(PS) J & J Sports Productions, Inc. v. Estrada Alvarez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J & J SPORTS PRODUCTIONS, INC., No. 2:17-cv-00926-TLN-AC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ALIDA ESTRADA ALVAREZ, 15 Defendant. 16 17 This matter is before the court on plaintiff’s motion for an award of costs and attorneys’ 18 fees following entry of default judgment in its favor. ECF No. 44. Defendant appeared in this 19 case in pro se. The motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(21). 20 The motion was filed on May 22, 2020 and was heard on the papers. Defendant did not file an 21 opposition. For the reasons set forth below, the undersigned recommends the motion be 22 GRANTED, though in a reduced amount. 23 I. Relevant Background 24 This case is about the unlawful broadcast of plaintiff’s May 7, 2016 television Program, 25 Saul Alvarez v. Amir Khan WBC World Middleweight Championship Fight Program (the 26 “Program.”). ECF No. 1. On April 2, 2020, the undersigned issued Findings and 27 Recommendations which recommended plaintiff be awarded statutory damages under 47 U.S.C. 28 § 605 and damages for the tort of conversion. ECF No. 41 at 5. The court indicated that plaintiff 1 should have 14 days from the entry of judgment in this case to submit a motion for costs and 2 attorneys’ fees. Id. The findings and recommendations were adopted in full and judgment was 3 entered on May 12, 2020. ECF Nos. 42, 43. The instant motion for attorneys’ fees and costs was 4 timely filed on May 22, 2020. ECF No. 44. The motion is unopposed. 5 II. Motion 6 Plaintiff’s motion is made on the grounds that defendant has been found liable to plaintiff 7 under 47 U.S.C. § 605, and therefore plaintiff is entitled to attorneys’ fees and costs. ECF No. 44 8 at 3. Plaintiff requests that the court order defendant to pay costs in the amount of $2,518.56 and 9 attorneys’ fees in the amount of $10,827.80. Id. at 7. 10 III. Analysis 11 A. Recoverable Attorneys’ Fees 12 Reasonable attorneys’ fees and costs are directed recoverable by statute in 47 U.S.C. § 13 605(e)(3)(B)(iii). Still, fees must be “reasonable,” and the court determines the amount of 14 reasonable attorneys’ fees by applying the “lodestar” method. Ferland v. Conrad Credit Corp., 15 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). The lodestar method calculates fees by multiplying the 16 number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly 17 rate. Id. “In determining reasonable hours, counsel bears the burden of submitting detailed time 18 records justifying the hours claimed to have been expended.” Chalmers v. City of Los Angeles, 19 796 F.2d 1205, 1210 (9th Cir. 1986), opinion amended on denial of reh’g, 808 F.2d 1373 (9th Cir. 20 1987). “Where the documentation of hours is inadequate, the district court may reduce the award 21 accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A district court should also 22 subtract from the lodestar fee calculation any hours that were not “reasonably expended,” because 23 they were excessive, redundant, or otherwise unnecessary. See id. at 434; see also J & J Sports 24 Prods., Inc. v. Napuri, No. C 10-04171 SBA, 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013). 25 To determine what numbers to use to arrive at a “reasonable” fee under the lodestar 26 method, Local Rule 293 requires a party seeking an award of attorney’s fees to submit an 27 affidavit addressing certain criteria that the court will consider. Plaintiff has submitted an 28 affidavit stating that counsel’s billable rate is $550 per hour (8.70 hours = $4,785), administrative 1 assistant time is billed at $110 per hour (19.48 hours = $2,142.80), and research attorney time is 2 billed at $300 per hour (13.00 hours = $3,900). A district court must determine a reasonable rate 3 for the services provided by examining the prevailing rates in the community, charged by 4 “lawyers of reasonably comparable skill, experience, and reputation.” Sanchez v. Frito-Lay, Inc., 5 No. 1:14-CV-00797 AWI, 2015 WL 4662636, at *17 (E.D. Cal. Aug. 5, 2015), report and 6 recommendation adopted, No. 1:14-CV-797 AWI MJS, 2015 WL 5138101 (E.D. Cal. Aug. 26, 7 2015) (quoting Cotton v. City of Eureka, Cal., 889 F. Supp. 2d 1154, 1167 (N.D. Cal. 2012)). 8 “The ‘relevant community’ for the purposes of determining the reasonable hourly rate is the 9 district in which the lawsuit proceeds.” Sanchez, 2015 WL 4662636, *17 (quoting Barjon v. 10 Dalton, 132 F.3d 496, 500 (9th Cir. 1997)); accord Gonzalez v. City of Maywood, 729 F.3d 1196, 11 1205 (9th Cir. 2013). 