United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY UNITED STATES DISTRICT COURT.
Plaintiff, North America Van Lines, Inc., obtained a default
judgment in its favor against the Defendants, North American
Prime Inc. and Ean Manning. (12/3/18 Opinion and Order, ECF
No. 41.) The relief awarded in the final judgment is to
include reasonable attorney fees and costs. The specific
amount of attorney fees and costs has not yet been
determined. On December 17, 2018, the Plaintiff filed its
Brief in Support of Attorneys' Fees and Costs [ECF No.
42] with supporting documentation. This Opinion and Order
determines the reasonable fees and recoverable costs.
an action for willful federal trademark infringement and
cybersquatting under the Anticybersquatting Consumer
Protection Act (ACPA), 15 U.S.C. § 1125 et
seq., and common law unfair competition. The Court has
awarded the Plaintiff statutory damages in the amount of $2,
000, 000 for trademark counterfeiting pursuant to 15 U.S.C.
§ 1117(c)(2), and $100, 000 for cybersquatting pursuant
to 15 U.S.C. § 1117(d). In addition, the Plaintiffs have
obtained injunctive and equitable relief preventing the
Defendants from using certain domain names in connection with
goods or services of the type offered by the Plaintiff or
redirecting internet traffic from the Plaintiff.
15 U.S.C. § 1117, trademark infringement plaintiffs may
recover “the costs of the action, ” and
“[t]he court in exceptional cases may award reasonable
attorney fees to the prevailing party.” 15 U.S.C.
§ 1117(a). The award of costs is made as a matter of
course. Id.; Fed.R.Civ.P. 54(d)(1). The decision to
award attorney fees is left to the Court's discretion.
TE-TA-MA Truth Found.-Family of URI, Inc. v. World Church
of the Creator, 392 F.3d 248, 257 (7th Cir. 2004).
Willful infringement on the part of defendants is one way in
which a case may be “exceptional” for the purpose
of awarding attorney fees. NCAA v. Kizzang LLC, 304
F.Supp.3d 800, 813 (S.D. Ind. 2018) (citing MetroPCS v.
Devor, 215 F.Supp.3d 626, 638 (N.D. Ill. 2016)).
Court has already determined that the Defendants willfully
infringed on the Plaintiff's marks. In addition, although
the Plaintiff filed a Motion to Enter Consent Judgment after
the parties signed a settlement, the Plaintiff was forced to
withdraw the Motion after the Defendants failed to enter
appearances in this case as directed by the Court. The
Plaintiff sought default instead but was delayed by Defendant
Manning's evasion of service. For these reasons, the
Court has determined that this is an exceptional case for
which the Plaintiff may be awarded reasonable attorney fees.
determine a reasonable fee award under a fee-shifting
statute, a court relies on the “lodestar method.”
See, e.g., Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 551 (2010). The lodestar is the product of the
hours reasonably expended on the case multiplied by a
reasonably hourly rate. Johnson v. GDF, Inc., 668
F.3d 927, 929 (7th Cir. 2012) (citing Pickett v. Sheridan
Health Care, 664 F.3d 632, 640-43 (7th Cir. 2011)). The
movant bears the burden of proving that the requested hourly
rate is reasonable and “in line with those prevailing
in the community.” Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632, 640 (7th Cir. 2011).
Plaintiff asserts that $44, 865.00 of fees were expended in
the prosecution of this action based on 117.0 hours of
attorney time. Additionally, $6, 044.83 of costs were
incurred. In support of its request that these amounts be
awarded in full, the Plaintiffs provide the Declaration of
Bryan P. Sugar, a partner in the law firm of Lewis Brisbois
Bisgaard & Smith, and the lead attorney for the Plaintiff
in this litigation. Exhibits to the Declaration include the
attorney summary reports for each attorney who performed work
in the case showing the date, hours spent, and description of
services. A separate exhibit shows the summary of all
disbursements for costs.
Court must make a determination regarding (1) the number of
hours reasonably expended by the Plaintiff's counsel, (2)
the reasonable hourly rate for those services, and (3) costs.
Johnson, 668 F.3d at 931 (first citing Anderson
v. AB Painting & Sandblasting Inc., 578 F.3d 542,
544 (7th Cir. 2009); then citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)).
Hours Reasonably Expended
billed time includes, but is not limited to, investigating,
drafting the complaint, attempting to communicate with and
serve the Defendants, negotiating the settlement, drafting
status reports directed by the Court, drafting the Motion for
Entry of Default and the Motion for Default Judgment, and
making related court appearances. In Attorney Sugar's
professional opinion, the services that counsel performed and
the number of hours spent are reasonable considering the
nature of the services and results achieved.
Court has reviewed the time diaries and largely agrees, but
with some exceptions. For example, on May 1, 2018, Attorney
Mary Smigielski recorded 1.70 hours for time related to an
order entered by a judge who was not involved in this matter.
There is no explanation of how that time is related to this
litigation. Notably, although the time was recorded, it was
not billed to the Plaintiff. The same holds true for other
entries by Attorney Smigielski. The Court's review of the
time diaries suggests that Attorney Smigielski did not
invoice 11.8 hours of her otherwise billable time, and that
this was most likely because it was duplicative of efforts
made by other attorneys who were also billing time in this
case. In total, five partner and four associates billed time
in this matter.
Attorney Smigieski, Attorney Sugar did not bill all of his
time to the Plaintiff; he excluded 3.5 hours. Two of the four
associates who recorded billable hours did not have their
work, totaling 8.1 hours, billed to the Plaintiff at all.
Perhaps the Plaintiff, in addition to negotiating the hourly
rate for Attorneys Sugar and Smigielski (see below),
negotiated how many lawyers it would pay to work on the case
or on a particular task. The Plaintiff's Brief in Support
of Attorneys' Fees and Costs does not say.
Court has an obligation to exclude from the lodestar
calculation hours that were not “reasonably
expended” on the litigation. Hensley, 461 U.S.
at 434. The Defendants are not required to pay for hours that
are “excessive, redundant, or otherwise
unnecessary.” Id. Based on its review of the
time diaries, the Court finds that it is reasonable to
conclude that the unbilled time falls within this category,
and that the time actually invoiced is a better
representation of the “billing judgment” that the
lodestar is intended to capture. Cf. Perdue, ...