International Petroleum Products and Additives Company, Inc. v. Black Gold S.A.R.L. ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 INTERNATIONAL PETROLEUM PRODUCTS CASE NO. 19-cv-03004-YGR AND ADDITIVES COMPANY, INC., 7 Plaintiff, ORDER GRANTING IN PART AND DENYING 8 IN PART MOTION FOR ATTORNEYS’ FEES vs. AND COSTS 9 BLACK GOLD S.A.R.L., Re: Dkt. Nos. 43, 44 10 Defendant. 11 12 On May 7, 2018, petitioner International Petroleum Products and Additives Company, Inc. 13 (“IPAC”) filed an arbitration demand before the American Arbitration Association (“AAA”), 14 claiming that respondent Black Gold, S.A.R.L. (“Black Gold”) and its chief executive officer had 15 breached agreements that were intended to govern Black Gold’s role as a sales representative and 16 distributor for IPAC. Following briefing and an arbitration hearing, the arbitrator issued an award 17 in favor of IPAC and ordered Black Gold to pay $1,094,193.58, comprised of $687,702.56 in 18 damages, $305,138.65 in fees and costs, and $101,352.37 in AAA fees and costs. 19 Thereafter, IPAC filed a motion in this Court, seeking to confirm the arbitration award. 20 Black Gold filed an opposition and countermotion requesting that the Court vacate, or in the 21 alternative, modify and/or correct the arbitration award. The motions were fully briefed. On 22 November 8, 2019, the Court issued an order granting IPAC’s motion and denying Black Gold’s 23 countermotion. Thereafter, the Court entered a judgment. 24 Now before the Court is IPAC’s motion for attorneys’ fees and costs for activities post- 25 dating the arbitration award. Having considered the motion, the opposition thereto, and the record 26 in this action, and for the reasons stated herein, the motion is GRANTED IN PART AND DENIED IN 27 PART. The Court shall award IPAC $50,626.00 in attorneys’ fees and $21,651.62 in costs, subject 1 I. DISCUSSION 2 In its motion, IPAC seeks an award of $53,720 in attorneys’ fees incurred preparing the 3 petition, motion to confirm the arbitration award, and opposition to Black Gold’s motion to vacate 4 that award; $8,500 in attorneys’ fees incurred in connection with this motion for fees and costs; 5 and $32,999.78 in total costs incurred post-arbitration. The Court addresses each. 6 A. Attorneys’ Fees1 7 The Court applies California’s lodestar method to calculate the appropriate attorneys’ fees 8 to be awarded in this case. See Meister v. Regents of Univ. of California, 67 Cal. App. 4th 437, 9 448–49 (1998) (“the California Supreme Court intended its lodestar method to apply to a statutory 10 attorney’s fee award unless the statutory authorization for the award provided for another method 11 of calculation”); Lealao v. Beneficial California, Inc., 82 Cal.App.4th 19, 26 (2000) (“the primary 12 method for establishing the amount of ‘reasonable’ attorney fees [in fee-shifting cases] is the 13 lodestar method”). Under the lodestar method, the Court “begins with the multiplication of the 14 number of hours reasonably expended by a reasonable hourly rate.” Hanlon v. Chrysler Corp., 15 150 F.3d 1011, 1029 (9th Cir. 1998) (citation omitted); Jordan v. Multnomah County, 815 F.2d 16 1258, 1262 (9th Cir. 1987) (“The most useful starting point for determining the amount of a 17 reasonable fee is the number of hours reasonably expended on the litigation multiplied by a 18 reasonable hourly rate.”) (internal quotation marks and citation omitted)). 19 1. Number of Hours Worked 20 The party seeking fees has the burden of proving “that the hours requested were 21 reasonable” and providing “a sufficient and proper basis for making that determination.” Rey v. 22 23 1 IPAC bases its request for attorneys’ fees and costs on section XVI.E of the Exclusive Distributor Agreement entered into by the parties, which provides that “[t]he costs of the 24 proceeding, including the fees and costs of attorneys, accountants, and witnesses, and the 25 compensation of the arbitrators, shall be assessed by the arbitrators against the parties according to the arbitrators’ determination of fault.” Black Gold does not contest IPAC’s entitlement to fees 26 pursuant to this provision. Further, in the judgment entered November 18, 2019, this Court noted that IPAC was entitled to reasonable attorneys’ fees and costs for activities post-dating the 27 arbitration award, including those related to petitioning this Court and briefing the motions filed in 1 Madera Unified Sch. Dist., 203 Cal. App. 4th 1223, 1244 (2012). In other words, the applicant 2 must justify the claim by submitting evidence supporting the hours worked. See Van Gerwen v. 3 Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). The Court must review time records to 4 determine whether the hours are adequately documented in a manner that can be properly billed 5 directly to clients. Hensley v. Eckerhart, 461 U.S. 424, 433–434 (1983). The Court may adjust 6 these hours down if it believes the documentation to be inadequate. Id. at 433. The Court also 7 must assess whether the hours claimed are vague, block-billed, excessive, and/or duplicative, or 8 whether the hours in their entirety must be reduced because of limited success in the action. See 9 Cotton v. City of Eureka, Cal., 889 F.Supp.2d 1154, 1176 (N.D. Cal. 2012); Van Gerwen, 214 10 F.3d at 1045. 