United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
has filed a Motion for Costs and Attorney Fees (Filing No.
18) in this signal-piracy case brought on behalf of a
commercial domestic distributor of a televised fight. After
the court's entry of a default judgment (Filing No. 17)
for Defendants' violation of 47 U.S.C. § 605,
Plaintiff requests $3, 840.00 in attorneys' fees for
17.20 hours of work (Filing No. 18-2 at CM/ECF p. 9), costs
in the amount of $750.52 (Filing No. 18-2 at CM/ECF p. 9),
and investigative costs in the amount of $625.00 (Filing No.
18-2 at CM/ECF p. 11).
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.” “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 hourly rate.” Miller v. Dugan, 764
F.3d 826, 830-31 (8th Cir. 2014) (internal citations omitted)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433,
437 (1983)); see also Fish v. St. Cloud State Univ.,
295 F.3d 849, 851 (8th Cir. 2002) (“The starting point
in determining attorney fees is the lodestar, which is
calculated by multiplying the number of hours reasonably
expended by the reasonable hourly rates.”). The
marketplace is the district court's guide in determining
what constitutes a “reasonable” hourly rate,
along with the court's own knowledge of prevailing market
rates. Missouri v. Jenkins, 491 U.S. 274, 285
(1989); Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.
2005) (“When determining reasonable hourly rates,
district courts may rely on their own experience and
knowledge of prevailing market rates.”).
requests reimbursement for 17.20 hours of work performed by
lead counsel at a rate of $500.00 per hour, an administrative
assistant at $100.00 per hour, and a research attorney at
$300.00 per hour. (Filing No. 18-2 at CM/ECF p. 2.) Counsel,
whose office is in California, admits that “the rates
charged by Plaintiff's counsel are somewhat higher than
the prevailing rates in this district, ” but such rates
are justified because of “counsel's particular
experience” in cases involving piracy of commercial
signals. (Filing No. 18-1 at CM/ECF p. 3; Filing No. 18-2 at
CM/ECF p. 3.)
this case may have involved a unique area of the law, this
case “did not involve any degree of complexity and
required no exceptional level of expertise.”
J&J Sports Productions, Inc. v. Palomares, 2018
WL 6250607, at *1 (D. Neb. Nov. 29, 2018) (same lawyer
representing same plaintiff in same market in same type of
case). In addition, Plaintiff failed to support his claimed
hourly rates with affidavits from attorneys with comparable
experience in the Omaha/Lincoln, Nebraska, area establishing
that Plaintiff's requested rates are reasonable in this
market for this type of case. See NECivR 54.4(c)
(“attorneys must file affidavits or other evidence in
support of claimed hourly rates and hours”).
Palomares, the attorneys involved in this case have
approximately 25 years of experience, the Defendants failed
to appear, boilerplate pleadings and briefing could be used,
“and this case was, overall, routine.”
Palomares, 2018 WL 6250607, at *2. Accordingly, and
as in Palomares, the court will award Plaintiff
attorney fees for the requested amount of hours worked
(17.2), but at the low end of the prevailing market rate for
the Omaha/Lincoln, Nebraska, area as follows: $225 per hour
for 2.55 hours of attorney services provided by Thomas P.
Riley; $175 per hour for 5.5 hours of research-attorney
services; and $50 per hour for 9.15 hours of
administrative-assistant services. Based on this adjusted rate,
Plaintiff is entitled to recover attorney fees in the amount
of $1, 993.75. Palomares, 2018 WL 6250607, at *2;
J & J Sports Prods., Inc. v. Argueta, No.
5:15-CV-05200, 2017 WL 628299, at *2 (W.D. Ark. Feb. 15,
2017) (same plaintiff's request for $19, 621.95 in
attorney fees and costs for 23.45 hours of work in similar
case at same hourly rates was “unreasonable considering
its limited success and the ‘cumulative, boilerplate
nature of Cable Act cases'” (quoting J&J
Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648
F.Supp.2d 469, 475 (E.D.N.Y. 2009)). See also Petrone v.
Werner Enterprises, Inc., No. 8:11CV401, 2018 WL 816250,
at *6 (D. Neb. Feb. 9, 2018), order clarified on other
grounds, No. 8:11CV401, 2018 WL 2049838 (D. Neb. Apr.
25, 2018) (“This Court has generally approved rates of
between $225-$325/hour for partners with less than 25 years
of experience and rates of $175-$200 for work done by
associates.”); Henggeler v. Brumbaugh &
Quandahl, P.C., No. 8:11CV334, 2014 WL 793544, at *4 (D.
