Laser Spine Institute, LLC v. Playa Advance Surgical Institute, LLC et al, No. 2:2018cv06920 - Document 56 (C.D. Cal. 2020)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST ALL DEFENDANTS 53 by Judge Otis D. Wright, II: The Court GRANTS Plaintiffs request for statutory copyright infringement damages, attorneys fees, costs, and post-judgment interest, but DENIES Plaintiffs request for injunctive relief and for fees in excess of Local Rule 55-3s schedule. Plaintiff is awarded $32,806.67. A separate Judgment will issue. (lc) Modified on 9/23/2020 (lc).
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Laser Spine Institute, LLC v. Playa Advance Surgical Institute, LLC et al Doc. 56 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 LASER SPINE INSTITUTE, LLC, 12 Plaintiff, 13 14 15 16 17 18 19 20 21 Case No. 2:18-cv-06920-ODW (JPRx) v. PLAYA ADVANCE SURGICAL INSTITUTE, LLC d/b/a CALIFORNIA LASER SPINE INSTITUTE; SILICON BEACH MEDICAL CENTER INC. d/b/a CALIFORNIA LASER SPINE INSTITUTE, and YOUNG SUN YI d/b/a CALIFORNIA LASER SPINE INSTITUTE ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST ALL DEFENDANTS [53] Defendants. I. INTRODUCTION 22 Before the Court is a Motion for Default Judgment (“Motion”) filed by Laser 23 Spine Institute, LLC (“Plaintiff”) against Playa Advance Surgical Institute, LLC 24 (“Playa”), Silicon Beach Medical Center Inc. (“Silicon”) and Young Sun Yi (“Yi”) 25 (collectively, “Defendants”). (Mot. for Def. J. (“Mot.”), ECF No. 53.) Defendants do 26 27 28 Dockets.Justia.com 1 not oppose the Motion. For the reasons discussed below, the Court GRANTS in part 2 and DENIES in part Plaintiff’s Motion.1 II. 3 BACKGROUND 4 For many years, Plaintiff provided endoscopic procedures across the country to 5 treat various spinal conditions. (Compl. ¶¶ 8–11, ECF No. 2.) Defendants provide the 6 same types of services. (Compl. ¶ 22.) Defendant Yi is a surgeon and the chief 7 executive officer for Defendants Playa and Silicon, corporations conducting business 8 in California. (Compl. ¶ 5.) Plaintiff 9 owns U.S. Trademark Registration Nos. 3,478,447 (the 10 “’447 Registration”) and 4,316,307 (the “’307 Registration”) for the mark “LASER 11 SPINE INSTITUTE” (the “LSI Mark”) in connection with “[m]edical services” and 12 “[m]inimally invasive surgical services, namely, spinal therapies,” respectively. 13 (Compl. Ex. A, ECF No. 2-1; Compl. Ex. B, ECF No. 2-2.) Plaintiff also owns a 14 copyright in certain materials including text, photographs, compilations, and artwork 15 (the “Copyrighted Material”) that were allegedly depicted on Plaintiff’s website, 16 www.laserspineinstitute.com. (Compl. ¶ 19.) 17 Notably, Plaintiff’s website is no longer accessible on the Internet. Instead, the 18 website Plaintiff references in pleadings and briefs, www.laserspineinstitute.com, 19 automatically redirects to a new website, www.lsi-assignee.com (the “Assignee’s 20 Website”). 21 https://www.lsi-assignee.com (last visited September 21, 2020). 22 Website explains that “[o]n March 14, 2019, Laser Spine Institute, LLC . . . executed 23 an irrevocable assignment for the benefit of creditors (also known as an ‘ABC’).” Id. 24 In other words, it appears that Plaintiff has voluntarily transferred its assets to an 25 assignee for the purposes of liquidating the assets, paying Plaintiff’s creditors, and 26 winding down Plaintiff’s business. Id. Assignment for the Benefit of Creditors for Laser Spine Institute, The Assignee’s 27 28 1 After carefully considering the papers filed in support of the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 2 1 Defendants’ website, www.californialaserspine.com, uses language, logos, and 2 marks which allegedly infringe on Plaintiff’s intellectual property rights. (Compl. 3 ¶ 26.) For example, much of Defendants’ website employs the Copyrighted Material, 4 verbatim, in describing symptoms associated with conditions that both Plaintiff and 5 Defendants treat. 6 No. 53-14), N (ECF No. 53-15), O (ECF No. 53-16).) Plaintiff further cites logos on 7 Defendants’ website displaying the names “California Laser Spine Institute” and 8 “California Laser Spine” as evidence of Defendants’ infringement. 