11 IPAC requests attorneys’ fees for (i) 126.4 hours worked between May 1, 2019 and 12 October 31, 2019 to prepare the petition, motion to confirm the arbitration award, and opposition 13 to Black Gold’s motion to vacate that award, and (ii) 20 hours worked between November 1, 2019 14 and December 9, 2019 to prepare the instant request for attorneys’ fees and costs. Black Gold 15 counters that the request should be denied because it is unreasonable and unsupported by the 16 evidence. 17 May 1, 2019 – October 31, 2019: 18 The services rendered between May 1 and October 31, 2019 fall into three categories. 19 First, according to the invoices submitted by IPAC, a portion of counsel’s time during this period 20 was spent preparing the petition, motion to confirm the arbitration award, and opposition to Black 21 Gold’s motion to vacate the award in this case. The invoices contain sufficiently detailed 22 descriptions about the nature of the work performed. IPAC therefore is entitled to recover for 23 these hours expended. 24 Second, IPAC avers that because Black Gold would not accept informal service of process, 25 IPAC was required to accomplish service of process on Black Gold in Monaco pursuant to the 26 Hague Convention. Doing so purportedly required IPAC to engage a law firm in Monaco to assist 27 with the process and obtain certified translations of the papers for the Hague Service procedure. 1 Black Gold did not accept informal service of process, IPAC’s efforts to serve Black Gold in 2 Monaco are recoverable as time reasonably related to its post-arbitration activities before this 3 Court. 4 Third, IPAC seeks fees related to “a co-pending proceeding” in Monaco to enforce the 5 arbitration award. IPAC notes that as a result of these proceedings, a Monaco court has issued an 6 order declaring that the arbitration award is enforceable in Monaco and has seized funds from one 7 of Black Gold’s bank accounts in Monaco. The Exclusive Distributor Agreement, however, 8 which is the basis for IPAC’s fees request, provides only for the recovery of “costs of the 9 proceeding” as “assessed by the arbitrators.” Here, the arbitrator did not award fees related to 10 international enforcement in a separate proceeding. Nor has IPAC cited to any cases suggesting 11 that this Court may award fees for work done to enforce the judgment in an entirely separate 12 proceeding before another court. Moreover, IPAC has not provided case-identifying information 13 or copies of relevant filings in the Monaco court from which this Court might be able to determine 14 whether the time spent on these enforcement proceedings falls within the scope of recoverable fees 15 in this case. The arbitrator’s decision not to award fees for international enforcement, in 16 conjunction with the lack of authority cited by IPAC which bears the burden, warrants a finding 17 that such fees are not recoverable. 18 Thus, IPAC is entitled fees time worked between May 1 and October 31, 2019, except for 19 time billed to the separate enforcement proceeding. IPAC’s invoices do not, however, itemize the 20 amount of time spent on each task in a single billing entry. At most, the Court observes that 4 of 21 the 44 time entries provided explicitly reference the “enforcement of the arbitration award in 22 Monaco” or the “Monaco proceedings,” while several others reference discussions with Monaco 23 counsel. Courts may reduce the time for which fees are sought if block billing, or failing to 24 itemize each task individually in the billing records, makes it impossible to evaluate the 25 reasonableness of the time billed. Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 26 2007). Counsel’s invoices raise such impossibilities. 27 Accordingly, a compliance hearing shall be held on the Court’s 9:01 a.m. calendar on 1 Friday, February 28, 2020, IPAC shall file a supplemental statement with details on the number 2 of hours spent working on this proceeding, including service of process, versus the Monaco 3 proceeding. If IPAC fails to timely file a statement, the Court will apply a 20% reduction to the 4 number of hours spent on this case between May 1 and October 31, 2019, permitting IPAC to 5 recover for 101.12 hours worked. 6 November 1, 2019 – Present: 7 IPAC also requests $8,500 in attorneys’ fees for work performed between November 1, 8 2019 and the present related to this motion for fees and costs. In support of this request, IPAC’s 9 counsel’s declaration includes a brief paragraph stating that counsel spent approximately 20 hours 10 on legal research, identification of relevant fees and costs, and preparation of the filings. IPAC 11 does not, however, provide the Court with any billing invoices, presumably because invoice(s) had 12 been generated yet for work performed in November 2019.2 Although a party may prevail on a 13 motion for attorneys’ fees without submitting billing records, the absence of any detailed evidence 14 regarding this time is noteworthy. In light of deficiencies in the evidence, the Court orders that by 15 February 28, 2020, IPAC shall file evidence regarding post-November 1, 2019 time worked. 