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Richemont Internat'l, S.A. v. Clarkson et al.: US District Court : FEES - lodestar fee award; reduction for inadequate documentation; no legal reasearch or private investigator

17
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHEMONT INTERNATIONAL, S.A.;
RICHEMONT INTERNATIONAL, N.A.;
CARTIER INTERNATIONAL N.V.;
OFFICINE PANERAI N.V.;
LANGE UHREN GmbH;
MONTBLANC-SIMPLO, GmbH,
Plaintiffs,
v.
DAVID M. CLARKSON,
a/k/a Dave Clarkson, individually;
REPLICAS OF DISTINCTION,
d/b/a replicasofdistinction.com;
AARON BAER, d/b/a Tic Toc Watch,
Defendants.
Civil No. 07-1641 (JRT/FLN)
MEMORANDUM OPINION AND
ORDER ON PLAINTIFFS MOTION
FOR ATTORNEY FEES AND COSTS
Blake Shepard, Jr., LEONARD STREET AND DEINARD, PA, 150
South Fifth Street, Suite 2300, Minneapolis, MN 55402; Scott Gelin and
Harley Lewin, GREENBERG TRAURIG, PA, 200 Park Avenue, New
York, NY 10166; for plaintiffs.
Plaintiffs Richemont International, S.A., Richemont International, N.A., Cartier
International, N.V., Officine Panerai N.V., Lange Uhren GmbH, and Montblanc-Simplo,
GmbH (plaintiffs) filed this action against defendants David M. Clarkson, Replicas of
Distinction, and Aaron Baer (defendants), alleging trademark and copyright claims
under state and federal law. On January 24, 2008, this Court granted plaintiffs motion
for default judgment and a permanent injunction. This Court also found that plaintiffs are
entitled to reasonable attorneys fees and costs pursuant to the Lanham Act. See 15
-2-
U.S.C. 1117(a). Plaintiffs have now submitted a request for attorneys fees and costs in
the amount of ,464.70. The Court reduces plaintiffs award as set forth below.
ANALYSIS
I. ATTORNEYS FEES
To determine a reasonable attorney fee award under section 1117(a), courts
employ the lodestar method. Yahoo!, Inc. v. Net Games, Inc., 329 F. Supp. 2d 1179,
1181-82 (N.D. Cal. 2004). This method focuses the Courts consideration on two factors:
the reasonableness of the number of hours and the reasonableness of the hourly rate. Id.
at 1182. A reasonable attorney fee is the number of hours and the hourly rate that would
be billed by reasonably competent counsel. Id. In addition, courts should exclude time
that is excessive, redundant, or otherwise unnecessary, and should take into account the
level of success achieved by the litigation. Hensley v. Eckerhart, 461 U.S. 424, 434
(1983).
A. Reasonable Number of Hours
Plaintiffs indicate that they are seeking reimbursement for 140.02 hours of legal
work. (Gelin Decl., Ex. A. at 11.) However, the billing records they have provided only
include entries for 123.12 hours.1 (Gelin Decl., Ex. B.) [T]he fee applicant bears the
burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates. Hensley, 461 U.S. at 437. Incomplete or imprecise billing
1 The Court arrived at this figure by adding the total hours listed on the ten sets of billing
records submitted by plaintiffs. (59.45 + 41.70 + 9.70 + 0.86 + 0.80 + 0.55 + 2.94 + 3.34 + 3.53
+ 0.25 = 123.12).
-3-
records prevent the Court from exercising meaningful review, and are grounds for
reducing a fee award. See H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991).
Because the plaintiffs have not identified which law firm or personnel billed the missing
16.9 hours, what those hours consisted of, or what specific expense was incurred during
this period, the Court has not considered that time as part of its award.