9 ¶¶ 24–26.) These logos are prominently displayed in Defendants’ office, on their 10 written promotional materials, and online. (See Mot. Exs. H (ECF No. 53-9), I (ECF 11 No. 53-10), J (ECF No. 53-11), L, M.) 12 Defendants’ office, styled CALIFORNIA LASER SPINE INSTITUTE, as evidence of 13 Defendants’ infringement. (Compl. ¶ 23.) (Compl. ¶ 31; see Mot. Exs. L (ECF No. 53-13), M (ECF (Compl. Plaintiff also cites a large sign above 14 On July 23, 2018, Plaintiff sent Defendants a letter instructing Defendants to 15 remedy their ongoing violations, but Defendants failed to respond or stop infringing. 16 (Compl. ¶¶ 34–35.) On August 13, 2018, Plaintiff filed its Complaint alleging that 17 Defendants infringed Plaintiff’s Copyrighted Material and its LSI Mark. 18 generally Compl.) Based on these allegations, Plaintiff asserts six claims against 19 Defendants: (1) infringement of the ’447 Registration under 15 U.S.C. § 1114(1); 20 (2) infringement of the ’307 Registration under 15 U.S.C. § 1114(1); (3) unfair 21 competition and false designation of origin under 15 U.S.C. § 1125(a); (4) unfair 22 competition under California Business and Professions Code § 17200, et. seq.; 23 (5) common law trademark infringement; and (6) copyright infringement under 17 24 U.S.C. §§ 501, et. seq. (Compl. ¶¶ 37–93.) Plaintiff prays for injunctive relief, 25 statutory damages, post-judgment interest, and recovery of attorneys’ fees and costs. 26 (Compl. Prayer for Relief.) 27 28 Defendants filed an Answer on October 19, 2018. (ECF No. 18.) (See On September 18, 2019, the Court granted a motion for Defendants’ former counsel to 3 1 withdraw, ordering Playa and Silicon to retain counsel within forty-five days and 2 advising that non-compliance with Court orders may result in entry of a default 3 judgment. 4 (“Withdrawal Order”), ECF No. 39.) Defendants have since failed to comply with the 5 Withdrawal Order or participate in this action, leading the Court to strike Defendants’ 6 Answer and the Clerk to enter default. (Order Granting Pl.’s Mot. to Strike Defs.’ 7 Answer, ECF No. 49; Default by Clerk, ECF No. 50.) 8 (Order Granting Mot. for Leave to Withdraw as Counsel of Record III. LEGAL STANDARD 9 Federal Rule of Civil Procedure 55(b) authorizes a district court to grant default 10 judgment after the Clerk enters default under Rule 55(a). Local Rule 55-1 requires 11 that the movant establish (1) when and against which party default was entered; 12 (2) identification of the pleading to which default was entered; (3) whether the 13 defaulting party is a minor, incompetent person, or active service member; and (4) that 14 the defaulting party was properly served with notice. 15 A district court has discretion whether to enter default judgment. Aldabe v. 16 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Upon default, the defendant’s liability 17 generally is conclusively established, and the well-pleaded factual allegations in the 18 complaint are accepted as true. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 19 917–19 (9th Cir. 1987). In exercising its discretion, a court considers several factors, 20 including (1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff’s 21 substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; 22 (5) the possibility of a dispute concerning material facts; (6) whether the defendant's 23 default was due to excusable neglect; and (7) the strong policy underlying the Federal 24 Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 25 1470, 1471–72 (9th Cir. 1986). 26 27 28 4 IV. 1 The Court finds the requirements of Local Rule 55-1 are satisfied here. (See 2 3 4 Decl. in Supp. of Pl.’s Mot. for Entry of Final Default (“Kastner Decl.”) ¶¶ 2–10, ECF No. 53-1.) Thus, the Court considers the Eitel factors below. Further, while Plaintiff’s Complaint asserts six claims, the monetary relief 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DISCUSSION requested by Plaintiff is based only on Plaintiff’s sixth claim for copyright infringement. (Mot. 15–17.) Plaintiff’s requested injunctive relief stems from the same copyright claim and Plaintiff’s first and second claims for federal trademark infringement. (Mot. 17–19, 22–24.) Because Plaintiff’s Motion does not adequately address claims three through five, and Plaintiff’s prayer is not impacted by those claims, the Court only addresses Plaintiff’s first, second, and sixth claims. A. Eitel Factors 1. Possibility of Prejudice to Plaintiff The first Eitel factor examines whether the plaintiff will be prejudiced if default judgment is not granted. Eitel, 782 F.2d at 1472. A plaintiff suffers prejudice if there is no recourse for recovery absent default. Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003). Here, Defendants violated Court orders, resulting in the Court striking their Answer and the Clerk entering default. (Order Granting Pl.’s Mot. to Strike Defs.’ Answer; Default by Clerk.) Defendants have since failed to appear, and Plaintiff has therefore been unable to prevent Defendants’ ongoing infringement or recover damages. As litigation cannot proceed due to Defendants’ failure to defend, the only way for Plaintiff to obtain relief is through default judgment. Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) (explaining that plaintiff “will likely be without other recourse for recovery” if default judgment is not entered). Hence, this factor favors entry of default judgment. 27 28 5 1 2. Merits of Plaintiff’s Substantive Claim and Sufficiency of Complaint 2 The second and third Eitel factors require that the plaintiff “state a claim on 3 which the [plaintiff] may recover.” Castworld, 219 F.R.D. at 499 (quoting PepsiCo, 4 238 F. Supp. at 1175). 5 To state a copyright infringement claim, a plaintiff must allege (1) ownership of 6 a valid copyright and (2) that the defendant violated an exclusive right of the 7 copyright holder. 17 U.S.C. § 106. An infringing entity’s officer can be vicariously 8 liable if he or she has the (1) “right and ability to supervise the infringing activity” and 9 (2) “a direct financial interest” in the activity. Luvdarts, LLC v. AT & T Mobility, 10 LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (citations omitted). 11 Plaintiff asserts that it is the exclusive owner of the Copyrighted Material and 12 that Defendants infringed Plaintiff’s exclusive rights by copying, distributing, and 13 displaying the Copyrighted Material without Plaintiff’s consent, in violation of 17 14 U.S.C. § 501. 15 displays much of the Copyrighted Material, verbatim, without permission. (Compl. 16 ¶¶ 29–32.) As to Yi’s vicarious infringement, Plaintiff alleges that Yi is Playa and 17 Silicon’s chief executive officer who authorized the infringing material and benefitted 18 from the infringement. (Compl. ¶¶ 5, 34–36.) These allegations set forth the elements 19 and factual content necessary to plead Plaintiff’s copyright claim against all 20 Defendants. (Compl. ¶¶ 85–90, Ex. C (ECF No. 2-3).) Defendants’ website 21 Turning to Defendants’ first and second claims for trademark infringement, 22 Plaintiff must show that, without consent, Defendants “used in commerce a 23 reproduction or copy of a registered trademark in connection with the sale or 24 advertising of any goods or services, and that such use is likely to cause confusion, 25 mistake, or deceive customers.” 15 U.S.C. § 1114(a)(1). “[T]he critical determination 26 is whether an alleged trademark infringer’s use of a mark creates a likelihood that the 27 consuming public will be confused as to who makes what product.” Jada Toys, Inc. v. 28 Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) (internal quotation marks and citations 6 1 omitted). In AMF Inc. v. Sleekcraft Boats, the Ninth Circuit set forth eight factors a 2 court should consider in determining whether two marks are confusingly similar. 599 3 F.2d 341 (9th Cir. 1979), abrogated on other grounds by Mattel, Inc. v. Walking 4 Mountain Prods., 353 F.3d 792 (9th Cir. 2003). The factors are: (1) the strength of 5 the mark, (2) the proximity or relatedness of the goods or services, (3) the similarity of 6 the marks, (4) evidence of actual confusion, (5) marketing channels used, (6) the type 7 of goods or services and the degree of care likely to be exercised by the purchasers, 8 (7) defendant’s intent in selecting the mark, and (8) likelihood of expansion of product 9 lines. Id. at 348–49. 10 Here, in addition to the facts in support of Plaintiff’s copyright claim, Plaintiff 11 attaches both trademark registrations to its Complaint, as well as the allegedly 12 infringing marks Defendants used on their signage, marketing materials, and website. 13 (See Compl. Exs. A, B, E (ECF No. 2-5), F (ECF No. 2-6), G (ECF No. 2-7).) 