Greene v. Brown , 174 F. Supp. 3d 295 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK GREENE,
Plaintiff
v. Civil Action No. 11-2242 (CKK)
WILLIAM “BILLY” BROWN,
Defendant
MEMORANDUM OPINION
(March 29, 2016)
A year ago the Court entered a default judgment for Plaintiff Mark Greene in this matter,
ordering that the Clerk enter judgment in the amount of $83,606.60 in Plaintiff’s favor, including
$82,500 in treble profits and $1,106.60 in costs. At that time, the Court denied without prejudice
Plaintiff’s request for attorneys’ fees because Plaintiff had not provided the documentation
necessary for the Court to issue such an award. See Greene v. Brown, 104 F. Supp. 3d 12, 14
(D.D.C. 2015). Plaintiff now seeks attorneys’ fees and has provided the documentation that was
previously lacking. Before the Court is Plaintiff’s [40] Motion for Reconsideration of Denial of
Award for Attorneys’ Fees. Upon consideration of the pleadings, 1 the relevant legal authorities,
and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s [40]
Motion for Reconsideration of Denial of Award for Attorneys’ Fees. The Court will reconsider its
previous denial of attorneys’ fees and will award attorneys’ fees in the amount of $32,850.
I. BACKGROUND
The Court presented the background of this case at length in resolving Plaintiff’s motion
for default judgment last year. See Greene, 104 F. Supp. 3d at 14. There is no need to do so here
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The Court’s consideration has focused on Plaintiff’s Motion for Reconsideration of Denial of
Award for Attorneys’ Fees (“Pl.’s Mot.”), ECF No. 40. In an exercise of its discretion, the Court
finds that holding oral argument in this action would not be of assistance in rendering a decision.
See LCvR 7(f).
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again. The Court reserves additional presentation of the relevant background for the discussion
of the issues below.
II. LEGAL STANDARD
Plaintiff moves for reconsideration under Federal Rule of Civil Procedure 60(b)(1),
which provides that the Court may relieve a party from a final judgment or order for “mistake,
inadvertence, surprise, or excusable neglect.” The Rule “was intended to preserve ‘the delicate
balance between the sanctity of final judgments ... and the incessant command of the court's
conscience that justice be done in light of all the facts.’ ” Good Luck Nursing Home, Inc. v.
Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (quoting Bankers Mortgage Co. v. United States, 423
F.2d 73, 77 (5th Cir. 1970)). As the D.C. Circuit has emphasized, Rule 60(b) “gives the district
judge broad latitude to relieve a party from a judgment,” Richardson v. Nat'l R.R. Passenger
Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but “should be only sparingly used,” Good Luck
Nursing Home, 636 F.2d at 577. The party seeking relief under Rule 60(b) bears the burden of
showing that he or she is entitled to the relief. Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C.
2011). Common to all grounds for relief under Rule 60(b) are the requirements that the motion
be timely, see Fed. R. Civ. P. 60(c)(1), and that the movant “demonstrate a meritorious claim or
defense” to the motion upon which the district court previously dismissed the complaint, see
Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d 1310, 1314 (D.C. Cir. 1986).
III. DISCUSSION
The Court first considers whether Plaintiff’s motion warrants the reconsideration of the
Court’s final judgment. Upon concluding that reconsideration is warranted in the interest of
justice, the Court evaluates the merits of Plaintiff’s motion for attorneys’ fees. The Court grants
that request in part and denies it in part.
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A. Motion for Reconsideration
With respect to Plaintiff’s motion for reconsideration, there is no question that Plaintiff’s
motion for reconsideration was timely. Rule 60(c) requires that a motion under Rule 60(b)(1) be
filed within one year of the entry of the order. Plaintiff filed the motion for reconsideration only
six weeks after the Court issued its prior opinion and the order of default judgment in this case.
In support of that motion, Plaintiff’s attorneys prepared detailed documentation of his attorneys’
fees, which had previously been lacking. 2
Plaintiff argues that his counsel mistakenly failed to provide the factual basis for his
request for attorneys’ fees. Whether considered mistake or excusable neglect, the Court
concludes that reconsideration is warranted in the interest of justice. The Court previously
determined that Plaintiff was eligible for an award of an attorneys’ fees. However, the Court
denied the request because of inadequate documentation. Because Plaintiff has now provided
adequate documentation to support the request, at least in part, the Court concludes that it is best
now to consider the merits of the attorneys’ fees request. The Court does so now.
B. Attorneys’ Fees
The Lanham Act provides for the award of reasonable attorneys’ fees to the prevailing
party in a trademark infringement claim only “in exceptional cases,” 15 U.S.C. § 1117(a), and for
claims of trademark counterfeiting, see id. § 1117(b). Because the Court concluded last year that
Plaintiff prevailed on his claim for trademark counterfeiting as a result of Defendant’s default,
Plaintiff is eligible for attorneys’ fees under section 1117(b). See Greene, 104 F. Supp. 3d at 21.
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The Court also notes that, on June 18, 2015, Plaintiff filed a Motion for Leave to File Rule
60(b) Motion for Reconsideration Within Ten Days. Although leave of Court is not required to
file a motion for reconsideration as Plaintiff did in this case, the Court notes that filing this
motion suggests that Plaintiff was at least attempting to preserve his rights in this action by doing
so.
