Erickson Productions Inc et al v. Kraig R Kast, No. 5:2013cv05472 - Document 242 (N.D. Cal. 2017)
Court Description: FURTHER ORDER granting in part and denying in part Erickson's Request for Fees and Costs. Signed by Magistrate Judge Howard R. Lloyd on 8/25/2017. (hrllc2, COURT STAFF) (Filed on 8/25/2017)
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Erickson Productions Inc et al v. Kraig R Kast Doc. 242 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 ERICKSON PRODUCTIONS INC, et al., 12 Case No.5:13-cv-05472-HRL Plaintiffs, 13 v. 14 KRAIG R. KAST, 15 Defendant. 16 FURTHER ORDER GRANTING IN PART AND DENYING IN PART ERICKSON’S REQUEST FOR FEES AND COSTS Re: Dkt. No. 177 17 Erickson1 previously moved for an award of attorney’s fees and costs under the Copyright 18 19 Act, 17 U.S.C. § 505. Specifically, they asked for $215,087.50 in fees and $3,730.63 in costs for a 20 total award of $218,818.13. In a prior order on that motion, the court concluded that Erickson was 21 entitled to an award. (Dkt. 174). However, the court was unable to properly assess the 22 reasonableness of the requested fees because Erickson did not adequately support counsel’s hourly 23 rate. Accordingly, the motion was denied without prejudice to Erickson to make a further 24 submission in support of an award. Erickson has done so. Kast has filed a supplemental 25 opposition. Upon consideration of all of the moving and responding papers, the court grants 26 Erickson’s request for fees in part and denies it in part. 27 1 28 Jim Erickson and Erickson Productions, Inc. will be referred to collectively as “Erickson.” Dockets.Justia.com A. 1 2 Reasonable Hourly Rates Whether calculating attorney’s fees under California or federal law, courts follow the lodestar approach. “The most useful starting point for determining the amount of a reasonable fee 3 is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 4 5 6 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L.Ed.2d 40 (1983), abrogated on other grounds by Tex. State Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S. Ct. 1486, 103 L.Ed.2d 866 (1989). “In determining a reasonable hourly rate, the district court 7 should be guided by the rate prevailing in the community for similar work performed by attorneys 8 9 of comparable skill, experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 10 1987) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 79 L.Ed.2d 891 (1984)). United States District Court Northern District of California 11 “Generally, the relevant community is the forum in which the district court sits.” Barjon v. 12 Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The fee applicant has the burden of producing 13 evidence, other than declarations of interested counsel, that the requested rates are in line with 14 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 15 experience and reputation. Blum, 465 U.S. at 896 n.11. Additionally, the court can rely on its 16 own knowledge and experience in evaluating a request for fees. Ingram v. Oroudjian, 647 F.3d 17 18 925, 928 (9th Cir. 2011) (agreeing that “judges are justified in relying on their own knowledge of customary rates and their experience concerning reasonable and proper fees.”). 19 Erickson seeks fees of $215,087.50 for 383.20 hours of work performed by attorney Kevin 20 21 McCulloch and for 83.90 hours of work by his paralegal, Ms. Ayala. McCulloch’s identified rates for the relevant time period are $500/hour and $550/hour,2 and Ms. Ayala’s rate is $75/hour. 22 According to his declaration, McCulloch graduated from Yale Law School in 2005, worked at a 23 large law firm for several years, and then clerked for one year on the Sixth Circuit Court of 24 Appeals. For purposes of this litigation, during the relevant time period, he worked at Nelson & 25 McCulloch, a firm he formed with another attorney. (Dkt. 109, McCulloch Decl., ¶ 8). He 26 27 Submitted timesheets indicate that McCulloch’s hourly rate increased from $500 to $550 sometime around 2013. (Dkt. 109-5). 