United States District Court, W.D. Arkansas, Fort Smith Division
JOE HAND PROMOTIONS, INC. PLAINTIFF
VINICIO GAMERO, individually and d/b/a Shenanigan's a/k/a Club Shenanigans DEFENDANT
HOLMES, III CHIEF U.S. DISTRICT JUDGE
before the Court are Plaintiff Joe Hand Promotions,
Inc.'s (“JHP”) motion for attorneys' fees
and costs (Doc. 23) and brief in support (Doc. 24), Defendant
Vinicio Gamero's response (Doc. 25), and Plaintiff's
reply (Doc. 27, Ex. 1). For the reasons set forth below,
Plaintiff's motion for attorneys' fees and costs is
GRANTED IN PART and DENIED IN PART.
filed this suit alleging conversion and a violation of 47
U.S.C. § 605 based on Gamero's televising of
“Ultimate Fighting Championship 175: Chris Weidman v.
Lyoto Machida” (“UFC 175”) at Shenanigans
in Fort Smith, Arkansas. Gamero had not purchased a
commercial license through JHP which held the exclusive
commercial distribution rights for the national telecast.
Gamero conceded liability, and the Court awarded $1, 100 in
compensatory damages for conversion as well as $1, 000 in
minimum statutory damages. Additionally, pursuant to 47
U.S.C. § 605(e)(3)(B)(iii), the Court “shall
direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who
prevails.” In accordance, JHP filed the immediate
motion seeking $6, 449.60. That sum consists of 12.15 hours
from an administrative assistant at $100.00 per hour for an
individual total of $1, 215.00, 7.00 hours from a research
attorney at $300.00 per hour for an individual total of $2,
100.00, 3.80 hours from attorney Thomas P. Riley at $500.00
per hour for an individual total of $1, 900.00, and costs
totaling $1, 234.60.
Court does not find JHP's attorneys' fees to be
reasonable. The starting point for determining a reasonable
amount of attorneys' fees is the lodestar calculation
which “provides an objective basis on which to make an
initial estimate of the value of the lawyer's
services.” Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Hanig v. Lee, 415 F.3d 822, 825 (8th
Cir. 2005). There is a strong presumption that the lodestar
method yields a “reasonable” fee. Perdue v.
Kenny A. ex rel. Winn, 130 S.Ct. 1662, 1673 (2010).
Under this calculation, “the most critical
factor” in determining the reasonableness of a fee
award “is the degree of success obtained.”
Hensley, 461 U.S. at 436. Further, if “a
plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a
whole times a reasonable hourly rate may be an excessive
amount.” Id. “Having considered the
amount and nature of damages awarded, the court may lawfully
award low fees or no fees without reciting the 12 factors
bearing on reasonableness, or multiplying “the number
of hours reasonably expended… by a reasonable hourly
rate.” Farrar v. Hobby, 506 U.S. 103, 115
(1992) (citing and quoting Hensley, 461 U.S. at 430,
n.3, and 433).
present action, while JHP was awarded summary judgment, its
recovery was severely limited. JHP initially sought in its
complaint $110, 000 in statutory damages for the violation of
47 U.S.C. § 605, but amended its request in its motion
for summary judgment to seek a total of $40, 000 in statutory
damages. The court awarded $1, 000 in statutory damages, or
less than one-percent of JHP's initial request and
2.5-percent of JHP's amended request. JHP also recovered
$1, 100, the amount sought in conversion, for the fair market
value of a commercial license for UFC 175 at the time of the
conduct alleged. In total, JHP recovered less than
two-percent of its initial request and approximately
five-percent of its amended request. The amount awarded to
JHP shows limited success such that the product of hours
expended times a reasonable hourly rate would be an excessive
recovery. See Hensley, 461 U.S. at 436.
counsel suggests that the Court follow the Laffey Matrix in
finding that counsel's fees are reasonable. The Laffey
Matrix is an index based on the prevailing attorney fee rates
in Washington, D.C. Other courts in the Eighth Circuit have
criticized the Laffey Matrix, and this Court will not utilize
it. See, e.g., H.P. v. Knickrehm, 2005 WL 2261172,
at *3 (E.D. Ark. Sept. 16, 2005) (choosing instead of the
Laffey Matrix to apply a rate “more reflective of the
ordinary rate for similar work in the Little Rock
community…”); Owner-Operator Indep. Driver
Ass'n, Inc. v. Dunaski, WL 4009333, at *4 (D. Minn.