Neb. Feb. 26, 2014) (awarding $325 per hour to attorney with
41 years of experience); Doe v. Neb. State Patrol,
No. 8:09cv456, 2012 WL 6681855 at *22-24 (D. Neb. Dec. 21,
2012) (collecting cases to conclude fees between $200 to $300
to be a reasonable market rate in Nebraska).
seeks to recover the $400.00 filing fee already taxed by the
Clerk of Court, as well as $146.58 in courier charges,
$29.74 in photocopies, $9.20 for certificates of good
standing, $100.00 for pro hac vice admission fees,
and $65.00 for service-of-process fees-a total of $750.52.
(Filing No. 18-2 at CM/ECF p. 9.) Plaintiff also requests
$625.00 for investigative expenses. (Filing No. 18-2 at
CM/ECF p. 11.) Plaintiff has failed to provide documentation
supporting any of these charges other than an invoice
containing large blank sections where information apparently
has been redacted showing payment due for the services of
Matt Brown of Red Rock Investigations in the amount of
$625.00 (Filing No. 18-2 at CM/ECF p. 11) and a
“Statement of Services” apparently provided by a
detective agency in Omaha, Nebraska, for service of process
on Defendant Angela R. Cotton (Filing No. 18-2 at CM/ECF p.
is entitled to “full costs” under 47 U.S.C.
§ 605(e)(3)(B)(iii). Some courts in this circuit have
interpreted this provision to mean only “taxable costs,
” which the Clerk of Court has already awarded in this
case. Palomares, 2018 WL 6250607, at *2;
Argueta, 2017 WL 628299, at *3. Regardless of the
“taxable” nature of the requested costs, this
court's fee-application guidelines require that
sought-after expenses be identified “with
particularity.” For instance, “[f]or photocopies,
state the items copied, why they were copied, how they were
used, and the number of pages copied.” NECivR 54.4(b).
Finally, “‘[a]n attorney fee that includes as a
component some of the expenses of the attorney is authorized
under the lodestar method, but only to the extent that such
expenses would normally be paid by fee-paying clients as a
part of an attorney fee in the relevant market.'”
Doe, 2012 WL 6681855, at *8 (quoting Sirois v.
Superior Pub. Co., Inc., No. 4:04CV3064, 2005 WL
1459388, at *2 (D. Neb. June 20, 2005) (Kopf, J.)). Other
than listing the requested costs at the bottom of
counsel's itemized record of time spent on various tasks
related to this case (Filing No. 18-2 at CM/ECF p. 9),
Plaintiff's counsel fails to explain such costs
“with particularity” and has neglected to file
any evidence establishing that such expenses would normally
be paid by fee-paying clients as part of attorneys' fees
in the Omaha/Lincoln, Nebraska, market.
regard to Plaintiff's request for investigative fees,
district courts in this circuit have refused to award such
fees when the applicant failed to include details regarding
the fee sought, such as the amount of time necessary for the
investigation, how much the investigator charged per hour,
and why the investigator was qualified to demand the
requested rate. Palomares, 2018 WL 6250607, at *2
(assuming, but not deciding, that investigative costs are
recoverable under § 605(e)(3)(B)(iii), but refusing to
award such costs when plaintiff provided no evidence
regarding investigator's hourly rate, amount of time
spent on investigation, and investigator's
qualifications, thus providing the court “no way of
determining whether the amount J&J requested is
reasonable”); Argueta, 2017 WL 628299, at *3
(“The Court does not believe ‘full costs' [in
§ 605(e)(3)(B)(iii)] extends to the $650.00
investigative fee, ” but even if it did, “Because
J & J's attorney has not provided any details
regarding the $650.00 investigative fee sought, the Court
denies its recovery. The Court also denies J & J costs
for being admitted to this Court pro hac vice.”).
Plaintiff has provided none of this information.
I shall deny Plaintiff's request to recover $400.00 in
filing-fee expenses because this amount has already been
taxed by the Clerk of Court. I shall also deny the remainder
of Plaintiff's requested costs due to lack of detail,
supporting documentation, and evidence that the requested
costs are normally paid by fee-paying clients in this market,
without which it is impossible for the court to decide
whether such costs are reasonable. Palomares, 2018
WL 6250607, at *2; Argueta, 2017 WL 628299, at *3;
Doe, 2012 WL 6681855, at *8.
1. Plaintiff's Motion for Costs and Attorney Fees (Filing
No. 18) is granted in part and denied in part as follows:
pursuant to 47 U.S.C. § 605(e)(3)(B)(iii), Plaintiff is
awarded total attorneys' fees against Defendants in the
amount of $1, ...