2 2 28 1 provides the 2013 Economic Survey Benchmark Tool from the American Intellectual Property 2 Law Association showing that the average hourly rate for intellectual property attorneys in San 3 Francisco is $547. (Dkt. 178, Suppl. McCulloch Decl. ¶ 3, Ex. 1). Indeed, courts in this district 4 have looked to that survey to ascertain the reasonableness of hourly rates. See, e.g., Automattic, 5 Inc. v. Steiner, 82 F. Supp.3d 1011, 1032-33 (N.D. Cal. 2015) (observing in a Digital Millenium 6 Copyright Act case that the average billing rate for intellectual property attorney is $547/hour and 7 awarding fees at $418.50/hour for three attorneys and at $680/hour for 1 hour of work performed 8 by a partner); Livingston v. Art.com, Inc., No. 13-cv-03748-JSC, 2015 WL 4319851 at *12 (N.D. 9 Cal., Apr. 17, 2015) (observing in a photograph copyright infringement case that the average rate for intellectual property attorneys in San Francisco is $547 and finding an hourly rate of $325/hour 11 United States District Court Northern District of California 10 to be reasonable for an attorney with 2.5 years of experience); see also generally Apple, Inc. v. 12 Samsung Elecs. Co., Ltd., No. C 11-1846 LHK (PSG), 2012 WL 5451411 at *6 (Nov. 7, 2012) 13 (noting that in patent cases, “courts in this district have looked to the [AIPLA] annual survey of 14 hourly rates to ascertain the reasonableness of fees, a practice that the Federal Circuit condones.”). 15 McCulloch also submits information from the Valeo Attorney Hourly Rates Database from 16 April 2014, showing that intellectual property attorneys who graduated from law school in the 17 same year as him charged $575 and $635. (Dkt. 178, Suppl. McCulloch Decl. ¶ 4, Ex. 2). Courts 18 in this district have also found Valeo relevant in assessing fee awards. See Banas v. Volcano 19 Corp., 47 F.Supp.3d 957, 965 (N.D.Cal.2014) (finding rates set forth in Valeo database to be 20 relevant). 21 This court finds that McCulloch’s hourly rates of $500 and $550 are reasonable. As for 22 Ms. Ayala’s paralegal rate of $75/hour, the court finds that it is also reasonable, falling below rates 23 that have been accepted in a range of other cases. See, e.g., Art.com, Inc., 2015 WL 4319851 at 24 *14 (observing in a copyright case that “courts in this District recently have awarded fees for 25 paralegals at a rate of $120 through $150 per hour.”); Hernandez v. Yen, No. 13-CV-01830- 26 RMW, 2015 WL 5185669 at *3-4 (N.D. Cal., Sept. 4, 2015) (in a disability access case, finding 27 reasonable a $150/hour rate for a paralegal with over 10 years experience, $125/hour rate for a 28 paralegal with 6 years experience, and a $95/hour rate for a paralegal with over 2 years 3 1 experience); Wynn v. Chanos, No. 14-cv-04329-WHO, 2015 WL 3832561 *3 (N.D. Cal., June 19, 2 2015) (in a defamation case, finding a paralegal rate of $170/hour reasonable). 3 B. 4 “In determining reasonable hours, counsel bears the burden of submitting detailed time Reasonableness of Time Spent 5 records justifying the hours claimed to have been expended.” Chalmers, 796 F.2d at 1210 6 (citation omitted). “Those hours may be reduced by the court where documentation of the hours is 7 inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed 8 excessive or otherwise unnecessary.” Id. 9 Kast raises a number of objections to the time for which Erickson seeks fees. But, the court turns first to what is not disputed: Kast argues that the requested fees include $8,470.00 11 United States District Court Northern District of California 10 incurred in motions practice in litigation in the Southern District of New York (“New York 12 Action”), where Erickson initially sued Kast. Erickson withdraws those hours from consideration, 13 saying that they were inadvertently included in the sums sought here. Accordingly, the court will 14 disregard $8,470.00 in fees and will deduct that amount from the sum originally sought by 15 Erickson. (Dkt. 109-5 at ECF pp. 5, 7). 16 17 As to the disputed items, the court rules as follows: 1. Fees sought in the New York Action 18 Kast contends that Erickson’s submitted time sheets duplicate many of the same amounts 19 sought in the New York Action. In particular, he objects to $19,650.00 in charges incurred prior 20 to September 6, 2013, which he says all stem from the New York Action and are sums for which 21 Erickson also sought reimbursement from the New York court. Erickson says that they excluded 22 fees incurred between May 8, 2012 and September 6, 2013 incurred during the New York Action. 23 However, they contend that all other fees incurred prior to September 6, 2013 properly should be 24 awarded because those time entries pertain to time spent in pre-suit investigation, as well as time 25 spent preparing the New York complaint. Erickson argues that this time is compensable because 26 this court ruled on a motion in limine that Kast’s responses to Erickson’s pre-suit letters was 27 admissible at trial. 