16 Failure to timely submit such evidence will result in the Court applying a 10% reduction to this 17 category of hours worked, allowing IPAC to recover for 18 hours spent on work related to the 18 motion for fees and costs and the bill of costs. 19 In sum, the Court shall award fees for 119.12 hours worked, subject to adjustment based 20 on any supplemental filing from IPAC. 21 2. Hourly Rate 22 Having determined the number of hours reasonably expended by counsel, the Court must 23 next determine the reasonable hourly rate to apply. The party seeking the fee has the burden of 24 producing “satisfactory evidence, in addition to the affidavits of its counsel, that the requested 25 rates are in line with those prevailing in the community for similar services of lawyers of 26 reasonably comparable skill and reputation.” Jordan, 815 F.2d at 1263. “Affidavits of the 27 1 plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate 2 determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are 3 satisfactory evidence of the prevailing market rate.” United Steelworkers of America v. Phelps 4 Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Courts also may rely on decisions by other 5 courts awarding similar rates for work in the same geographical area by attorneys with comparable 6 levels of experience. See Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009). 7 Here, IPAC argues that the Court should apply the hourly rate of $425 charged by the three 8 attorneys who worked on this matter. In support of its request, IPAC offers a declaration from one 9 of its attorneys, Vinay Joshi, describing the educational and professional experiences of the three 10 attorneys, two whom were partners and one whom was of counsel at the time of the litigation. 11 IPAC also contends that the rates charged are reasonable when compared to the hourly rates set 12 forth in the Laffey matrix, which one court in this district has described as a “widely recognized 13 compilation of attorney and paralegal rates based on various levels of experience.” Theme 14 Promotions, Inc. v. News Am. Mktg. FSI, Inc, 731 F. Supp. 2d 937, 948 (N.D. Cal. 2010). 15 The Court notes that IPAC has submitted relatively little evidence, namely, a short 16 declaration from one of its attorneys, to demonstrate the reasonableness of the rate charged. From 17 this evidence, however, the Court observes that IPAC’s counsel appears to have significant 18 experience, and in the case of one attorney, has billed at a rate higher than that charged to IPAC. 19 Further, although the Laffey rates are not determinative of a reasonable hourly rate in the Bay Area 20 legal market,3 the Court notes that they are, on average, $101 higher than the rates charged by 21 3 The Ninth Circuit has repeatedly cautioned that “just because the Laffey matrix has been 22 accepted in the District of Columbia does not mean that it is a sound basis for determining rates 23 elsewhere, let alone in a legal market 3,000 miles away.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010); see also Pollinator Stewardship Council v. U.S. Envtl. Prot. 24 Agency, No. 13-72346, 2017 WL 3096105, at *6 (9th Cir. June 27, 2017) (“The Laffey Matrix is not determinative of a reasonable hourly rate for San Francisco-based Loarie’s and Seattle-based 25 Brimmer’s work on this Ninth Circuit petition for review.”) Further, Theme Promotions, cited by IPAC, is distinguishable from this case. There, in the context of a complex antitrust action, the 26 court applied the Laffey matrix to “reflect the wide range of hourly rates for attorneys who worked 27 on the case, and the range of responsibilities for discovery, trial and appeal among the attorneys over the course of twelve years.” 731 F. Supp. 2d at 948. This case arises in an entirely different 1 IPAC’s attorneys in this case, lending some context to the reasonableness of counsel’s rate. 2 Further, an hourly rate of $425 is below or at the low end of the range routinely accepted by courts 3 in this district. See, e.g., In re MagSafe Apple Power Adapter Litig., No. 5:09-cv-01911-EJD, 4 2015 WL 428105, at *12 (N.D. Cal. Jan. 30, 2015) (“In the Bay Area, reasonable hourly rates for 5 partners range from $560 to $800, for associates from $285 to $510[.]”); Banas v. Volcano Corp., 6 2014 WL 7051682, at *5 (N.D. Cal. 2014) (finding rates ranging from $355 to $1,095 per hour for 7 partners and associates were within the range of prevailing rates). 8 Based upon the Court’s understanding of market rates in the Bay Area for firms of similar 9 size and reputation as counsel’s firm, the nature of the case, and comparable rates that the Court 10 has previously approved, the Court is satisfied that counsel’s actual rates are reasonable. 11 In sum, the Court finds that IPAC is entitled to an award of $50,626.00 (119.12 hours x 12 $425 per hour), subject to further adjustments as noted. 