1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 INNOVATIVE SPORTS Case No.: 20-CV-2229 JLS (AHG) MANAGEMENT, INC., d/b/a 12 INTEGRATED SPORTS MEDIA, ORDER GRANTING IN PART 13 PLAINTIFF’S MOTION FOR Plaintiff, ATTORNEYS’ FEES AND COSTS 14 v. 15 (ECF No. 10) JAVIER RODRIGUEZ, individually and 16 d/b/a ANTOJITOS COLOMIANOS, 17 Defendant. 18
19 Presently before the Court is Plaintiff Innovative Sports Management, Inc., d/b/a 20 Integrated Sports Media’s (“Plaintiff”) Motion for Attorneys’ Fees and Costs (“Mot.,” ECF 21 No. 10). The Court took the Motion under submission without oral argument pursuant to 22 Civil Local Rule 7.1(d)(1). See ECF No. 11. After reviewing Plaintiff’s Motion and 23 supporting evidence and the relevant law, the Court GRANTS IN PART Plaintiff’s 24 Motion, as follows. 25 BACKGROUND 26 On October 27, 2021, the Court granted Plaintiff’s motion for default judgment and 27 granted Plaintiff fourteen days in which to file a motion for attorneys’ fees and costs. See 28 generally ECF No. 8 (the “Order”). The Court incorporates by reference the background 1 as set forth in the Order. See id. at 1–3. On November 10, 2021, Plaintiff timely filed the 2 instant Motion. See Mot. 3 LEGAL STANDARD 4 “Any person aggrieved by any violation of [the Communications Act of 1934] may 5 bring a civil action in a United States district court.” 47 U.S.C. § 605(e)(3)(A). “The court 6 . . . shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to 7 an aggrieved party who prevails.” Id. § 605(e)(3)(B)(iii). 8 The Court calculates a reasonable fee award using a two-step process. See Fischer 9 v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). “First, the court must calculate the 10 ‘lodestar figure’ by taking the number of hours reasonably expended on the litigation and 11 multiplying it by a reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 12 433 (1983)). “Second, the court must decide whether to enhance or reduce the lodestar 13 figure based on an evaluation of the Kerr [v. Screen Extras Guild, Inc., 526 F.2d 67 (9th 14 Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 15 (1992),] factors that are not already subsumed in the initial lodestar calculation.” Fischer, 16 214 F.3d at 1119 (citing Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th 17 Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996)). 18 ANALYSIS 19 Given that the Court previously granted default judgment in Plaintiff’s favor on its 20 Communications Act claim, see Order at 7, Plaintiff is “an aggrieved party who prevails” 21 and is accordingly entitled to fees and costs. See G & G Closed Cir. Events, LLC v. 22 Hernandez, No. 20-CV-2112-MMA (RBB), 2021 WL 3290422, at *2 (S.D. Cal. Aug. 2, 23 2021). Nonetheless, the Court must assess the reasonableness of the fees requested. 24 I. Attorneys’ Fees 25 Plaintiff seeks attorneys’ fees in the amount of $3,078.50. See Mot. at 7. Three 26 timekeepers—an attorney, a research attorney, and an administrative assistant—worked on 27 this matter. Decl. of Plaintiff’s Counsel Regarding Attorneys’ Fees and Costs (“Riley 28 Decl.,” ECF No. 10-1) ¶ 5. Mr. Thomas P. Riley, the principal of his firm, worked 1.8 1 hours at the rate of $550 per hour. Id. Ex. 1 (“Time Records”) at 2. A research attorney 2 worked 5.0 hours at the rate of $300 per hour. Id. Finally, an administrative assistant 3 worked 5.35 hours at the rate of $110 per hour. Id. The time records are not 4 contemporaneous, but rather “are reconstructed by way of a thorough review of the files 5 themselves.” Id. ¶ 7. 6 “‘The lodestar determination has emerged as the predominate element of the 7 analysis’ in determining a reasonable attorney’s fee award.” Morales, 96 F.3d at 363 8 (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987)). “The ‘lodestar’ 9 is calculated by multiplying the number of hours the prevailing party reasonably expended 10 on the litigation by a reasonable hourly rate.” Id. (citing McGrath v. Cty. of Nevada, 67 11 F.3d 248, 252 (9th Cir. 1995)). 