Despite the fact that this case ended in default judgment, the Court finds that its
complexity rendered 123.12 a reasonable number of hours. The prosecution of this case
required the coordination of plaintiffs in Switzerland, the Netherlands, Germany, and
New York, and in describing the potential scope of their claims, plaintiffs complaint
listed nearly 100 of these corporations trademarks. Moreover, this case involved a
relatively sophisticated infringing operation, involving internet marketing and
coordination with a wholesaler in California. Finally, in addition to preparing for
proceedings before this Court, plaintiffs counsel helped prepare for a raid that ultimately
substantiated their claims. With this background in mind, this Court has reviewed
plaintiffs accounting of the specific tasks performed by counsel, and finds the hours
claimed reasonable. Cf. Yahoo!, Inc., 329 F. Supp. 2d at 1189 (concluding that 74.4
hours was reasonable in a default trademark infringement case that was not . . . of
unusual complexity). The Court therefore will not reduce plaintiffs attorney fee award
on the basis of the number of hours claimed in their motion.
-4-
B. Reasonable Hourly Rate
As to plaintiffs hourly rates, the billing records indicate that various attorneys
worked on the case at rates ranging from 1 (for Michelle A. Reid) to 7 (for two
hours billed by Harley I. Lewin).2 (Gelin Decl., Ex. B at 3, 11.) The most hours appear
to have been logged by Scott Gelin, a shareholder at Greenberg Traurig whose specialties
include copyright protection. Gelin billed at a rate of 3.10 an hour. (Id. at 11.) In
addition, when the total figure accounted for in plaintiffs billing records ,835.88.3
is divided by the 123.12 hours claimed by plaintiffs, the blended hourly rate that results is
6.65. When determining reasonable hourly rates, district courts may rely on their
own experience and knowledge of prevailing market rates. Hanig v. Lee, 415 F.3d 822,
825 (8th Cir. 2005). In light of the complexity of this case and plaintiffs success on all of
their claims, the Court finds that this is a reasonable hourly rate for the specialized legal
services provided in this case. Accordingly, the Court finds that plaintiffs are entitled to
the ,835.88 in attorneys fees detailed in their billing records.
2 The invoices submitted by plaintiffs indicate that when they billed their clients, they
discounted their attorneys fees by 10%. In considering the reasonableness of the attorneys
hourly rates, the Court has factored in that reduction (e.g. while Lewins rate is listed as 0 an
hour, his effective rate after the discount and thus the rate considered here was 7 an hour).
3 The Court arrived at that number by totaling the legal services charges on the ten
invoices supplied by Richemont. (Gelin Decl., Ex. A.) The Court did make one adjustment,
however. Richemont included nine sets of documents including (1) billing records detailing the
specific activities that gave rise to the claimed charges; and (2) an invoice indicating what the
attorneys actually charged their clients. In each case, the charges detailed in Richemonts billing
records were reduced by 10% on the invoice, to reflect a courtesy discount. However,
Richemont has included a tenth set of billing records without attaching the corresponding
invoice. (Gelin Decl., Ex. A at 11-13.) The Court has therefore included the charges included in
these billing records only after reducing that total by 10%, on the assumption that the plaintiffs
extended the same courtesy discount in this instance as in all others.
-5-
Plaintiffs also seek ,820 in attorneys fees billed by Leonard Street and
Deinard, PA (Leonard Street and Deinard).4 Leonard Street and Deinard served as
local counsel in this case, and each of the documents filed by plaintiffs was signed by a
Leonard Street and Deinard attorney. However, the only record of this ,820 of
expense appears to come in an entry in a billing record submitted by Greenberg Traurig.
That entry merely states that Greenberg Traurig billed its client ,820.56 for Leonard
Street and Deinards professional services rendered through May 31, 2007 in connection
with www.replicasofdistinction.com and David M. Clarkson. (Gelin Decl., Ex. A at 20.)
This entry indicates that Leonard Street and Deinards work was focused on claims that
were entirely successful. However, Greenberg Traurigs description does not give the
Court an opportunity to evaluate (1) the specific activities that gave rise to Leonard Street
and Deinards expense, (2) whether this figure included any categories of expenses that
were not recoverable, or (3) the reasonableness of the attorneys hourly rates.
Consequently, the Court reduces this portion of the fee award by 20%. See H.J. Inc., 925
F.2d at 260 (approving the reduction of an award by 20% for inadequate documentation).
The Court therefore awards ,056 for the work of Leonard Street and Deinard.
Plaintiffs also seek ,667.30 for a category of expenses including Federal
Express charges, messenger services, photocopy charges, postage, travel expenses and
4 While the invoice information submitted by plaintiffs describes further payments for
professional services billed by Leonard Street and Deinard, PA, plaintiffs have indicated that
they are seeking just ,820 for Leonard Street and Deinards attorneys fees. (Gelin Decl., at
11.)
