G & G Closed Circuit Events, LLC v. Parker

ORDER:

(1) DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' COUNTERCLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION AS MOOT

(2) GRANTING PLAINTIFF'S MOTION FOR ATTORNEYS FEES AND COSTS

[ECF No. 9. 10, 12, 14, 16]

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I. INTRODUCTION

Plaintiff G & G CLOSED CIRCUIT EVENTS, LLC, a Nevada corporation ("Plaintiff") brought this action for violation of the anti-piracy provisions of the Communications Act of 1934, 47 U.S.C. §§ 553 and 605, against Defendants TIMOTHY PARKER, individually and d/b/a CHULA VISTA BREWERY, and DIEGO & DANTE, LLC an unknown business entity d/b/a CHULA VISTA BREWERY (collectively, "Defendants"). ECF No. 1.

Before the Court are Plaintiff's motions (1) to dismiss Defendants' counterclaims for lack of subject matter jurisdiction, ECF No. 9, and (2) for Attorney's Fees and Costs, ECF No. 12. Defendant opposed the motion for attorney's fees and costs. ECF No. 14. Plaintiff replied. ECF No. 16. The motions were submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. ECF No. 13.

After considering the papers submitted, supporting documentation, and applicable law, the Court DENIES Plaintiff's Motion to Dismiss as Moot and GRANTS IN PART Plaintiff's Motion for Attorney's Fees and Costs and awards Plaintiff $1,573.00 in attorneys' fees and $488.28 in costs for a total of $2,061.28.

II. BACKGROUND

A. Statement of Facts

Plaintiff alleges it was granted the exclusive nationwide commercial distribution (closed-circuit) rights to the Saul "Canelo" Alvarez v. Daniel Jacobs WBA/WBC/IBF Middleweight Championship Fight Program event telecast nationwide on Saturday, May 4, 2019 (the "Program"). ECF No. 1 at ¶ 18. Plaintiff complains that on the night of the Program, Defendant intercepted, received, and published the Program at Chula Vista Brewery. Id. at ¶ 19.

B. Procedural History

On April 29, 2020, Plaintiff filed a complaint alleging claims for relief for: (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; (3) conversion; and (4)

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violation of California Business & Professions Code, § 17200, et seq. ECF No. 1.

On May 14, 2020, Defendants filed an Answer to the Complaint and Counterclaim, alleging claims for relief for (1) conversion and (2) violation of California Business & Professions Code, § 17200, et seq. ECF No. 3.

Shortly thereafter, on May 29, 2020, Plaintiff filed an Acceptance of Defendants' Rule 68 Offer of Judgment, pursuant to which Defendant offered to allow entry of judgment to be taken against Defendants and in favor of Plaintiff in the amount of $12,000.00 plus allowable costs (excluding any prevailing attorneys' fees) and "reasonable attorneys' fees, both of which will be determined by the Court, as of May 13, 2020." ECF No. 7 at 4:3-8. On June 4, 2020, the Clerk of the Court entered judgment accordingly. ECF No. 8. That same day, Plaintiff filed a Motion to Dismiss Defendants' Counterclaims for Lack of Subject Matter Jurisdiction. ECF No. 9. However, on June 8, 2020, Defendants filed a Notice of Dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, voluntarily dismissing the counterclaims and mooting Plaintiff's Motion. ECF No. 10.

On June 18, 2020, Plaintiff filed its Motion for Attorneys Fees and Costs. ECF No. 12. On July 1, 2020, Defendants opposed. ECF No. 14. On July 2, 2020, an early neutral evaluation conference was held before Magistrate Judge Ruben B. Brooks regarding Plaintiff's Motion for Attorneys' Fees and Costs, but a resolution was not reached. ECF No. 15. As such, on July 20, 2020, Plaintiff filed a reply brief. ECF No. 16.