12 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition 13 to the attorney’s own affidavits—that the requested rates are in line with those prevailing 14 in the community for similar services by lawyers of reasonably comparable skill, 15 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 16 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). “[T]he relevant 17 community is the forum in which the district court sits.” Id. (citing Barjon v. Dalton, 132 18 F.2d 496, 500 (9th Cir. 1997)). “[A]ffidavits of the plaintiffs’ attorney[s] and other 19 attorneys regarding prevailing fees in the community, and rate determinations in other 20 cases . . . are satisfactory evidence of the prevailing market rate.” Id. at 980 (second and 21 third alterations in original) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 22 896 F.2d 403, 407 (9th Cir. 1990)). The Court may also consider cases setting reasonable 23 rates during the time period in which the fees in the present action were incurred, see 24 Camacho, 523 F.3d 973, 981 (9th Cir. 2008) (citing Bell v. Clackamas Cty., 341 F.3d 858, 25 869 (9th Cir. 2003)), which—in this case—is between 2019 and 2021. See Bell, 341 F.3d 26 at 869 (holding that district court abused its discretion in applying “market rates in effect 27 more than two years before the work was performed”) (emphasis in original). “Once the 28 fee applicant has proffered such evidence, the opposing party must produce its own 1 affidavits or other evidence to rebut the proposed rate.” Cortes v. Metro Life Ins. Co., 380 2 F. Supp. 2d 1125, 1129 (C.D. Cal. 2005) (citing Phelps Dodge Corp., 896 F.2d at 407). 3 In addition, “[t]he party seeking an award of fees should submit evidence supporting 4 the hours worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . 5 hours that were not ‘reasonably expended’” and “hours that are excessive, redundant, or 6 otherwise unnecessary.” Id. “[T]he [opposing party] bears the burden of providing specific 7 evidence to challenge the accuracy and reasonableness of the hours charged.” McGrath, 8 67 F.3d at 255 (citing Blum, 465 U.S. at 892 n.5; Gates v. Gomez, 60 F.3d 525, 534–35 9 (9th Cir. 1995)). “Overlitigation deemed excessive does not count towards the reasonable 10 time component of a lodestar calculation,” Puccio v. Love, No. 16-CV-02890 W (BGS), 11 2020 WL 434481, at *6 (S.D. Cal. Jan. 28, 2020) (citing Tomovich v. Wolpoff & Abramson, 12 LLP, No. 08cv1428-JM (BLM), 2009 WL 2447710, at *4–5 (S.D. Cal. Aug.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 INNOVATIVE SPORTS Case No.: 20-CV-2229 JLS (AHG) MANAGEMENT, INC., d/b/a 12 INTEGRATED SPORTS MEDIA, ORDER GRANTING IN PART 13 PLAINTIFF’S MOTION FOR Plaintiff, ATTORNEYS’ FEES AND COSTS 14 v. 15 (ECF No. 10) JAVIER RODRIGUEZ, individually and 16 d/b/a ANTOJITOS COLOMIANOS, 17 Defendant. 18
19 Presently before the Court is Plaintiff Innovative Sports Management, Inc., d/b/a 20 Integrated Sports Media’s (“Plaintiff”) Motion for Attorneys’ Fees and Costs (“Mot.,” ECF 21 No. 10). The Court took the Motion under submission without oral argument pursuant to 22 Civil Local Rule 7.1(d)(1). See ECF No. 11. After reviewing Plaintiff’s Motion and 23 supporting evidence and the relevant law, the Court GRANTS IN PART Plaintiff’s 24 Motion, as follows. 25 BACKGROUND 26 On October 27, 2021, the Court granted Plaintiff’s motion for default judgment and 27 granted Plaintiff fourteen days in which to file a motion for attorneys’ fees and costs. See 28 generally ECF No. 8 (the “Order”). The Court incorporates by reference the background 1 as set forth in the Order. See id. at 1–3. On November 10, 2021, Plaintiff timely filed the 2 instant Motion. See Mot. 3 LEGAL STANDARD 4 “Any person aggrieved by any violation of [the Communications Act of 1934] may 5 bring a civil action in a United States district court.” 47 U.S.C. § 605(e)(3)(A). “The court 6 . . . shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to 7 an aggrieved party who prevails.” Id. § 605(e)(3)(B)(iii). 