G&G Closed Circuit Events LLC v. Alexander

Opinion

1 WO 2 3 4 5

9 G&G Closed Circuit Events LLC, No. CV-18-02886-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Oscar Alexander, et al.,

13 Defendants. 14 15 Plaintiff has filed a motion for an award of nontaxable costs and attorneys’ fees 16 pursuant to 47 U.S.C. § 605(e)(3)(B)(iii) and this district’s local rules. See LRCiv. 54.2(c). 17 The Court will grant the motion in part and deny it in part. 19 A party seeking an award of attorneys’ fees must show they are (1) eligible for a fee 20 award, (2) entitled to a fee award, and (3) requesting a reasonable fee amount. 21 LRCiv. 54.2(c)(1)–(3). Here, Plaintiff prevailed on its 47 U.S.C. § 605 claim for relief. 22 (Doc. 44). That statute states the court “shall direct the recovery of full costs, including 23 awarding reasonable attorneys’ fees to an aggrieved party who prevails.” 24 47 U.S.C. § 605(e)(3)(B)(iii). As the prevailing party, Plaintiff is thus entitled to and 25 eligible for “reasonable” attorneys’ fees. See id.; LRCiv. 54.2(c). 26 Federal courts generally use the “lodestar” method to determine if an attorney’s fee 27 award request is reasonable. See G&G Closed Circuit Events LLC v. Espinoza, 28 2020 WL 1703630, *1 (D. Ariz. Apr. 8, 2020); Gonzalez v. City of 1 Maywood, 729 F.3d 1196, 1201 (9th Cir. 2013). First, the Court must determine the initial 2 lodestar figure by multiplying a reasonable hourly rate by the number of hours reasonably 3 spent on the litigation. Id.; see also Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). Then, 4 the Court may modify the lodestar figure “upward or downward based on a variety of 5 factors.” Gonzalez, 729 F.3d at 1202 (quoting Moreno v. City of 6 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)); see also LRCiv. 54.2(c)(3)(A)–(M) 7 (listing factors that may influence the reasonableness of the requested fee award). 8 The fee award applicant bears the burden of producing both (i) detailed time records 9 to establish that the number of compensable hours requested is reasonable, and (ii) 10 “satisfactory evidence” that the requested hourly rate comports with prevailing market rates 11 for attorneys in the forum district with similar skill, experience, and reputation. Gonzalez, 12 729 F.3d at 1202–06; see also Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The Court 13 may reduce the number of hours claimed by the fee applicant if “the documentation of 14 hours is inadequate, or if the hours expended are excessive and unnecessary.” J&J Sports 15 Productions, Inc. v. Marini, 2018 WL 2155710, *1 (E.D. Cal. May 10, 2018); see also 16 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). 18 Plaintiff’s Counsel seeks attorneys’ fees in the amount of $18,551.80. (Doc. 46). 19 This figure includes: 8.53 hours at $550.00 an hour for Plaintiff’s Counsel; 37.5 hours at 20 $300.00 an hour for his research attorney; and 23.73 hours at $110.00 an hour for his 21 administrative assistant. Id. Plaintiff’s Counsel states that his firm “specializes in the civil 22 prosecution of commercial signal piracy claims on behalf of promoters and closed-circuit 23 distributors of major televised sporting events and has done so since December 1994.” 24 (Declaration of Thomas P. Riley (“Riley Decl.”), Doc. 46-2 at ¶ 6). No substantive 25 information is supplied regarding the research attorney or the administrative assistant. 26 At the outset, the Court will recognize some guiding principles in determining the 27 reasonableness of the fee award requested. Given Plaintiff’s Counsel’s experience with 28 similar 47 U.S.C. § 605 cases, this body of work would not be considered complicated. He 1 is working within a closed universe of caselaw and arguments of this type are not typically 2 novel. The use of administrative assistants for clerical and/or duplicative work will not be 3 included in the lodestar figure. Marini, 2018 WL 2155710, at *2. Compensation for use of 4 boilerplate and form documents will likewise be reduced. See Espinoza, 5 2020 WL 1703630, at *1. 