III. LEGAL STANDARD

A. Plaintiff's Motion to Dismiss for Lack of Subject Matter Jurisdiction

Rule 12(b)(1) allows a defendant to seek dismissal of a claim or lawsuit by asserting the defense of lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). "If the court determines at any time that it lacks subject matter-jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3).

B. Plaintiff's Motion for Attorneys' Fees and Costs

"[A] prevailing plaintiff under an accepted Rule 68 Offer, which provides for the

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award of reasonable attorney's fees, is entitled, under the Rule 68 Offer, to an award of fees in some amount." Miller v. City of Portland, 868 F.3d 846, 850 (9th Cir. 2017). When a plaintiff accepts an Offer of Judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure that explicitly states a cut-off date for recoverable attorneys' fees and costs may not recover attorneys' fees and costs after that cut-off date. See, e.g., Guerrero v. Cummings, 70 F.3d 1111, 1114 (9th Cir. 1995), cert. denied 116 S. Ct. 2549, ___ U.S. ___ ("Even though there may be a post-offer proceeding, the terms of the offer—not the terms of Rule 68—control the cut-off of attorney's fees and costs.").

"Once a party is found eligible for fees, the district court must then determine what fees are reasonable." Klein v. City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 2016) (citation omitted). "To determine the amount of a reasonable fee, district courts typically proceed in two steps: first, courts generally apply the lodestar method to determine what constitutes a reasonable attorney fee; and second, the district court may then adjust the lodestar upward or downward based on a variety of factors, including the degree of success obtained by the plaintiffs." Bravo v. City of Santa Maria, 810 F.3d 659, 665-66 (9th Cir. 2016). The Supreme Court has indicated that the degree of success obtained is "'the most critical factor' in determining the reasonableness of a fee award." Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). "It is an abuse of discretion for the district court to award attorneys' fees without considering the relationship between the 'extent of success' and the amount of the fee award." McGinnis v. Ky. Fried Chicken, 51 F.3d 805, 810 (9th Cir.1994) (quoting Farrar, 506 U.S. at 116).

"The Supreme Court has instructed that the initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate, an approach commonly known as the lodestar method." Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (internal quotations omitted) (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)); see also Hensley, 461 U.S. at 433 ("The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable

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hourly rate."); Christensen v. Stevedoring Servs. of Am, 557 F.3d 1049, 1053 (9th Cir. 2009) (noting that in determining whether an award of attorneys' fees is reasonable, the lodestar method is the fundamental starting point); Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). The party seeking attorneys' fees bears the burden of "submitting evidence of the hours worked," the rate charged, and that "the rate charged is in line with the prevailing market rate of the relevant community." Carson v. Billings Police Dep't., 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation omitted). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433; see also G & G Closed Circuit Events, LLC v. Pacheco, No. 18-cv-00462-BTM-AGS, 2019 U.S. Dist. LEXIS 125110, at *4 (S.D. Cal. Jul. 25, 2019) (Moskowitz, J.) (applying the lodestar method to determine the reasonableness of a motion for fees and costs brought by Mr. Riley on Plaintiff's behalf in a different case).

If the moving party in a fee motion "satisfies its burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee." Intel Corp. v. Terabyte Int'l, Inc., 6 F.3d 614, 622-23 (9th Cir. 1993). However, "[i]n determining the reasonableness of the award, there must be some evidence to support the reasonableness of, inter alia, the billing rate charged, and the number of hours expended." Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056, 1068 (Fed. Cir. 1983). In this regard, courts consider twelve factors:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of 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 results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Hensley, 461 U.S. at 430 n. 3.

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IV. DISCUSSION

A. Plaintiff's Motion to Dismiss for Lack of Subject Matter Jurisdiction

"[A]n issue is moot when deciding it would have no effect within the confines of the case itself." Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009). Here, Defendants' Motions to Dismiss sought to dismiss Defendants' counterclaims, ECF No. 9, but several days later, Defendants voluntarily dismissed those counterclaims, ECF No. 10. Thus, granting Plaintiff's Motion to Dismiss would have no effect within...