8 The Court calculates a reasonable fee award using a two-step process. See Fischer 9 v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). “First, the court must calculate the 10 ‘lodestar figure’ by taking the number of hours reasonably expended on the litigation and 11 multiplying it by a reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 12 433 (1983)). “Second, the court must decide whether to enhance or reduce the lodestar 13 figure based on an evaluation of the Kerr [v. Screen Extras Guild, Inc., 526 F.2d 67 (9th 14 Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 15 (1992),] factors that are not already subsumed in the initial lodestar calculation.” Fischer, 16 214 F.3d at 1119 (citing Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th 17 Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996)). 18 ANALYSIS 19 Given that the Court previously granted default judgment in Plaintiff’s favor on its 20 Communications Act claim, see Order at 7, Plaintiff is “an aggrieved party who prevails” 21 and is accordingly entitled to fees and costs. See G & G Closed Cir. Events, LLC v. 22 Hernandez, No. 20-CV-2112-MMA (RBB), 2021 WL 3290422, at *2 (S.D. Cal. Aug. 2, 23 2021). Nonetheless, the Court must assess the reasonableness of the fees requested. 24 I. Attorneys’ Fees 25 Plaintiff seeks attorneys’ fees in the amount of $3,078.50. See Mot. at 7. Three 26 timekeepers—an attorney, a research attorney, and an administrative assistant—worked on 27 this matter. Decl. of Plaintiff’s Counsel Regarding Attorneys’ Fees and Costs (“Riley 28 Decl.,” ECF No. 10-1) ¶ 5. Mr. Thomas P. Riley, the principal of his firm, worked 1.8 1 hours at the rate of $550 per hour. Id. Ex. 1 (“Time Records”) at 2. A research attorney 2 worked 5.0 hours at the rate of $300 per hour. Id. Finally, an administrative assistant 3 worked 5.35 hours at the rate of $110 per hour. Id. The time records are not 4 contemporaneous, but rather “are reconstructed by way of a thorough review of the files 5 themselves.” Id. ¶ 7. 6 “‘The lodestar determination has emerged as the predominate element of the 7 analysis’ in determining a reasonable attorney’s fee award.” Morales, 96 F.3d at 363 8 (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987)). “The ‘lodestar’ 9 is calculated by multiplying the number of hours the prevailing party reasonably expended 10 on the litigation by a reasonable hourly rate.” Id. (citing McGrath v. Cty. of Nevada, 67 11 F.3d 248, 252 (9th Cir. 1995)). 12 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition 13 to the attorney’s own affidavits—that the requested rates are in line with those prevailing 14 in the community for similar services by lawyers of reasonably comparable skill, 15 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 16 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). “[T]he relevant 17 community is the forum in which the district court sits.” Id. (citing Barjon v. Dalton, 132 18 F.2d 496, 500 (9th Cir. 1997)). “[A]ffidavits of the plaintiffs’ attorney[s] and other 19 attorneys regarding prevailing fees in the community, and rate determinations in other 20 cases . . . are satisfactory evidence of the prevailing market rate.” Id. at 980 (second and 21 third alterations in original) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 22 896 F.2d 403, 407 (9th Cir. 1990)). The Court may also consider cases setting reasonable 23 rates during the time period in which the fees in the present action were incurred, see 24 Camacho, 523 F.3d 973, 981 (9th Cir. 2008) (citing Bell v. Clackamas Cty., 341 F.3d 858, 25 869 (9th Cir. 2003)), which—in this case—is between 2019 and 2021. See Bell, 341 F.3d 26 at 869 (holding that district court abused its discretion in applying “market rates in effect 27 more than two years before the work was performed”) (emphasis in original). “Once the 28 fee applicant has proffered such evidence, the opposing party must produce its own 1 affidavits or other evidence to rebut the proposed rate.” Cortes v. Metro Life Ins. Co., 380 2 F. Supp. 2d 1125, 1129 (C.D. Cal. 2005) (citing Phelps Dodge Corp., 896 F.2d at 407). 3 In addition, “[t]he party seeking an award of fees should submit evidence supporting 4 the hours worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . 5 hours that were not ‘reasonably expended’” and “hours that are excessive, redundant, or 6 otherwise unnecessary.” Id. “[T]he [opposing party] bears the burden of providing specific 7 evidence to challenge the accuracy and reasonableness of the hours charged.” McGrath, 8 67 F.3d at 255 (citing Blum, 465 U.S. at 892 n.5; Gates v. Gomez, 60 F.3d 525, 534–35 9 (9th Cir. 1995)). “Overlitigation deemed excessive does not count towards the reasonable 10 time component of a lodestar calculation,” Puccio v. Love, No. 16-CV-02890 W (BGS), 11 2020 WL 434481, at *6 (S.D. Cal. Jan. 28, 2020) (citing Tomovich v. Wolpoff & Abramson, 12 LLP, No. 08cv1428-JM (BLM), 2009 WL 2447710, at *4–5 (S.D. Cal. Aug. 7, 2009)), 13 although the Ninth Circuit has also instructed that, “[b]y and large, the court should defer 14 to the winning lawyer’s professional judgment as to how much time he was required to 15 spend on the case; after all, he won, and might not have, had he been more of a slacker.” 16 Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). 17 “[I]n appropriate cases, the district court may adjust the ‘presumptively reasonable’ 18 lodestar figure based upon the factors listed in Kerr.” Intel Corp. v. Terabyte Int’l, Inc., 6 19 F.3d 614, 622 (9th Cir. 1993) (citing D’Emmanuele v. Montgomery Ward & Co., 904 F.2d 20 1379, 1383 (9th Cir. 1990), overruled on other grounds by Dague, 505 U.S. 557). The 21 Kerr factors are: 22 (1) the time and labor required[;] (2) the novelty and difficulty of the questions involved[;] (3) the skill requisite to perform the 23 legal service properly[;] (4) the preclusion of other employment 24 by the attorney due to acceptance of the case[;] (5) the customary fee[;] (6) whether the fee is fixed or contingent[;] (7) time 25 limitations imposed by the client or the circumstances[;] (8) the 26 amount involved and the results obtained[;] (9) the experience, reputation, and ability of the attorneys[;] (10) the ‘undesirability’ 27 of the case[;] (11) the nature and length of the professional 28 relationship with the client[;] and (12) awards in similar cases. 1 526 F.2d at 70. “The lodestar amount presumably reflects the novelty and complexity of 2 the issues, the special skill and experience of counsel, the quality of representation, and the 3 results obtained from the litigation.” Intel Corp., 6 F.3d at 622 (citing D’Emanuele, 904 4 F.3d at 1383). While the court may rely on any of these factors to increase or decrease the 5 lodestar figure, there is a “‘strong presumption’ that the lodestar is the reasonable fee.” 6 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting City of Burlington, 505 7 U.S. at 562); accord Harman v. City & Cty. of San Francisco, 158 Cal. App. 4th 407, 416 8 (2007). 9 Plaintiff’s counsel provides the Court with two prior orders from within this District 10 approving similar hourly rates for him and his staff in similar, recent matters. See Riley 11 Decl. Ex. 4 (approving same fees); id. Ex. 6 (approving $500 for Mr. Riley, $300 for his 12 research associate, and $100 for an administrative assistant). Based on the Court’s own 13 experience and Mr. Riley’s statements concerning the qualifications of the research 14 attorney and himself, see Riley Decl. ¶ 3, the Court finds that these fees are reflective, if 15 toward the high end, of the prevailing market rates in the relevant community. 16 Next, Plaintiff’s counsel seeks reimbursement for 6.8 hours of lawyer time and 5.35 17 hours of paralegal time. See Time Records. The Court notes that these are reconstructed 18 rather than contemporaneous time records, see Riley Decl. ¶ 7, and that Plaintiff’s counsel 19 has previously been advised that, “[a]bsent the submission of detailed contemporaneous 20 time records justifying the hours claimed to have been expended on this case, the [c]ourt 21 gives little weight to the figures provided by [p]laintiff.” J & J Sports Prods., Inc. v. 22 Barajas, No. 115CV01354DADJLT, 2017 WL 469343, at *3 (E.D. Cal. Feb. 2, 2017) 23 (citation and internal quotation marks omitted); see also G&G Closed Cir. Events, LLC v. 24 Flores, No. 3:20-CV-0802-BEN-RBB, 2021 WL 2580517, at *2 (S.D. Cal. June 23, 2021) 25 (reducing Plaintiff’s