6 A. Hourly Rates 7 Determination of a reasonable hourly rate is required for the lodestar figure 8 calculation. See Gonzalez, 729 F.3d at 1201. The reasonableness of an hourly rate depends 9 on “the rate prevailing in the community for similar work performed by attorneys of 10 comparable skill, experience, and reputation.” Schwarz v. Secretary of Health & Human 11 Services, 73 F.3d 895, 908 (9th Cir. 1995) (quoting Chalmers, 796 F.2d at 1210–11. “The 12 ‘relevant community’ for the purposes of determining the reasonable hourly rate is the 13 district in which the lawsuit proceeds.” Marini, 2018 WL 2155710, at *1; see also 14 Gonzalez, 729 F.3d at 1205. Here, the claimed hourly rate must be compared against 15 attorneys practicing in the Phoenix Division for the District of Arizona. 16 Plaintiff’s Counsel depends on the “Laffey matrix” and his own declaration to 17 establish the reasonableness of his hourly rate. (Riley Decl. ⁋⁋ 9–12). While the Laffey 18 matrix sets forth the prevailing market rates for attorneys practicing in the District of 19 Columbia, the Court is not convinced that it is appropriate here. The matrix’s relevance in 20 determining reasonable rates outside of the District of Columbia has been previously 21 questioned. See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) 22 (“[J]ust because the Laffey matrix has been accepted in the District of Columbia does not 23 mean that it is a sound basis for determining rates elsewhere…”); J&J Sports 24 Productions, Inc. v. Duong, 2014 WL 1478498, *3 (N.D. Cal. Apr. 14, 2014). Courts in 25 this jurisdiction and elsewhere have declined to accept Plaintiff’s Counsel’s explanation as 26 reliable evidence of the reasonableness of his rates. See e.g., Espinoza, 27 2020 WL 1703630, at *3; J&J Sports Productions Incorporated v. Patel, 28 2018 WL 1609731, *4 (D. Ariz. Apr. 3, 2018); Duong, 2014 WL 1478498, at *3–4; 1 Joe Hand Promotions, Inc. v. Albright, 2013 WL 4094403, *2 (E.D. Cal. Aug. 13, 2013). 2 Accordingly, Plaintiff’s Counsel has not met his required burden of providing “satisfactory 3 evidence” that the requested hourly rates are reasonable as applied to the Phoenix legal 4 market. See Gonzalez, 729 F.3d at 1202–06. 5 The Court must thus independently determine the reasonable hourly rate component 6 of the lodestar figure. Based on relevant caselaw and market rates in this district for similar 7 legal work, the Court will reduce Plaintiff’s Counsel’s rate to $350 per hour. See 8 Espinoza, 2020 WL 1703630, at *3; Patel, 2018 WL 1609731, at *4 (citing to cases finding 9 a $300–$350 per hour rate reasonable for attorneys with similar experience as Plaintiff’s 10 Counsel); Marini, 2018 WL 2155710, at *2. 11 Questions regarding the experience and identity of Plaintiff’s research attorney have 12 been raised in the past. See, e.g., Espinoza, 2020 WL 1703630, at *4. Despite previous 13 courts raising this issue, Plaintiff’s Counsel in this fee application did not provide much 14 relevant information about the research attorney. (Riley Decl. ⁋ 5 (describing only that the 15 research attorney’s experience includes practicing law for over twenty-five years, ten of 16 which include assisting Plaintiff’s Counsel with commercial signal piracy claims)). 17 Without having a clear baseline from which to determine fee reasonableness (such as a 18 curriculum vitae), the Court will reduce the research attorney’s rates to $150 per hour to 19 be consistent with rates previously determined reasonable in this district and others. See 20 Espinoza, 2020 WL 1703630, at *4; Patel, 2018 WL 1609731, at *4. The Court declines 21 to determine the reasonableness of the administrative assistant’s hourly rates, as the Court 22 will not award any fees for the clerical tasks completed by the administrative assistant, as 23 discussed below. 24 B. Compensable Hours 25 The lodestar figure requires the determination of a reasonable number of 26 compensable hours. See Gonzalez, 729 F.3d at 1201. The Court must thus review the 27 billing records submitted by the requesting party and “exclude those hours for which it 28 would be unreasonable to compensate.” Id. at 1203. Defendants argue that many of the 1 hours expended on this matter were excessive. (Doc. 48). After a close review of the billing 2 record submitted by Plaintiff (Doc. 46-2), the Court agrees with Defendants on multiple 3 points and accordingly reduces certain hours billed by Plaintiff’s Counsel and the research 4 attorney. 