-6-
computer research charges.5 Several district courts elsewhere have held that out-ofpocket
expenses incurred during a Lanham Act lawsuit may be reimbursed as part of an
attorney fee award if the expenses are not absorbed as part of law firm overhead but are
normally billed to a private client, and the expenses are reasonable. B & H Mfg. Co.,
Inc. v. Lyn E. Bright, No. 01-6619, 2006 WL 547975, at *12 (E.D. Cal. Mar. 3, 2006);
United Phosphorus, Ltd. v. Midland Fumigant, Inc., 21 F. Supp. 2d 1255, 1262 (D. Kan.
1998), revd on other grounds, 205 F.3d 1219 (10th Cir. 2000); see also Pinkham v.
Camex, Inc., 84 F.3d 292, 294-95 (8th Cir. 1996) (stating that reasonable out-of-pocket
expenses of the kind normally charged to clients by attorneys . . . should have been
included as part of the reasonable attorneys fees awarded). The invoices submitted here
indicate that the expenses totaled above were in fact billed to clients in this case, and
limited to categories of expenses that have been awarded elsewhere. See, e.g., B & H
Mfg. Co., Inc., 2006 WL 547975, at *13-17; see also Hixon v. City of Golden Valley, No.
06-1548, 2007 WL 4373111, at *6 (D. Minn. Dec. 13, 2007) (awarding similar expenses
as part of an attorneys fee award under 1988). The Court has reviewed plaintiffs
specific expenses and finds them to be reasonable for a case of this breadth and
complexity.
The Court must, however, exclude plaintiffs claimed expenses for computerbased
legal research. The Eighth Circuit has squarely held that such expenses may not be
added to an attorneys fee award. Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325
5 The Court has arrived at that figure after totaling the expenses billed on plaintiffs
invoices, and without including the ,820 characterized as attorneys fees for work done by
Leonard Street and Deinard, PA.
-7-
(8th Cir. 1993). Thus, the Court reduces its award by 6.09. Accordingly, the Court
finds that plaintiffs are entitled to ,961.21 for the expenses detailed in its billing
records.
II. COSTS
Plaintiffs are also entitled to the costs of the action pursuant to 15 U.S.C.
1117(a). Plaintiffs argue that under this provision they should be allowed to recover
,896.10 for costs expended on private investigators.6
At least two Circuit Courts have held that the phrase costs of the action must be
interpreted with reference to the limitations of 28 U.S.C. 1920. See Uphoff v. Elegant
Bath, Ltd., 176 F.3d 399, 411 (7th Cir. 1999) (Costs are defined in 28 U.S.C. 1920[.]);
Agredano v. Mut. of Cos., 75 F.3d 541, 543-44 (9th Cir. 1996) (holding that ERISAs
allowance for costs of action empowers courts to award only the types of costs
allowed by 28 U.S.C. 1920); see also PETA v. Doughney, 263 F.3d 359, 370-71 (4th
Cir. 2001) (noting the likely connection between the Lanham Acts costs of the action
award and 1920, before assessing a cost award on other grounds). Section 1920 does
not include expenses for private investigators among its enumerated categories.
Accordingly, the Court denies plaintiffs request for reimbursement of these costs. See
Rolex Watch U.S.A., Inc. v. Jones, No. 99-2359, 2002 WL 596354, at *7 (S.D.N.Y.
6 The documents submitted by plaintiffs indicate that the bills for these services were sent
directly from the private investigators to the clients, foreclosing any argument that these
expenses should be awarded as part of attorneys fees.
-8-
Apr. 17, 2002) (denying reimbursement for expenses on private investigators in a
Lanham Act case).
ORDER
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs motion for attorneys fees and costs [Docket No. 47] is
GRANTED in part and DENIED in part as expressly stated in the Memorandum
Opinion.
2. Plaintiffs are awarded attorneys fees and costs against defendants in the
amount of ,853.09.
3. Defendants are hereby ORDERED to remit to plaintiffs a total amount of
,853.09 for costs and attorneys fees.
DATED: September 5, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
 

 
 
 

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