counsel’s lodestar by 25% due to lack of contemporaneous billing 26 records). The Court further notes that many of the estimated hours and tasks for both the 27 administrative assistant and Mr. Riley are duplicative (e.g., 0.25 hours for both the 28 administrative assistant and Mr. Riley for initial file review (and preparation) on November 1 25, 2019; and 0.1 hours for both the administrative assistant and Mr. Riley for review (and 2 filing) of the summons on November 16, 2020). See Time Records. Finally, the Court 3 notes that the filings in this case appear to be form filings submitted with little to no 4 modification from prior cases. Compare, e.g., Motion, with ECF No. 10, G & G Closed 5 Circuit Events, LLC v. Zarazua, 20-CV-988 DMS (MDD) (filed Apr. 9, 2021) (virtually 6 identical fees motion and supporting declaration); ECF No. 6 (Motion for Default 7 Judgment), with ECF No. 6, G & G Closed Circuit Events, LLC v. Zarazua, 20-CV-988 8 DMS (MDD) (filed Jan. 8, 2021) (virtually identical motion for default judgment). 9 Combined, the Court finds that the above factors render the hours requested 10 unreasonable. To remedy this, the Court approves only the lower-billing timekeeper’s time 11 entry for duplicative records (i.e., the administrative assistant rather than Mr. Riley). 12 Further, the Court will reduce by 20% the remaining time to account for potential 13 overbilling as a result of both reconstructed as opposed to contemporaneous records and 14 the use of form filings. Accordingly, the Court calculates the adjusted lodestar as follows: 15 Timekeeper Hours Approved × 20% Reduction Hourly Rate Subtotal 16 TPR 0.70 0.56 $550.00 $308.00 17 RSA 5.00 4.00 $300.00 $1,200.00 18 AA 5.35 4.28 $110.00 $470.80 19 Total $1,978.80 20 21 II. Costs 22 Plaintiff’s counsel also seeks costs in the amount of $1,755.00, comprising $400.00 23 in filing fees, $80.00 for service of process fees, and $1,275.00 in investigative expenses 24 ($625.00 for Innovative Investigations on December 30, 2019, and $650.00 for Lighthouse 25 Investigative Services Inc. on December 31, 2019). See Time Records at 3. Plaintiff’s 26 counsel includes invoices for the two investigator payments, see Riley Decl. Ex. 2, but 27 provides no details concerning the qualifications of the investigative firms or why the 28 services of two such entities were required and what each did. 1 As noted above, the Communications Act provides for “the recovery of full 2 ||costs to an aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B)(ili). However, 3 ||“[m]ost courts in this circuit decline to award costs for pre-filing investigative fees under 4 605.” G & G Closed Cir. Events, LLC v. Parker, No. 320CV00801BENRBB, 2021 WL 5 || 164998, at *8 (S.D. Cal. Jan. 19, 2021) (citation and internal quotation marks omitted). 6 Even were that not the case, Plaintiff's counsel has previously been denied investigative 7 ||costs by other courts within the Ninth Circuit for failing to adequately document 8 investigative expenses. See, e.g., Barajas, 2017 WL 469343, at *5 (denying investigative 9 || cost request where Plaintiff's counsel provided an invoice only with no further supporting 10 documentation); Joe Hand Promotions, Inc. v. Albright, No. CIV. 2:11-2260 WBS, 2013 11 || WL 4094403, at *6 (E.D. Cal. Aug. 13, 2013) (same); Parker, 2021 WL 164998, at *8 12 |/(same). 13 Given that Plaintiff's counsel has provided only bare invoices to document the 14 investigative costs sought, the Court finds those costs inadequately supported and denies 15 ||them here. The Court will, however, award Plaintiff's counsel costs in the amount of 16 $480.00 for filing and service of process fees. 17 CONCLUSION 18 For the reasons stated above, the Court GRANTS IN PART Plaintiff's Motion 19 ||(ECF No. 10). The Court AWARDS Plaintiff $1,978.80 in attorneys’ fees and $480.00 in 20 || costs for a total adjusted award of $2,458.80. As this concludes the litigation in this matter, 21 ||the Clerk of the Court SHALL CLOSE the file. 22 IT IS SO ORDERED. 23 Dated: February 7, 2022 (een 24 on. Janis L. Sammartino 35 United States District Judge 26 27 28