5 i. Non-Contemporaneous Billing Records 6 In support of its fee request, Plaintiff submits a chart detailing the time entries “For 7 Services Rendered from 10/03/17 Through 04/27/20” and a supporting declaration by 8 Plaintiff’s Counsel. (Doc. 46-2). The submitted billing records were not based on 9 contemporaneous timekeeping. (Riley Decl. ⁋ 13 (“Billable hours for legal services 10 rendered are reconstructed by way of a thorough review of the files themselves. Having 11 handled thousands of commercial signal piracy files over the last decade and a half, we are 12 most capable of calculating billable hours for legal services rendered.”)). As a matter of 13 best practice, contemporaneous timekeeping is the most reliable method, as it prevents 14 overbilling clients and unwarranted fee-shifting requests. Other courts have addressed this. 15 See, e.g., Duong, 2014 WL 1478498, at *3 (requiring additional documentation supporting 16 the fee award request based in part on the lack of contemporaneous time records); J&J 17 Sports Productions, Inc. v. Napuri, 2013 WL 4428573, *2 (N.D. Cal. Aug. 15, 2013) 18 (“Absent the submission of detailed contemporaneous time records justifying the hours 19 claimed to have been expended on this case, the Court gives little weight to the figures 20 provided by Plaintiff.”). The Court here will use its own experience and discretion to 21 determine the reasonableness of each time entry and adjust accordingly. 22 ii. Clerical and Duplicated Tasks 23 Plaintiff’s fee request includes certain billing entries for duplicative, clerical tasks 24 completed by both Plaintiff’s Counsel and his administrative assistant. (See, e.g., the 25 duplicated 4/17/18 and 9/11/18 time entries listing “Preparation and Service of Letter of 26 Representation to defense counsel” by the administrative assistant and the nearly identical 27 time entries listing “Review and Execution of Letter of Representation to defense counsel” 28 by Plaintiff’s Counsel on the same dates). (Doc. 46-2). Past courts have declined to include 1 similar clerical billing in the lodestar figure. See Espinoza, 2018 WL 1703630, at *2; 2 Albright, 2013 WL 4094403, at *3. A reasonable fee award can include compensation for 3 non-attorney individuals if their “labor contributes to work product.” Espinoza, 4 2018 WL 1703630, at *2 (quoting Missouri v. Jenkins, 491 U.S. 274, 285 (1989)). The 5 requesting party must also provide evidence that it is custom in the “relevant market” to 6 bill for non-attorney work. Id. Otherwise, it is typically assumed that clerical, duplicated 7 work is subsumed into firm overhead. Id.; Nadarajah v. Holder, 569 F.3d 906, 921 8 (9th Cir. 2009). Plaintiff’s Counsel does not provide evidence or explanation that it is 9 custom in this district to bill for administrative assistant work. Accordingly, the Court will 10 exclude any hours billed for his administrative assistant’s work from the lodestar figure 11 and any unreasonably duplicative work. 12 The fee request also includes multiple de minimis six-minute time-entry narratives 13 for docket review and Court communications. (See, e.g., the 0.10 time entry on 9/18/19 of 14 Plaintiff’s Counsel’s “Review of the Court’s Minute Order reassigning case”) (Doc. 46-2). 15 Other courts have found such entries as clerical in nature. Espinoza, 2018 WL 1703630, 16 at *3; G&G Closed Circuit Events, LLC v. Aguilar, 2018 WL 6445883, *2 (S.D. Cal. 17 Dec. 10, 2018). The Court likewise declines to include these time entries in the lodestar 18 figure, thereby reducing the request for docket review and Court communications to 0.9 19 total compensable hours. Similarly, the Court finds that Counsel’s review and execution of 20 his Motion for Admission Pro Hac Vice, clerical in nature and will exclude that time from 21 the lodestar figure. See Nadarajah, 569 F.3d at 921. 22 iii. Boilerplate Documents 23 Plaintiff’s Counsel has filed hundreds of actions similar to the current matter. A 24 court may find a fee request excessive when the action is routine or substantially like prior 25 actions brought forth by the same attorney. See Patel, 2018 WL 1609731, at *7; 26 Albright, 2013 WL 4094403, at *4. Plaintiff’s Counsel has a reputation for using 27 boilerplate pleadings and form motions. See, e.g., Patel, 2018 WL 1609731, at *7. As 28 Judge Teilborg noted in an April 8, 2020 Order, “[t]he Court is constrained to review Mr. 1 Riley’s bill with something of a jaundiced eye because of his well-known use of boilerplate 2 pleadings and form motions in the many hundreds of actions similar to this one that he 3 maintains across the country.” Espinoza, 2020 WL 1703630, at *2. This Court will take 4 the same approach. In the current matter, the Court will reduce the hours requested by 5 Plaintiff’s Counsel by 1.18 hours for boilerplate and routine items. 