13 B. Costs 14 Federal Rule of Civil Procedure 54(d)(1) states that “costs—other than attorney’s fees— 15 should be allowed to the prevailing party.” A prevailing party in an action brought under 16 California law is entitled to recover costs that are “reasonably necessary to the conduct of the 17 litigation rather than merely convenient or beneficial to its preparation” and “reasonable in 18 amount.” Cal. Code Civ. Proc. §§ 1032, 1033.5(c).4 Reasonable reimbursable litigation expenses 19 may include “those for document production, experts and consultants, depositions, translation 20 services, travel, mail and postage costs.” In re Capacitors Antitrust Litig., No. 3:14-CV-03264- 21 JD, 2018 WL 4790575, at *6 (N.D. Cal. Sept. 21, 2018). 22 IPAC requests $32,999.78 in costs consisting of (i) $6,022.96 for translator Catherine Lewi 23 in connection with translation for service of process in Monaco and for enforcement proceedings 24 there; (ii) $400 for filing fees in this Court; (iii) $89.51 to send Apostille documents to Monaco for 25 enforcement proceedings there; (iv) $450 for an Apostille service in connection with enforcement 26 proceedings there; (v) $990.80 paid to Inservio3 LLC to prepare chambers copies of briefs filed in 27 1 this case; and (vi) $22,978.45€ ($25,046.51) paid to the Zabaldano law firm for services rendered 2 in connection with service of process in Monaco and for enforcement proceedings there, with 3 14,528.46€ ($15,836.02) related to service and $8,449.99€ ($9,210.49) related to enforcement 4 proceedings. 5 For the reasons discussed, IPAC generally is entitled to reasonable costs related to 6 litigating in this Court and effectuating service on Black Gold in Monaco, but is not entitled to 7 costs related to the enforcement proceeding in Monaco. Thus, IPAC may recover for the $400 8 filing fee. With respect to the $990.80 spent preparing chambers copies of briefs, the Court agrees 9 with Black Gold that this amount is excessive because IPAC unnecessarily submitted to the Court 10 copies of all cases cited in their briefs. As such, by February 28, 2020, IPAC shall provide the 11 Court with evidence regarding the amount of costs attributable to preparing the binder of case 12 authorities. Failure to provide such evidence will result in the Court applying a 20% reduction to 13 the amount awarded, totaling $792.64. 14 With respect to the $15,836.02 paid to Zabaldano for serving papers in Monaco, the Court 15 observes that the billing records submitted do not detail how much time was spent on the various 16 tasks listed. Moreover, the Court finds the amount requested to be excessive considering the only 17 task being completed was effectuating service on Black Gold. Thus, the Court orders that IPAC 18 shall, in any additional statement filed by February 28, 2020, provide the Court with additional 19 details regarding these costs. Failure to provide sufficient detail will result in the Court applying a 20 35% reduction the amount sought, resulting in $10,293.41. 21 Because IPAC is not entitled to recover for costs related to enforcement proceedings in 22 Monaco, the Court declines to award any of the $89.51 paid to send Aposille documents to 23 Monaco, $450 paid for Apostille service, and $9,210.49 paid to Zabaldano for enforcement 24 proceedings. 25 Finally, with respect to the $6,022.96 paid to the translator, IPAC is entitled to only that 26 portion related to service of process. See Law Office G.A. Lambert & Assocs. v. Davidoff, 72 F. 27 Supp. 3d 110, 120 (D.C. D. 2014) (“The Court also concludes that the cost of translating the 1 Hague Convention for Service Abroad in Civil and Commercial matters—is also taxable in these 2 || circumstances.”). Although Ms. Lewi’s invoices are not clearly itemized, IPAC’s counsel’s 3 || declaration in support of its bill of costs states that $4,622.96 of translation costs were incurred in 4 connection with service, while $1,400 was incurred in connection with enforcement. IPAC is 5 entitled to recover for the former but not the latter. 6 As such, the Court will award IPAC $16,109.01 in costs ($400 + $792.64 + $10,293.41 + 7 $4,622.96), subject to adjustment based on evidence provided in any supplemental statement filed 8 || by IPAC.° 9 || IL. CONCLUSION 10 For the reasons stated above, a compliance hearing shall be held on the Court’s 9:01 a.m. 11 calendar on Friday, March 6, 2020, in Courtroom 1 of the United States Courthouse located at 1301 Clay Street in Oakland, California. Five (5) business days prior to the date of the Tn its motion, IPAC noted that certain of the costs sought also were claimed in its bill of 26 || costs (Dkt. No. 43). While the instant motion was pending, the Clerk entered a taxation of costs (Dkt. No. 51.), which IPAC subsequently challenged (Dkt. No. 52). Because this Order addresses 27 the costs sought in the bill of costs, and in order to avoid duplication, the Court ORDERS that 28 IPAC shall not be awarded any of the costs set forth in the taxation of costs. Further, IPAC’s motion for review of the taxation of costs is TERMINATED as moot.