348165 (E.D. Cal. Feb. 4, 2022) 27 (collecting cases); see also Kelly v. Wengler, 822 F.3d 1085, 28 1099 (9th Cir. 2016). The lodestar is calculated by 1 “multiplying the number of hours reasonably expended on a case 2 by a reasonable hourly rate.” Kelly, 822 F.3d at 1099. The 3 Court may also modify “the lodestar figure, upward or downward, 4 based on factors not subsumed in the lodestar figure.” Id. 5 a. Reasonable Hourly Rates 6 The Court must determine a reasonable hourly rate 7 considering the experience, skill, and reputation of the 8 attorney requesting fees and should be guided by the prevailing 9 rate in the forum community for similar work performed by 10 comparable attorneys. Chalmers v. City of Los Angeles, 796 F.2d 11 1205, 1210 (9th Cir. 1986), opinion amended on denial of reh'g, 12 808 F.2d 1373 (9th Cir. 1987). Here, Mr. Riley asserts his 13 current billable rate is $600.00 per hour and submits a 14 declaration in support thereof, but he acknowledges that $350.00 15 per hour has previously been found reasonable. Mot. at 5; 16 Declaration of Thomas P. Riley (“Riley Declaration”), ECF No. 17 38-1 at ¶ 6. Indeed, other courts in this District have found 18 an hourly rate between $350.00 and $375.00 to be reasonable as 19 to Mr. Riley. See J & J Sports Prods. Inc. v. Cervantes, No. 20 116CV00485DADJLT, 2019 WL 935387 at *3 (E.D. Cal. Feb. 26, 2019) 21 ($375.00); G&G Closed Cir. Events, LLC v. Barajas-Quijada, No. 22 1:19-CV-1259 AWI JLT, 2020 WL 1640005 at *2 (E.D. Cal. Apr. 2, 23 2020) (same); J & J Sports Prods., Inc. v. Barajas, No. 24 115CV01354DADJLT, 2017 WL 469343 (E.D. Cal. Feb. 2, 2017) 25 ($350.00); Velasquez, 2022 WL 348165 (same). 26 Given Mr. Riley’s skill, experience, and the prevailing 27 rate for similar legal work in the Eastern District, the Court 28 finds an hourly rate of $375.00 to be reasonable and consistent 1 with other courts in this District. 2 Plaintiff also seeks to recover $350.00 for every hour 3 billed by an unidentified research attorney. Mot. at 5; Riley 4 Decl. at ¶ 6. Given the minimal information provided about this 5 research attorney, see Riley Decl. at ¶ 3, the Court joins the 6 other courts in this District that previously found an hourly 7 rate of $225.00 to be reasonable. See Velasquez, 2022 WL 348165 8 at *5; Barajas-Quijada, 2020 WL 1640005 at *2. 9 In sum, the Court finds the hourly rates of $375.00 and 10 $225.00 are reasonable as to Mr. Riley and his research 11 attorney, respectively. 12 b. Hours Reasonably Expended 13 The Court must also determine whether the hours expended 14 were reasonable. Kelly, 822 F.3d at 1099. “In determining 15 reasonable hours, counsel bears the burden of submitting 16 detailed time records justifying the hours claimed to have been 17 expended.” Chalmers, 796 F.2d at 1210. Courts may reduce the 18 hours expended “where documentation of the hours is inadequate; 19 if the case was overstaffed and hours are duplicated; [or] if 20 the hours expended are deemed excessive or otherwise 21 unnecessary.” Id. (citing Hensley, 461 U.S. at 433-34); see 22 also J & J Sports Prods., Inc. v. Napuri, No. C 10-04171 SBA, 23 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013). Here, the 24 hours expended do not appear excessive or unnecessary, and the 25 total time spent was reasonable for the work completed in this 26 action. Therefore, the Court will not reduce the time billed by 27 both counsel. 