6 Most of the remaining undiscussed requested fees are hours billed by the 7 unidentified research attorney. Although some of the corresponding time entries identify 8 the documents prepared by the research attorney, they fail to “adequately describe the 9 services rendered so that the reasonableness of the charge can be evaluated.” 10 LRCiv. 54.2(e)(2). Time entries related to the preparation of pleadings or other papers 11 “must identify the pleading, paper or other document prepared and the activities associated 12 with its preparation.” LRCiv. 54.2(e)(2)(C). Time entries related to legal research “must 13 identify the specific legal issue research and, if appropriate, should identify the pleading or 14 document the preparation of which occasioned the conduct of the research.” 15 LRCiv. 54.2(e)(2)(B). If a time entry fails to do so, the court may reduce the fee award 16 requested. LRCiv. 54.2(e)(2). 17 Because the timekeeping records do not adequately describe the services performed 18 by the research attorney as required by LRCiv. 54.2(e)(2), the Court is unable to evaluate 19 the reasonableness of the time expended. Accordingly, this work will be considered 20 boilerplate and the requested fees will be reduced. For example, Plaintiff’s Motion for 21 Summary Judgment is nearly identical in all substantive regards to prior summary 22 judgment motions filed by Plaintiff’s Counsel. Compare Doc. 37-3 with e.g., Innovative 23 Sports Management, Inc. v. Singh, 2:18-cv-18-02211-PHX-MTL, Plaintiff’s Brief in 24 Support of Motion for Summary Judgment, Doc. 35-3 (D. Ariz. Nov. 1, 2019). The 25 research attorney’s requested fees have been reduced in the past for this practice. See, e.g., 26 Patel, 2018 WL 1609731, at *7. This time entry will be reduced from 8.0 hours to 2.0 27 hours. Plaintiff’s Motion for Attorneys’ Fees and Costs is also boilerplate and the research 28 attorney’s entry of 1.5 hours will be reduced to 0.75 hours. The 6.0 hours billed for review 1 of discovery and disclosures and updating research “re: devices and internet” and the 3.0 2 hours billed for research “re: recent Internet Decisions” will each be reduced by half, as 3 these entries do not identify the pleading, paper, or other purpose necessitating the research. 4 C. Lodestar Determination 5 After eliminating clerical, duplicative, unsupported, and excessive charges, the 6 Court finds that the reasonable fee award in this case to be $5,652.50. This amount 7 corresponds to following lodestar figure calculation: 8 Thomas P. Riley (4.9 x 350) = $1,715.00 9 Research Attorney (26.25 x 150) = $3,937.50 10 TOTAL = $5,652.50 11 While the Court reserves the right to adjust the lodestar figure upwards or 12 downwards based upon a variety of factors, see, e.g., Gonzalez, 729 F.3d at 1202, it 13 declines to do so here. This fee award is reasonable in proportion to the $17,500 in damages 14 awarded to Plaintiff under its 47 U.S.C. § 605 claim. 15 D. Nontaxable Cost 16 In addition to an attorneys’ fee award, Plaintiff also seeks an award of nontaxable 17 costs for investigative expenses in the amount of $665.00 pursuant 18 to 47 U.S.C. § 605(e)(3)(B)(iii). (Doc. 46). To recover nontaxable investigator costs, the 19 requesting party has the burden to show “(1) the amount of time necessary for the 20 investigation; (2) how much the investigators charged per hour; and (3) why the 21 investigators are qualified to demand the requested rate.” Espinoza, 2020 WL 1703630, at 22 *4. The only evidence Plaintiff offers is a declaration statement that in Plaintiff’s Counsel’s 23 opinion, “the fee for the auditor’s investigation in this case is a reasonable fee.” (Riley 24 Decl. ⁋ 15). Plaintiff has clearly not met the burden required to recover nontaxable costs. 25 The Court declines Plaintiff’s request to recover nontaxable investigator costs. 26 / 27 / 28 / I. CONCLUSION 2 Accordingly, 3 IT IS ORDERED that Plaintiff's Motion for Award of Costs and Attorneys’ Fees 4|| (Doc. 46) is GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded 5 || $5,652.50 in attorneys’ fees and the motion is denied in all other respects. 6 Dated this Ist day of July, 2020. 7 Wichal T. Hburde Michael T. Liburdi 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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