14 Plaintiff’s Complaint provides allegations and visual evidence demonstrating that 15 Defendants’ infringing marks were likely to confuse customers, and that Plaintiff 16 never consented to Defendants’ use. 17 Plaintiff sufficiently alleges that: (1) the LSI Mark was well-known and distinct 18 (Compl. ¶¶ 9–14); (2) the parties’ services were closely related (Compl. ¶¶ 8–9, 22); 19 (3) the parties’ marks were similar (Compl. ¶¶ 10–15, 23–26); (4) the parties used the 20 same marketing channels (Compl. ¶¶ 12, 24); and (5) Defendants intentionally 21 infringed the LSI Mark (see Compl. ¶¶ 10–15, 23–26, 28, 43, 54). These allegations 22 set forth the necessary elements and factual content to satisfy Plaintiff’s claims under 23 15 U.S.C. § 1114. (Compl. ¶¶ 39–40, 49–51.) In particular, 24 Hence, the second and third Eitel factors favor entry of default judgment. 25 4. 26 The fourth Eitel factor examines whether the sum of money at stake is 27 proportionate to the harm caused by the defendant. Landstar Ranger, Inc. v. Parth 28 Enters., Inc., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). Plaintiff’s prayer for Sum of Money at Stake 7 1 statutory copyright infringement damages is set forth in 17 U.S.C. § 504, and recovery 2 of its fees and costs is permitted under 17 U.S.C. § 505. The damages requested are 3 therefore proportionate to Defendants’ wrongful conduct and the consequential harm 4 to Plaintiff. Hence, this factor favors entry of default judgment. 5 5. Possibility of Disputed Material Facts 6 The fifth Eitel factor examines whether there is likelihood of a dispute of 7 material facts. Eitel, 782 F.2d at 1472. When deciding whether to grant default 8 judgment, the court accepts all well-pleaded facts as true. 9 at 917–18. As such, when a plaintiff pleads the facts necessary to prevail on its 10 claims, there is little possibility of dispute over material facts. Castworld, 219 F.R.D. 11 at 498. Here, as discussed above, Plaintiff’s Complaint alleges facts sufficient to 12 prevail on each of its claims. Because the Court must accept Plaintiff’s allegations as 13 true, and there is no indication that Defendants will reappear in this action, a dispute 14 of material facts is unlikely. Hence, this factor favors entry of default judgment. Televideo, 826 F.2d 15 6. Possibility of Excusable Neglect 16 The sixth Eitel factor considers whether the defendant’s actions are due to 17 excusable neglect. Eitel, 782 F.2d at 1472. There is little possibility of excusable 18 neglect “where a defendant fails to appear and respond” and “default judgment is 19 appropriate” because that defendant’s actions make “a decision on the merits 20 impossible.” Coach Servs., Inc. v. YNM, Inc., No. 2:10-CV-02326-JST (PLAx), 2011 21 WL 1752091, at *4 (C.D. Cal. May 6, 2011). 22 excusable neglect, as Defendants have openly flouted Court orders and refused to 23 participate in this litigation despite being advised that their violations may result in 24 default judgment. As Defendants have received ample warnings and sufficient notice 25 concerning the grounds for default judgment, this factor favors entry of default 26 judgment. 27 28 8 Here, there is no possibility of 1 7. Policy for Deciding Case on the Merits 2 There is a strong policy for deciding cases on their merits “whenever 3 reasonably possible.” Eitel, 782 F.2d at 1472. But a defendant’s failure to appear or 4 respond makes a decision on the merits “impossible.” 5 Holdings, Inc., 845 F. Supp. 2d 1072, 1083 (C.D. Cal. 2012). Because Defendants 6 have not appeared after their Answer was stricken, this factor favors default judgment. 7 In summary, all of the Eitel factors favor granting default judgment; thus, the Wecosign, Inc. v. IFG 8 Court GRANTS Plaintiff’s Motion as to entry of default judgment. 9 B. Remedies 10 Plaintiff seeks statutory damages for copyright infringement, injunctive relief 11 based on copyright and trademark infringement, post-judgment interest, and attorneys’ 12 fees and costs. (Mot. 15–19, 22–24.) 13 1. Statutory Damages 14 Plaintiff argues that it is entitled to $150,000 in statutory damages for its 15 copyright claim based on Defendants’ willful infringement. (Mot. 15–17.) 16 Alternatively, Plaintiff requests $30,000 in statutory damages if the Court does not 17 find Defendants’ infringement was willful. (Mot. 17.) 18 “[A] plaintiff may recover statutory damages ‘whether or not there is adequate 19 evidence of the actual damages suffered by the plaintiff or of the profits reaped by 20 defendant.’” Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1337 (9th Cir. 21 1990) (quoting Harris v. Emus Recs. Corp., 734 F2d 1329, 1335 (9th Cir. 1984)). 22 “The court has wide discretion in determining the amount of statutory damages to be 23 awarded, constrained only by the specified maxima and minima.” Columbia Pictures 24 Tel., Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) 25 (citation omitted). 26 Under the Copyright Act, a plaintiff may elect statutory damages over actual 27 damages and profits “in a sum of not less than $750 or more than $30,000 as the court 28 considers just.” 17 U.S.C. § 504(c)(1). Additionally, a plaintiff who demonstrates 9 1 that infringement was willful may seek statutory damages of up to $150,000 per 2 copyrighted work. 17 U.S.C. § 504(c)(2). The Ninth Circuit has defined “willful” as 3 “knowledge that the defendants’ conduct constituted an act of infringement.” Peer 4 Int’l Corp., 909 F.2d at 1335 (citation omitted). A plaintiff satisfies its burden of 5 proving willfulness “by showing [the] defendant knew or should have known it 6 infringed [the plaintiff’s] copyright.” UMG Recordings, Inc. v. Disco Azteca Distrib., 7 Inc., 446 F. Supp. 2d 1164, 1173 (E.D. Cal. 2006) (citation omitted). 8 Here, Plaintiff presents substantial evidence that much of Defendants’ website 9 replicated the Copyrighted Material verbatim. (See Mot. Exs. L, M, N, O.) But even 10 accepting as true that Defendants intentionally copied several blocks of text from 11 Plaintiff’s website, Plaintiff provides no evidence to show that Defendants knew or 12 should have known they were infringing Plaintiff’s copyright. Therefore, Plaintiff 13 fails to support its request for $150,000 in statutory damages under 17 U.S.C. 14 § 504(c)(2). 15 However, Plaintiff does provide ample support for its request for statutory 16 damages in the amount of $30,000, as Plaintiff secured registration in the Copyrighted 17 Material in 2014, prior to all alleged infringement. (See Compl. Ex. C); 17 U.S.C. 18 § 504(c)(1). Further, despite having notice of this action and the Motion, Defendants 19 have not appeared to rebut Plaintiff’s showing. Accordingly, Plaintiff is entitled to 20 $30,000 in statutory damages for copyright infringement. 21 2. Injunctive Relief 22 Plaintiff requests an injunction: (1) requiring Defendants to permanently 23 remove www.californialaserspine.com and all subpages from the Internet and cease 24 use of that domain name; (2) enjoining Defendants from using “California Laser Spine 25 Institute” or “California Laser Spine” in connection with offering any goods or 26 services; and (3) ordering Defendants to cease holding themselves out as “California 27 Laser Spine Institute.” (See Pl.’s Proposed Order ¶¶ 2–3, ECF No. 53-21.) 28 10 1 A permanent injunction may only be entered where the plaintiff demonstrates: 2 (1) that it has suffered an irreparable injury; (2) that remedies available at law are 3 inadequate to compensate for that injury; (3) that, considering the balance of the 4 hardships between the plaintiff and defendant, a remedy in equity is warranted; and 5 (4) that the public interest would not be disserved by a permanent injunction. eBay 6 Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 7 Here, a permanent injunction is inappropriate. Plaintiff has executed an ABC to 8 sell off its assets and wind down its business. See Assignee’s Website. Plaintiff’s 9 website, upon which it bases its claim for infringement and request for injunctive 10 relief, is no longer accessible. Id. With Plaintiff ceasing its operations, no irreparable 11 injury will occur to Plaintiff’s reputation because there is no continuing reputation to 12 protect. Similarly, the balance of hardships weighs in Defendants’ favor, as denying 13 an injunction can cause no hardship to Plaintiff if it is no longer competing with 14 Defendants for business. 15 permanent injunction, as consumers are not likely to be confused between the parties’ 16 services. For these reasons, Plaintiff’s ABC defeats its request for injunctive relief. 