28 Erickson misses the point. The record indicates that they already sought these same fees in 4 1 the New York Action. (Dkt. 112-1, Ranallo Decl. ¶ 2, Ex. F). While it appears that the District 2 Court in New York did not award all of Erickson’s requested fees (Dkt. 179, Ex. 4), it apparently 3 considered Erickson’s request and awarded the sum to which it determined Erickson was entitled. 4 To the extent Erickson now seeks a second bite at the apple or to have this court, in effect, second- 5 guess the decision of the court in New York, this court declines to do so. Accordingly, $19,650.00 6 will be deducted from the requested fees. 7 2. Duplicate entries Kast objects to two identical entries (each for $1,595.00 for 2.90 hours of work) made on 9 February 11, 2014 and February 13, 2014 for “Exchange correspondence with opposing counsel 10 (PR) re CMC and service; contact counsel for Atherton Trust (Peter Dee “PD”) re: subpoena in 11 United States District Court Northern District of California 8 ND Cal case.” (Dkt. 109-5 at 7). These entries are duplicative, and Erickson offers no 12 explanation why they should not be so construed. Accordingly, $1595.00 will be deducted from 13 the requested fees. 14 15 3. Fees for an unfiled sanctions motion Kast objects to 8.3 hours of time (for a total of $4,565.00 in fees) incurred from May 30, 16 2014 to June 17, 2014 in connection with a sanctions motion that never was filed. (Dkt. 109-5 at 17 10-11). “Courts have allowed recovery of costs related to claims and defenses that ultimately 18 proved unnecessary.” Micromesh Technology Corp. v. American Recreation Products, Inc., No. 19 C-06-6030 MHP, 2007 WL 2501783, at *10 (N.D. Cal., Aug. 30, 2007) (citation omitted); see 20 also Guttman v. Ole Mexican Foods, Inc., No. 14-cv-04845-HSG, 2016 WL 9107426 at *5 (N.D. 21 Cal., Aug. 1, 2016) (awarding fees for 18.1 hours spent drafting an unfiled motion for class 22 certification). Kast contends that the threatened motion was simply an attempt to intimidate him 23 into dropping his fair use defense. Erickson, on the other hand, contended throughout these 24 proceedings that Kast’s defense was frivolous. It is not clear on this record why Erickson 25 ultimately decided not to pursue its sanctions motion, and Kast’s fair use defense eventually was 26 dismissed on summary judgment. (Dkt. 70). While this court declined to find Kast’s defense 27 frivolous, it also finds no reason on this record to fault Erickson for initially pursuing what they 28 apparently believed to be a viable means of challenging Kast’s defense. Having reviewed the 5 1 2 subject entries, the court finds the time incurred reasonable. No deductions will be made here. 4. Record-Keeping Objections and Excessive Fees 3 Kast objects to Erickson’s requested fees because McCulloch’s declaration does not 4 “describ[e] the manner in which time records were maintained,” Civ. L.R. 54-5(b)(2), or state that 5 the requested fees are based on contemporaneous time records. Contemporaneous time records 6 are strongly preferred, and the absence of such records has led courts in this district to find that 7 billing entries are inherently less reliable. See, e.g., Joe Hand Promotions, Inc. v. White, No. C11- 8 01331 CW (JSC), 2011 WL 6749061 at *2 (N.D. Cal., Dec. 6, 2011). Even so, contemporaneous 9 time records are not absolutely necessary, and the lack of such records cannot be the basis for denying a fee request in its entirety, as Kast requests. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 11 United States District Court Northern District of California 10 1121 (9th Cir. 2000). 12 Kast nonetheless argues that the requested fees are excessive due to a number of block- 13 billing time entries. Erickson contends that block billing is not an issue because time entries 14 pertain to single task. Block billing is discouraged where discrete and unrelated tasks are lumped 15 together because that practice can make it difficult, if not impossible, for the court to assess the 16 reasonableness of the time spent on each task. Thus, “entries describing closely related tasks with 17 a level of particularity generally do not impede the Court’s ability to review the reasonableness of 18 the hours expended.” Kalani v. Starbucks Corp., No. 13-cv-00734-LHK, 2016 WL 379623 at *7 19 (N.D. Cal., Feb. 1, 2016), remanded on other grounds, --- Fed. Appx. ---, 2017 WL 2813864 (9th 20 Cir., June 28, 2017); see also Cruz v. Starbucks Corp., No. C-10-01868 JCS, 2013 WL 2447862 at 21 *7 (N.D. Cal., June 5, 2013) (declining to reduce the requested fee award for alleged block billing 22 where the time records were adequate to allow the court to determine whether the time spent on 23 particular tasks is reasonable). 