Sept. 12, 2012) (citations omitted) (“[S]imply because
the Laffey Matrix is used by the United States Attorney's
Office in Washington, D.C. does not mean that its rates are
reasonable in the Twin Cities area.”); Livers v.
Kofoed, 2014 WL 1309616, at *6 (D. Neb. Mar. 31, 2014)
(“The rates reflected in the Laffey Matrix may be
appropriate for larger cities, but they are not reflective of
rates in Omaha, Nebraska.”).
Court finds JHP's request for $5, 215.00 in
attorney's fees far too excessive considering its limited
success and the “cumulative, boilerplate nature of
Cable Act cases.” J&J Sports Prods., Inc. v.
291 Bar & Lounge, LLC, 648 F.Supp.2d 469, 475
(E.D.N.Y. 2009) (adopting in its entirety a report and
recommendation that noted 2.5 hours of attorney time on a
Cable Act case to be reasonable, but counsel's hourly
rate of $250.00 excessive). Because of JHP's limited
success on its claims in this “boilerplate”
action, the Court chooses to determine a reasonable fee
without reciting the 12 Hensley factors bearing on
reasonableness. See Farrar v. Hobby, 506 U.S. at
115. The Court will thus award $500.00 in attorneys'
regards to costs, the Court is mindful that JHP is entitled
to “full costs” under § 605(e)(3)(B)(iii).
This has been interpreted to mean only “taxable
costs.” See Kingvision Pay- Per-View Ltd.
v. Autar, 426 F.Supp.2d 59, 66 (E.D.N.Y. 2006)
(citations omitted) (“Although a plaintiff is entitled
to recover its ‘full costs' under §
605(e)(3)(B)(iii), many courts have interpreted the term,
‘full costs, ' as meaning, ‘taxable
costs.'”). The Court does not believe “full
costs” extends to the $625.00 investigative fee.
See Int'l Cablevision, Inc. v. Noel, 982 F.Supp.
904, 918 (W.D.N.Y.1997) (“The legislative history for
§ 605(e) instructs that the court has the power to
direct the recovery of investigative fees, not that the court
is required to order such an award.”). Further, the
Court believes that “a request for investigative fees
pursuant to § 605(e)(3)(B)(iii) should be subject to the
same level of scrutiny to which requests for attorneys'
fees are subjected.” Id.; see also J &
J Sports Prods., Inc. v. Brazilian Paradise, LLC, 789
F.Supp.2d 669, 677 (D.S.C. 2011); Autar, 426
F.Supp.2d at 67. Thus, the Court will award investigative
fees only on a showing of “(1) the amount of time
necessary for the investigation; (2) how much the
investigators charged per hour; [and] (3) why the
investigators are qualified to demand the requested
rate.” Int'l Cablevision, Inc., 982
F.Supp. at 918. Because JHP's attorney has provided no
detail regarding the $625.00 investigative fee sought, the
Court denies its recovery. The Court also denies JHP costs
for being admitted to this Court pro hac vice. See J
& J Sports Prods., Inc. v. Montes, 2016 WL 1448876,
at *1 (W.D. Ark. Apr. 12, 2016).
entitled to costs for its complaint filing fee of $400.00,
courier charges in the amount of $34.60, and for three
subpoenas totaling $75.00. As such, JHP's total recovery
for costs will be $509.60.
THEREFORE ORDERED that Plaintiff's motion for
attorneys' fees and costs (Doc. 23) is GRANTED IN PART to
the extent that Plaintiff is awarded attorneys' fees in