Strachan v. Pandaw Cruises India

UNITED STATES COURT OF APPEALS FILED
United States Court of Appeals
TENTH CIRCUIT Tenth Circuit
April 21, 2014
Elisabeth A. Shumaker
PAUL G. STRACHAN, Clerk of Court
Plaintiff-Counter-Defendant- No. 13-1482
Appellee, (D. Colorado)
(D.C. 1:10-CV-02593-WJM-KLM)
v.
PANDAW CRUISES INDIA PVT.
LTD.; EXOTIC JOURNEYS PVT.
LTD.; EXOTIC HOSPITALITY PVT.
LTD.; GAJRAJ WILDLIFE RESORTS
PVT. LTD.; HERITAGE RIVER
CRUISES PVT. LTD.; RAJ SINGH;
VISHNU SINGH SINSINWAR,
Defendants-Counter-Plaintiffs-
Appellants.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
*
The Defendants do not request oral argument, and the Plaintiff has not filed
any documents in the appeal. In the absence of a request for oral argument, the
Court will decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2)(C).
This order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment can be cited for its persuasive value under Fed. R. App. P.
32.1(a) and 10th Cir. R. 32.1(A).
Mr. Paul Strachan and Pandaw America, Inc. sued seven foreign
individuals, five foreign corporations, three domain properties, and an unspecified
number of fictitiously named individuals, entities, and properties. The district
court ultimately dismissed Mr. Strachan’s claims based on a failure to prosecute
and awarded judgment to the Defendants on their counterclaim for abuse of
process. On the counterclaim, the court directed defense counsel to file an
affidavit establishing the amount of their fees and costs. Defense counsel
complied, submitting an affidavit and billing entries that showed 743.69 hours of
work and fees and expenses totaling $234,421.83.
The district court regarded this amount as excessive and made two
deductions. First, the court deducted $17,213.76 based on inadequate
documentation by one foreign attorney, Pankaj Bhatia. Second, the court made a
75% reduction on the amount of attorneys’ fees sought by the Defendants’ U.S.
counsel. The court awarded the remaining amount, $53,391.76 in fees and
$3,641.04 in costs, to the Defendants on their abuse-of-process counterclaim. The
Defendants appeal the reduction in attorney fees for U.S. counsel. We affirm.
The district court regarded U.S. counsel’s 743.69 hours as excessive for
eight reasons:
! The case was not complex;
! the case did not “come anywhere close to reaching trial;”
! there had been no substantive hearings;
2
! no discovery disputes had taken place;
! there was no indication of a discovery exchange;
! there was no indication that any depositions had been taken;
! defense counsel lacked credibility for some billings, such as 20.2
hours for a single day; and
! defense counsel did not have to prepare witnesses for trial or to draft
trial briefs, motions in limine, or proposed jury instructions.
Defense counsel argue the district court’s reasons are based on five errors.
Four of the arguments involve the district court’s characterization of the suit
as a straight-forward copyright action, reliance on the absence of any substantive
discovery, failure to expeditiously manage the case, and statement regarding the
number of substantive motions. These arguments are invalid.
For these arguments, our review is limited: We consider only whether the
district court abused its discretion in reducing the amount. Clearone Commc’ns,
Inc. v. Bowers, 643 F.3d 735, 777 (10th Cir. 2011). The Defendants’ four
arguments do not reflect an abuse of discretion.
First, defense counsel insist that the case was never a “straight-forward
copyright action.” Defs.’ Opening Br. at 11. 1 They point to unique features of the
case, such as difficulties in serving Mr. Strachan’s agents and the existence of
1
In part, defense counsel criticize the district court for mistakenly referring
to the case as a copyright action because none of the claims involved copyright
law. The district court’s point, however, was that the case appeared relatively
straightforward.
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multiple parties on four continents. But, defense counsel have not explained why
they had to spend hundreds of hours as a result of service difficulties or the
presence of defendants on four continents.