17 See generally eBay, 547 U.S. at 391. The request for injunctive relief is DENIED. Further, the public interest would not be served by a 18 3. Attorneys’ Fees, Costs, and Interest 19 Plaintiff seeks to recover its costs and attorneys’ fees under 17 U.S.C. § 505, 20 which vests in courts the discretion to award “the recovery of full costs” and 21 reasonable attorney fees. (Mot. 15-17.) In a motion for default judgment, where 22 attorneys’ fees are sought under a statute, fees are generally calculated according to 23 the schedule provided by the court. C.D. Cal. L.R. 55-3. Attorneys may request fees 24 in excess of the schedule, as Plaintiff has done here in requesting $29,111.65 in fees. 25 Id. 26 ‘reasonable’ fee in the usual manner [using the ‘lodestar method’], without using the 27 fee schedule as a starting point.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152 28 (9th Cir. 2018). The “lodestar” method multiplies the hours reasonably expended by a When a party makes such a request, “the court is obligated to calculate a 11 1 reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A court may 2 consider several pertinent factors in determining a fee award’s reasonableness. 3 Langer v. Butler, No. 19-cv-0829-DOC (JDEx), 2019 WL 6332167, at *8 (C.D. Cal. 4 Aug. 27, 2019) (citing Quesada v. Thomason, 850 F.2d 537, 539 n.1 (9th Cir. 1988) 5 (listing twelve factors)).2 The Court, in its discretion, finds that Plaintiff is entitled to its costs and 6 7 reasonable attorneys’ fees under 17 U.S.C. § 505.3 8 insufficient documentation and argument for the Court to conduct a lodestar analysis. 9 Plaintiff instead attaches invoices that list the hours spent on tasks and the 10 accompanying charges but does not address the necessity or reasonableness of these 11 charges. (See Pl.’s Invoices, ECF No. 53-19.) Plaintiff conducts no lodestar analysis, 12 and Plaintiff’s counsel offer no evidence to justify their billing rates, providing neither 13 cases approving their rates nor cases approving comparable rates for lawyers in 14 similar practice areas and markets. (Mot. 19–20.) The Court therefore determines the 15 amount of recoverable fees under Local Rule 55-3. Trs. of Operating Eng’rs Pension 16 Tr. v. W. Coast Boring, Inc., No. 2:19-cv-06546-ODW (PLAx), 2020 WL 1875454, at 17 *3 (C.D. Cal. Apr. 15, 2020) (calculating fee award under Local Rule 55-3 despite 18 request for lodestar analysis, noting that “far from disregarding [Plaintiff’s] request, 19 the Court heard the request, analyzed the proffered billing records, and found them 20 inadequate for a lodestar analysis.” (citations omitted)). However, Plaintiff offers 21 Pursuant to Local Rule 55-3, for damage awards between $10,00.01 and 22 $50,000, the fee schedule provides for a fee award equal to $1200 plus 6% of damages 23 2 24 25 26 27 28 The factors are: (1) The time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney as a result of accepting the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation, and ability of the attorney(s); (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Quesada, 850 F.2d at 539 n.1. 3 The Court need not address Plaintiff’s alternative argument that it is entitled to recover the same fees under 15 U.S.C. § 1117(a). (Mot. 24–25.) 12 1 over $10,000, exclusive of costs. C.D. Cal. L.R. 55-3. Because a monetary award of 2 $30,000 is appropriate, the Court awards Plaintiff $2400 in attorneys’ fees 3 ($1200 + (6%) * ($30,000 – $10,000) = $2400). See id. Plaintiff also documents 4 $406.67 in costs, which the Court awards to Plaintiff. (Pl.’s Invoices 13.) 5 Finally, the Court awards post-judgment interest, which shall be recoverable on 6 all aspects of the judgment including the amounts awarded for damages, fees, and 7 costs. Air Separation, Inc. v. Underwriters at Lloyd’s of London, 45 F.3d 288, 290–91 8 (9th Cir. 1995). Interest will begin to accrue on the date judgment is entered at the 9 applicable statutory rate. 28 U.S.C. § 1961(a). 10 Plaintiff is thus awarded post-judgment interest and $2806.67 in fees and costs. V. 11 CONCLUSION 12 For the reasons discussed above, the Court GRANTS in part and DENIES in 13 part Plaintiff’s Motion. (ECF No. 53.) The Court GRANTS Plaintiff’s request for 14 statutory copyright infringement damages, attorneys’ fees, costs, and post-judgment 15 interest, but DENIES Plaintiff’s request for injunctive relief and for fees in excess of 16 Local Rule 55-3’s schedule. Plaintiff is awarded $32,806.67. A separate Judgment 17 will issue. 18 19 IT IS SO ORDERED. 20 21 22 23 September 23, 2020 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28 13
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