Gracie v. Semaphore Entertainment Group

52 F. App'x 43

Opinions

MEMORANDUM

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After we determined in a prior opinion in this case that the district court did not abuse its discretion by awarding attorney’s fees to Defendants for prevailing on their Triangle Design logo trademark claim, we remanded “to permit the district court to make more detailed findings relating to the total amount and reasonableness of the fees awarded, according to the principles set forth in th[at] opinion.” Gracie v. Gracie, 217 F.3d 1060, 1072 (9th Cir.2000). On remand, the district court awarded Defendants $558,214.59 in attorney’s fees and costs. We reverse and remand for further proceedings.

First, the district court did not explain its decisions on apportionment between Lanham and non-Lanham Act claims and between claims on which Defendants prevailed and those on which they did not. In our prior opinion, we directed the district court either to “attempt an apportionment or to make findings that apportionment would be impossible.” Id. at 1070. In determining that apportionment between Lanham and nonLanham Acts claims was impossible, the district court should have considered each non-Lanham Act claim and determined whether the factual and legal bases were substantially identical to the Lanham Act claims such that apportionment between these claims would be impossible. For example, it is unclear how Plaintiffs’ claim for interference with prospective business relationship overlaps factually or legally with the Lanham Act claims.

The district court also did not provide any reason for the 10 percent fee reduction to account for fees expended on claims on which Defendants did not prevail. Although an across-the-board fee reduction does not alone constitute an abuse of discretion, see Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir.1993), a district court must provide some explanation for the chosen percentage reduction. Cf. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1150 (9th Cir.2001) (per curiam) (addressing an across-the-board fee reduction to account for excessive hours and suggesting that, at a minimum, the district court should review a sample of the time records to demonstrate how it arrived at its fee reduction).

Second, the district court erred in its calculation of the lodestar amount. In determining the total amount of fees, the district court relied only on the hourly rates of the attorneys and paralegals who worked on the case. The court should have required Defendants to produce “satisfactory evidence, in addition to the affidavits of [their] counsel, that the requested rates [we]re in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir.1987).

The district court also failed to discuss any of the Kerr factors in determining whether to adjust the lodestar amount. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975). Although a district court is not required to analyze every Kerr factor, “the need for meaningful review requires remand where, as here, the record on appeal fails to indicate which, if any, of the Kerr guidelines were considered.” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 838-39 (9th Cir.1982). The district court should have addressed, at a minimum, the “extent of success” factor. See McGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 810 (9th Cir.1995) (holding that an attorney’s fee award must be “reasonable in relation to the success achieved” (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983))). Defendants apparently sought $1.3 million at trial but were awarded only $108,000. In our prior opinion, we noted that the fee award was a “substantial one, almost six times the size of the damages awarded to [Defendants].” Grade, 217 F.3d at 1069.

Third, although the district court was not required to expressly rule on each one of Plaintiffs’ objections to Defendants’ fee request, McGrath v. County of Nev., 67 F.3d 248, 255 (9th Cir.1995), Plaintiffs raised serious questions about several issues that the district court should have addressed, including (1) whether there was duplication of work, see Hensley, 461 U.S. at 434 (“Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary ....”); cf. McGrath, 67 F.3d at 255 (“[T]he participation of more than one attorney does not necessarily constitute an unnecessary duplication of effort.” (internal quotation marks omitted)); (2) whether some of the invoices included fees that were not charged to the client, see Hensley, 461 U.S. at 434 (holding that fees are not recoverable for work for which the client could not be charged); and (3) whether the use of block-billing and overly generalized descriptions of tasks performed requires a reduction in the fee award.

Finally, the district court abused its discretion when it failed to determine whether the $39,206.93 in expenses was reasonable. See United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.1990) (explaining that reasonable expenses are permitted as part of a fee award).

REVERSED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.