24 Having reviewed Erickson’s timesheets, this court finds that, for the most part, the time 25 entries pertain to a single task (or to closely related tasks) and do not impede the court’s ability to 26 determine whether the time spent was reasonable. However, there are several block billing entries 27 where disparate activities were lumped together, making it impossible for the court to assess the 28 reasonableness (or not) of the time spent on any given task. Those entries represent 26.3 hours for 6 1 a total of $14,465.00 in fees as follows: 2 3 4 5 6 7 8 February 7, 2014 (McCulloch): 4.30 hours, $2,365.00 February 11, 2014 (McCulloch): 2.90 hours, $1,595.00 April 16, 2014 (McCulloch): 3.20 hours, $1,760.00 April 22, 2014 (McCulloch): 2.80 hours, $1,540.00 May 7, 2014 (McCulloch): 4.80 hours, $2,640.00 May 16, 2014 (McCulloch): 5.10 hours, $2,805.00 September 19, 2014 (McCulloch): 3.20 hours, $1,760.00 (Dkt. 109-5). Courts in this district have observed that block-billing may inflate hours as much as 10 10%-30%. See, e.g., Apple, Inc., 2012 WL 5451411 at *5. The court cannot impose across-the- 11 United States District Court Northern District of California 9 board deductions over all time entries, including those that are not improper. Welch v. Met. Life 12 Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). Nevertheless, the court finds that a deduction of 10% 13 as to the above specified block-billed entries is appropriate. In view of the relatively modest 14 occurrence of these improper block-billing entries, the court finds this deduction sufficient to 15 balance the hours billed in block format. Accordingly, the court will deduct $1,446.50 from the 16 fee award. 17 18 19 Additionally, based on its independent review of the timesheets, this court finds the following entries to be excessive: On January 10, 2014, Ayala incurred $60.00 in fees (0.8 hours) drafting and filing a 20 motion for telephonic appearance at a case management conference. McCulloch 21 then incurred $605.00 in fees (1.1 hours) revising and finalizing that motion. 22 Those entries apparently pertain to Dkt. 21, which is an entirely perfunctory motion 23 to appear by phone. The court will deduct 0.2 hours ($15.00) from Ayala’s time 24 and 0.9 hours ($495.00) from McCulloch’s time for a total deduction of $510.00. 25 On September 9, 2014, McCulloch incurred $495.00 in fees (0.90 hours) drafting 26 and filing a document re-noticing the hearing for Erickson’s earlier filed summary 27 judgment motion. That time entry appears to pertain to Dkt. 55, which aside from 28 the title of the document and the date of the requested hearing, simply replicates the 7 1 preamble to Erickson’s summary judgment motion (Dkt. 51) that had been filed a 2 week beforehand. The court deducts 0.70 hours, for a total deduction of $385.00. 3 On September 17, 2014, Ayala incurred $60.00 in fees (0.8 hours) drafting and 4 filing a straightforward motion for telephonic appearance at a motion hearing (Dkt. 5 58), and McCulloch incurred $165.00 (0.30 hours) reviewing and approving that 6 motion. The court will deduct 0.2 hours ($15.00) from Ayala’s time and 0.1 hour 7 ($55.00) from McCulloch’s time for a total deduction of $70.00. 8 9 Based on the foregoing, the court deducts a total of $32,126.50 from Erickson’s requested fees, for a total fees award of $182,961.00. C. 11 United States District Court Northern District of California 10 Erickson also seeks $3,730.63 in costs. Kast objects to the filing fee ($350.00) and service Costs 12 of process ($105.00) costs incurred in the New York Action as duplicative of those sought in that 13 case. Those costs will be deducted. Additionally, $50.05 in “FedEx Charges” incurred on April 1, 14 2014 will not be allowed as there is no explanation for this expense. See Lewis v. Activision 15 Blizzard, Inc., No. C12-1096 CW, 2014 WL 4953770 at *5 (N.D. Cal., Sept. 25, 2014) (declining 16 to award unexplained costs). Costs are otherwise awarded in the amount of $3,225.58. ORDER 17 18 Based on the foregoing, Erickson’s renewed request for fees is granted in part and denied 19 in part as follows: Erickson is awarded $182,961.00 in fees and $$3,225.58 in costs, for a total 20 award of $186,186.58. 21 22 SO ORDERED. Dated: August 25, 2017 23 24 HOWARD R. LLOYD United States Magistrate Judge 25 26 27 28 8
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