12 Recent orders of this court provide guidance in determining the appropriate rate for this 13 case. In May of 2018, District Judge Anthony W. Ishii of the Fresno Division of this court found 14 that for cases such as this one, “[a] reasonable rate for an attorney of Mr. Riley’s experience 15 remains $350.00 per hour. A reasonable rate for an unidentified research attorney remains 16 $150.00 per hour.” J&J Sports Prods., Inc. v. Marini, No. 1:16-CV-0477-AWI-JLT, 2018 WL 17 2155710, at *2 (E.D. Cal. May 10, 2018) (internal citations omitted). Although that finding was 18 made for the Fresno Division, the undersigned finds no reason to deviate for the Sacramento 19 division. Judge Ishii also noted that “[t]his Court (and other courts) has cautioned Mr. Riley 20 regarding billing of clerical work using administrative assistants, lack of specificity in such 21 billing by administrative assistants, and duplicative billing by Mr. Riley and his administrative 22 assistant in the past.” Id. 23 Here, the time billed by the unidentified administrative assistant is duplicative and strictly 24 administrative, and cannot reasonably be charged against the plaintiff. Further, many of hours 25 claimed by Mr. Riley are unreasonable, duplicative, or inadequately documented and must be 26 reduced. As was the case in the matter addrsesed by Judge Ishii, Mr. Riley’s bill in this case 27 reflects considerable amount of time reviewing communications to and from the court, primarily 28 in “.10” time increments. ECF No. 44-1 at 6-15. Such an entry indicates that Mr. Riley spent 1 anywhere between one second and six minutes reviewing an item. While the undersigned 2 understands that this “rounding up” is how attorney timekeeping is done, it is troubling when 3 there are well over 100 such entries (between all billers) on an invoice. Indeed, only 2 hours of 4 Mr. Riley’s total claimed 8.70 hours constitutes an entry of over “.10.” Such a billing practice 5 represents an inefficient use of time, at best. The court concludes that Mr. Riley could have 6 reasonably spent 4 hours, in total, on these minor review entries, and finds an award of 6 hours at 7 the rate of $350/hour ($2,100) appropriate. The unnamed research attorney will be awarded 13 8 hours at the rate of $150.00/hour ($1,950). This equates to a reduced total award of $4,050. 9 B. Recoverable Costs 10 Plaintiff has also requested an award of costs in the amount of $2,418.56 for: investigative 11 expenditures dated before this suit was filed ($1,925), courier charges ($53.08), filing fees 12 ($400.00), service of process fees ($50.00), and photocopy charges ($90.48). ECF No. 44-1 at 13 15. Recovery of costs is available under 47 U.S.C. § 605(e)(3)(B)(iii). In support of the claimed 14 costs, Plaintiff has submitted two invoices from its investigator in the amount of $650.00 each, 15 another in the amount of $624, ECF No. 44-1 at 18-20, as well as one statement from its process 16 server in the amount of $50.00, id. at 22. Plaintiff paid a $400.00 filing fee to initiate this action. 17 ECF No. 1. Only those costs are appropriately documented. Plaintiff will not be awarded costs 18 for courier charges or photocopying expenses because no documentation is provided. 19 Plaintiff relies largely on district court authority from outside of this Circuit for the 20 proposition that pre-suit investigative fees are recoverable, and acknowledges a split on the issue. 21 ECF No. 44 at 6-7. Courts in this Circuit routinely decline to award such costs. J & J Sports 22 Prods., Inc. v. Barajas, No. 1:15-cv-01354 DAD JTL, 2016 WL 2930549, at *3 (E.D. Cal. May 23 19, 2016) (collecting cases); but see Pagliaro, 2014 WL 7140605 at * 2 (granting investigative 24 costs without expressly identifying them in its order or discussing their propriety). The 25 undersigned does not find that directing the payment of pre-suit investigative costs is warranted 26 here, particularly as they seem excessive (the need for three separate investigative visits is not 27 explained), and will accordingly decline to award them. Thus, only filing fees and process server 28 //// wOAOe StI OMYE YOU PRIN ENN MMIC IO Vee OY VI 1 || costs are appropriately recovered expenses and will be awarded, and costs shall issue in the 2 || amount of $450.00. 3 IV. Conclusion 4 For the reasons set forth above, it is HEREBY RECOMMENDED THAT: 5 1. Plaintiff's May 22, 2020 motion for Fees and Costs (ECF No. 44) be granted; 6 2. The court award attorneys’ fees to plaintiff in the amount of $4,050.00 and costs in the 7 || amount of $450.00. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 10 | after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 12 | document should be captioned “Objections to Magistrate Judge’s Findings and 13 || Recommendations.” Any response to the objections shall be filed with the court and served on all 14 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 15 || objections within the specified time may waive the right to appeal the District Court’s order. 16 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998), as amended on denial of reh'g (Nov. 24, 17 | 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 18 || DATED: June 25, 2020 . 19 Attten— Lhar—e- 20 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28