Second, defense counsel criticize the district court’s statement that there
was no indication substantive discovery had been exchanged. Defense counsel
allege this statement is inaccurate because: (1) they submitted billing entries
which showed drafting and researching of discovery requests, and (2) they
attached their discovery requests to a summary judgment motion. Then, defense
counsel emphasize that “[t]he discovery requests, and Plaintiff’s lack of responses
to the requests for admissions (i.e. admissions), are referenced in virtually every
argument in the Motion for Summary Judgment.” Defs.’ Opening Br. at 17. But,
the district court was focusing on the apparent failure to exchange discovery.
And, even in the Defendants’ opening brief, there is no indication that any
documents were ever exchanged.
In a footnote, the district court remarked: “[The Defendants] appear to have
been preparing to conduct some discovery, but then they reached a settlement with
Pandaw America. (ECF No. 97-1 at 34-35.) There are no billing entries that
indicate any discovery actually occurred.” Defs.’ Opening Br. at 6 n.2. For this
footnote, defense counsel accuse the district court of a lack of familiarity with the
record, pointing to their inclusion of discovery requests with a summary judgment
motion. In making this accusation, defense counsel overstate what the district
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court said. It simply said in a two-sentence footnote that defense counsel’s billing
entries did not show any actual discovery.
Defense counsel point out that the record elsewhere contains proof that
three documents were sent, requesting written discovery. But, defense counsel are
silent regarding any responses, production of a single record, or the taking of a
single deposition. The three discovery requests do little to undermine the
discretion appropriately afforded to the district court.
Third, defense counsel accuse the district court of failing to timely rule on
motions, requiring the case to “drag[] all the way until right before the final
pretrial conference was set to take place.” Id. at 17. For the sake of argument, we
may assume that defense counsel are correct. The problem is that defense counsel
do not identify any hours they incurred for trial preparation because of the district
court’s alleged delays. Mr. Strachan and Pandaw America lost legal
representation by August 13, 2012, and never again filed a single document in the
case. 2 Even then, defense counsel billed over 160 hours for litigation against pro
se, nonparticipating plaintiffs.
Fourth, defense counsel criticize the district court for saying there were only
two substantive motions. Defense counsel point out that the district court did not
include two applications for extensions of time, a request for leave to file an
2
Defense counsel stated on March 26, 2013, that Mr. Strachan had told
others that he had abandoned the litigation. Second Mot. for Telephonic
Appearance at 2 (Mar. 26, 2013).
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oversized brief, two requests to appear by telephone, an answer and counterclaim,
a proposed pretrial order, two status reports, a brief regarding the applicability of
Fed. R. Civ. P. 4(k)(2), a motion to stay discovery, and a motion for entry of
default. The filings are considerable, but do not undermine the district court’s
statement that defense counsel had only filed two substantive motions (a motion to
dismiss for lack of jurisdiction and a motion for summary judgment). Though
defense counsel point to numerous other filings, none constitute “substantive
motions.” The district court’s statement was correct.
The final argument is factual. One of the defense attorneys billed 20.2
hours for a single day, and the district court expressed disbelief. R. at 271
(“Given the time needed to eat, sleep, and generally take care of oneself, the Court
finds it impossible to believe that this entry is accurate.”).
The attorney (who billed these hours) insists that 20.2 hours was correct
because he stayed at the office all night, expressing “regret[] that the [district
judge] has never known the joy of spending all day and night in front of the
computer, eating [his] meals there, but this is what associates are doing more often
these days.” Id. at 22.
We review the district court’s factual finding for clear error. See Coulter v.
Tennessee, 805 F.2d 146, 150-51 (6th Cir. 1986) (stating that the clear-error
standard applies to “factual questions about whether the lawyer actually worked
the hours claimed”). The district court could reasonably question the ability to
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perform over 20 hours of billable work even if the attorney had worked all night. 3
Thus, the district court’s finding did not constitute clear error.
The district court did not err when it reduced U.S. counsels’ fee request by
75%. Accordingly, we affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3
Elsewhere, the district court indicated that an attorney would ordinarily not
be able to bill each hour at work. R. at 269 (“Based on the undersigned’s
experience, to bill eight hours a day to a case requires that the attorney work at
least 10-12 hours in that day.”).
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