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Therefore, the Court need not determine whether this case represents exceptional circumstances
that merit attorneys’ fees under section 1117(a).
Last year, in reviewing Plaintiff’s initial motion for an award of attorneys’ fees, the Court
concluded that Plaintiff was eligible for an award of attorneys’ fees, but that Plaintiff had
provided insufficient support for his request fees. See Nat’l Ass’n of Concerned Veterans v. Sec’y
of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982) (“In the preparation of fee applications it is
insufficient to provide the District Court with very broad summaries of work done and hours
logged.”). Plaintiff has now provided the documentation necessary to support an award of
attorneys’ fees, including declarations from attorneys Lita Rosario and Johnnie Bond and
detailed supporting billing records.
In determining the reasonableness of an award of attorneys’ fees, “the court must
determine the ‘number of hours reasonably expended in litigation.’ ” Eley v. Dist. of Columbia.,
793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Save Our Cumberland Mountains, Inc. v. Hodel
(SOCM), 857 F.2d 1516, 1517 (D.C. Cir. 1988) (en banc)). In denying Plaintiff’s motion for
attorneys’ fees one year ago, the Court noted that it had previously denied without prejudice
Plaintiff’s first Revised Motion for Default Judgment because the original Complaint failed to
identify the relevant provisions of the Lanham Act on which Plaintiff relied for relief. Plaintiff
subsequently filed an Amended Complaint to comply with the May 27, 2014, decision of this
Court. In denying without prejudice Plaintiff’s initial motion for attorneys’ fees, the Court
concluded that activities by Plaintiff’s counsel solely to remedy Plaintiff’s counsel’s earlier
failure to rely on the appropriate provisions of the Lanham Act in the original Complaint are not
compensable. That is, it would not be reasonable for Defendant to pay to remedy a mistake by
Plaintiff’s counsel. Through Plaintiff’s Rule 60(b)(1) motion, Plaintiff has provided no reason to
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alter that conclusion. Accordingly, the Court hews to its prior conclusion that activities to remedy
counsel’s failures that occurred before the Court identified the flaw in the Complaint are not
compensable.
Plaintiff seeks attorneys’ fees based on 56.45 hours billed by Rosario and on 98.4 hours
billed by Bond. The Court concludes that only those hours that occurred before the Court’s
identification of Plaintiff’s fatal mistake in the original Complaint are compensable. Specifically,
on May 6, 2014, the Court issued an order requiring Plaintiff to file a supplemental brief
addressing why the error in Plaintiff’s Complaint did not affect resolution of the then-pending
motion for default judgment or to withdraw that motion. See Order dated May 6, 2014, ECF No.
22. Plaintiff filed such a supplemental brief. But the Court nonetheless concluded that the defect
in the Complaint required the filing of an amended complaint and, if ultimately warranted, a
subsequent motion for default judgment. See Order dated May 27, 2014, ECF No. 24. Plaintiff
followed this course of action. Accordingly, for the reasons described above, the Court concludes
that all hours expended after the issuance of the Court’s May 6, 2014, Order are not
compensable. The Court will only award fees based on hours billed before that date.
Turning to the specific hours billed, Rosario billed 36.6 hours before the May 6, 2014,
Order, and 19.85 hours after the Order, for a total of 56.45 hours. While Plaintiff seeks fees based
on the entire 56.45 hours, the Court will award fees based only on the initial 36.6 hours. For his
part, Bond billed 76.5 hours before the May 6, 2014, Order, and 21.9 hours after that Order, for a
total of 98.4 hours. Once again, while Plaintiff seeks fees based on all 98.4 hours, the Court will
award fees based only on the initial 76.5 hours.
Having established the number of hours reasonably expended in this litigation, the Court
“must set the ‘reasonable hourly rate.’ ” Eley, 793 F.3d at 100 (quoting SOCM, 857 F.2d at
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1517). Plaintiff seeks fees based on an hourly rate of $375/hour for Rosario and $250/hour for
Bond. Based on the declarations submitted by the attorneys describing their respective legal
experience, the Court concludes that these rates are reasonable.
Finally, the Court “must determine whether use of a multiplier is warranted.” Id. The
Court determines that, in this case, it is not necessary to apply a multiplier.
* * *
The following chart summarizes the fees requested and awarded pursuant to the
conclusions above:
Hours Fees Hours Fees
Requested Requested Allowed Awarded
Rosario 56.45 $21,168.75 3 36.6 $13,725.00
Bond 98.4 $24,600.00 76.5 $19,125.00
TOTAL $45,768.75 $32,850.00
No further reductions are warranted, and the Court awards $32,850 in attorneys’ fees.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiff’s [40] Motion for Reconsideration of Denial of Award for Attorneys’ Fees. The Court
will award attorneys’ fees to Plaintiff in the amount of $32,850.
An appropriate Order accompanies this Memorandum Opinion.
Dated: March 29, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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In Rosario’s declaration, she lists the sum of the fees requested for her work as $25,668.75, but
that is transparently a mathematical error. The figure is inconsistent with the underlying billing
documentation and with the remainder of Plaintiff’s submissions.
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