28 However, the Court declines to award fees for the time 1 expended by Mr. Riley’s administrative assistant. See Riley 2 Decl. at ¶¶ 5-7; Exh. 1 at 6-10. Tasks that are clerical or 3 duplicative are not compensable. E.g., Nadarajah v. Holder, 569 4 F.3d 906 (9th Cir. 2009) (clerical); Velasquez, 2022 WL 348165 5 (collecting cases regarding duplicative billings). “[Clerical] 6 tasks include, but are not limited to: creating indexes for a 7 binder; filing emails, memoranda, and other correspondence; 8 updating the case calendar with new dates; copying, scanning, 9 and faxing documents; and filing or serving documents.” Moore 10 v. Chase, Inc., No. 1:14-CV-01178-SKO, 2016 WL 3648949, at *3 11 (E.D. Cal. July 7, 2016) (citing Prison Legal News v. 12 Schwarzenegger, 561 F.Supp.2d 1095, 1102 (N.D. Cal. 2008)). 13 Here, many of the administrative assistant’s entries are 14 duplicative of Mr. Riley’s entries. See generally Exh. 1 to 15 Mot. Other entries are clerical or block-billed with clerical 16 tasks thus preventing the Court from determining how much time 17 within each entry was spent on compensable tasks, if any. E.g., 18 Exh. 1 at 6 (2/10/22, “Preparation, Filing, and Service of Third 19 Demand letter to Chantille Marie Clemons”). Although document 20 preparation may be a compensable task, the billable descriptions 21 here are ambiguous and do not sufficiently support that non- 22 clerical skills were required. See, e.g., Exh. 1 to Mot. at 9 23 (1/15/2024, “Preparation of Attorneys’ Fees and Costs Bill”). 24 Therefore, the Court declines to award the administrative 25 assistant’s fees given the clerical and duplicative nature of 26 the tasks billed. 27 c. Lack of Contemporaneous Billing System 28 A contemporaneous billing system is not necessary to 1 recover attorneys’ fees, but it is preferred. Fischer v. SJB- 2 P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000). Mr. Riley does 3 not utilize a contemporaneous billing system. Riley Decl. at 4 ¶ 7. Instead, the hours are reconstructed by reviewing the file 5 and notes at some later time. Id. Courts in this District have 6 found the lack of contemporaneous billing to be less reliable 7 and “have reduced the fee award where the time requested for 8 certain tasks appeared to be unnecessary, excessive, or 9 unreasonable.” Joe Hand Promotions, Inc. v. Albright, No. CIV. 10 2:11-2260 WBS, 2013 WL 4094403 at *4 (E.D. Cal. Aug. 13, 2013) 11 (collecting cases); Cervantes, 2019 WL 935387 at *4. Here, 12 however, the Court does not find the requested time to be 13 unnecessary, excessive, or unreasonable such that a reduction is 14 warranted despite the lack of a contemporaneous billing system. 15 d. Lodestar Amount 16 After the rate and hour adjustments, Plaintiff is entitled 17 to recover 5.05 hours at $375.00 per hour for Mr. Riley and 18 24.00 hours at $225.00 per hour for the unidentified research 19 attorney, for a total sum of $7,293.75 in attorneys’ fees. 20 2. Costs 21 Plaintiff is also entitled to recover “full costs” under 47 22 U.S.C. § 605(e)(3)(B)(iii). Nevertheless, there is a limit as 23 to what costs are compensable, and sufficient documentation must 24 be provided to support that the costs were reasonable. Here, 25 Plaintiff seeks $2,338.47 in costs, which consists of $402.00 26 for the Court’s filing fee, $929.60 for service of process fees, 27 $710.00 in investigative expenses, and $296.87 in courier 28 charges. Exh. 1 to Mot. at 9; Exh. 2 to Mot.; Exh. 3 to Mot. 1 Filing and service of process fees are compensable, e.g., 2 Velasquez, No. 1:20-CV-1736 JLT SAB, 2022 WL 348165 at *7, and 3 Plaintiff is entitled to recover those costs based on the record 4 and documents provided. See Dkt. No. 1 (filing fee); Exh. 3 to 5 Mot. (service of process fees). However, for the reasons stated 6 below, the Court declines to award Plaintiff investigative and 7 courier costs. 8 Purely investigative costs are generally not recoverable, 9 see Koppinger v. Cullen-Schiltz & Assocs., 513 F.2d 901 (8th 10 Cir. 1975), and many courts in this Circuit have refused to 11 award pre-litigation investigative costs under section 12 605(e)(3)(B)(iii). E.g., Velasquez, 2022 WL 348165 (E.D. Cal. 13 Feb. 4, 2022) (collecting cases); but see J & J Sports Prods., 14 Inc. v. Pagliaro, No. 1:12-CV-1507-LJO-SAB, 2014 WL 7140605 at 15 *2 (granting investigative costs without expressly identifying 16 them in its order or discussing their propriety). Even if the 17 Court were to hold that purely investigative expenses are 18 compensable under section 605, the documentation provided here 19 is insufficient to support that the charge was reasonable. G & 20 G Closed Circuit Events, LLC v. Parker, 2021 WL 164998, at *9 21 (S.D. Cal. Jan. 19, 2021) (declining to “award investigator fees 22 when documented by an invoice containing nothing more than an 23 amount without even detailing the investigative services 24 provided or qualifications of the investigator.”); G & G Closed 25 Cir. Events, LLC v. LA Placita RM Rest. Inc., No. 2:22-CV-01089- 26 DAD-DB, 2023 WL 8933585 (E.D. Cal. Dec. 26, 2023). Mr. Riley 27 opines that this cost was reasonable, Riley Declaration at ¶ 9, 28 but the only documentation Plaintiff submits is an invoice 1 generated not by the investigative company but by the Law 2 Offices of Thomas P. Riley. See Exh. 2 to Mot. at 12. 3 Critically, however, the qualifications of the investigator and 4 details of the investigation are omitted. See generally Mot.; 5 Riley Decl. ¶ 9. Based on this information, the Court cannot 6 conclude whether this cost is reasonable, even assuming 7 investigative costs are compensable. See J & J Sports Prods., 8 Inc. v. Barajas, No. 115CV01354DADJTL, 2016 WL 2930549 at *5 9 (E.D. Cal. May 19, 2016). 10 The same is true for the courier charges Plaintiff seeks to 11 recover. The only documentation Plaintiff provides is an 12 itemization of courier expenses generated by the Law Offices of 13 Thomas P. Riley; Plaintiff does not include receipts for the 14 courier expenses incurred. See Exh. 1 to Mot. at 9. Therefore, 15 the Court finds Plaintiff has not provided sufficient 16 documentation to support an award of courier costs. E.g., 17 Barajas, 2016 WL 2930549 at *3 (refusing to award courier 18 charges when no documentation was provided even though courier 19 fees are recoverable under § 605); G & G Closed Cir. Events, LLC 20 v. Aguilar, No. 18CV465 JM (BGS), 2018 WL 6445883 (S.D. Cal. 21 Dec. 10, 2018) (same). 22 In sum, Plaintiff is entitled to $402.00 in filing fees and 23 $929.60 in service of process fees for total sum of $1,331.60 in 24 costs. All other requests for costs are denied. 25 II. ORDER 26 Accordingly, the Court ORDERS as follows: 27 The Court GRANTS IN PART and DENIES IN PART Plaintiff’s 28 motion for attorneys’ fees and costs under 47 U.S.C. section ee mE NII RIDER EEN III IEE IERIE OE II ED eee
1 605(e) (3) (B) (111). Plaintiff is awarded $7,293.75 in attorneys’ 2 fees and $1,331.60 in costs, for a total sum of $8,625.35. 3 IT IS SO ORDERED. 4 Dated: March 26, 2024
A Ts JOHN A. MENDEZ 7 SENIOR UNITED*STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10