DISH NETWORK L.L.C., Plaintiff, v. JADOO TV, INC. et al., Defendants NO. Case No. 2:18-cv-9768-FMO (KSx) United States District Court, C.D. California Signed November 08, 2019 Counsel Timothy M. Frank, Joseph H. Boyle, Pro Hac Vice, Stephen Matthew Ferguson, Pro Hac Vice, Hagan Noll and Boyle LLC, Houston, TX, David A. Van Riper, Van Riper Law, Tustin, CA, for Plaintiff. Darin W. Snyder, Alexander B. Parker, Ashish Sudhakaran, Bill Trac, O'Melveny and Myers LLP, San Francisco, CA, Heidi J. Kim, Nicole Nacpil Daryanani, Mark Punzalan, Chan Punzalan LLP, San Mateo, CA, for Defendants. Stevenson, Karen L., United States Magistrate Judge ORDER GRANTING DISH NETWORK L.L.C.'S MOTION FOR AWARD OF EXPENSES INCURRED IN BRINGING MOTION TO COMPEL SAJID SOHAIL'S PRODUCTION OF DOCUMENTS (DKT. NO. 75) *1 Before the Court is Plaintiff DISH Network L.L.C.’s (“Plaintiff's”) Motion for Expenses Incurred in Bringing Motion to Compel Defendant Sajid Sohail's Production of Documents (the “Fee Motion”). (Dkt. No. 99.) On October 9, 2019, Defendant Sohail filed an Opposition to the Fee Motion. (Dkt. No. 113.) On October 23, 2019, Plaintiff filed a Reply. (Dkt. No. 115.) On October 30, 2019, the Court heard oral argument and took the matter under submission. (Dkt. No. 116.) Plaintiff seeks an award of $20,645.55 in attorneys’ fees and $1,819.87 as reasonable costs incurred in bringing a motion to compel Defendant Sohail's production of documents. Having considered the parties’ moving papers and evidence submitted in connection with the opening brief, opposition, and reply, along with the relevant pleadings and files in this action and the arguments of counsel, for the reasons outlined below, the Court GRANTS the Fee Motion in the amount of $12,046.12. I. INTRODUCTION On August 14, 2019, the Court granted in its entirety Plaintiff's motion to compel Defendant Sojid Sohail to produce documents in his individual possession, custody, and/or control in response to Plaintiff's document requests. (See Dkt. No. 96.) In granting the motion to compel, the Court found Sohail's failure to produce documents in his personal capacity responsive to “Plaintiff's properly served discovery requests” was unjustified and, pursuant to Federal Rule of Civil Procedure Rule 37(a)(5), that an “award of reasonable expenses, including attorneys’ fees, that Plaintiff incurred in bringing the motion [to compel] is warranted.” (Dkt. No. 96 [Order of August 14, 2019 at 9-10].) II. THE PARTIES’ ARGUMENTS a. Plaintiff's Position Plaintiff argues that DISH is entitled to recover its reasonable attorneys’ fees and costs related to the motion to compel because the Court found Sohail's refusal to produce documents unjustified and Sohail had no principled basis to refuse to respond to Plaintiff's discovery requests that sought documents in Sohail's individual capacity despite the bankruptcy filing of Jadoo TV, Inc. (Dkt. No. 99 [Plaintiff's Memorandum of Points and Authorities in Support of [Fee Motion] (“Memo.”) at 2-3].) Plaintiff maintains that the hours expended in bringing the motion to compel are reasonable based upon the time entries submitted with the Declaration of Stephen M. Ferguson (“Ferguson Decl.”), which show a total of 137.2 attorney hours spent in meet and confer communications and conferences related to the motion, drafting the motion to compel and preparing supplemental briefing, but Plaintiff only requests an award for 65.2 of those hours or 47.5% of the total hours expended. (Memo. at 7.) Plaintiff further argues that the hourly rates for its attorneys are commensurate with the range of fees customarily charged for attorneys of similar skill and experience in similar cases in the Los Angeles market. (Memo. at 8; and see Ferguson Decl. ¶¶ 2-8.) Plaintiff represents that in reviewing the time entries concerning the motion to compel, “DISH's counsel reviewed each individual time record from their firm in order to segregate entries that appeared to reflect time partially unrelated to DISH's motion to compel Sohail's production of documents, or that appeared disproportionate to the task.” (Memo. at 10 (citing Ferguson Decl. ¶ 24).) Based on that review, Plaintiff argues that its attorneys “exercised further billing judgment in declining to seek reimbursement for the fees incurred by DISH's counsel's supervising attorney.” (Id.) Plaintiff then calculated the lodestar “by multiplying the reasonable number of hours billed by the reasonable hourly rate of each respective time keeper,” which for the services of one partner and one associate, with a 10% discount applied, results in total requested fees of $20,545.55. (Id.) *2 Plaintiff seeks costs in the amount of $1,819.87 associated with bringing the motion to compel, which includes economy class airfare ($1,192.60), hotel ($447.85), ground transportation ($86.78), food ($63.64), and parking ($29). (Memo. at 11; Ferguson Decl. ¶ 28, Exs. 9-13.) b. Defendant Sohail's Position In his Opposition to the Fee Motion, Sohail largely attempts to re-argue that his failure to respond to Plaintiff's discovery requests and his opposition to the motion to compel were substantially justified based on Jadoo TV's bankruptcy filing and an indemnity agreement between Sohail and Jadoo. (Dkt. No. 113 [Opposition at 2-3].) However, the Court expressly rejected both of these arguments in granting Plaintiff's motion to compel and finding Sohail's failure to produce discovery substantially unjustified. (See Order of August 14, 2019 at 7-9.) Sohail does not present any argument or evidence to establish that either the rates charged by Plaintiff's counsel or the hours requested are unreasonable. (Opposition at 3-4.) Sohail also does not dispute the amount of expenses Plaintiff requests. (Id.) Instead, he argues that Plaintiff's request for fees is not reasonable because “almost all of the fees requested by DISH are directed toward discovery against Jadoo rather than Sohail.” (Id. at 3.) Sohail contends that “[e]very entry listed in the declaration supporting the attorneys’ fees motion above refers to Jadoo and contains no mention of Sohail at all and Dish attempts to use the present motion as an end-run around the stay against Jadoo.” (Id. at 4.) c. Plaintiff's Reply In its reply brief, Plaintiff reiterates that the attorneys’ fees and expenses sought in the Fee Motion are reasonable and argues that Sohail has failed to carry his burden to show otherwise. (Reply at 3.) Plaintiff also contends that after Jadoo TV filed for bankruptcy on May 31, 2019, “DISH”s joint pursuit of Jadoo TV and Sohail therefore became a pursuit of Sohail individually” and Sohail offers no explanation for why he should not be responsible for Plaintiff's costs incurred after May 31, 2019, when Plaintiff was required to file the motion to compel to obtain discovery Sohail was obligated to provide in his individual capacity. (Reply at 2 n.2.) Finally, during oral argument, Plaintiff's counsel explained that Plaintiff initially served identical discovery on Jadoo TV and Sohail, long before Jadoo TV filed its bankruptcy petition, thus Plaintiff's pre-bankruptcy billing records and time entries reflect Plaintiff's efforts to obtain discovery from both named defendants. Further, Plaintiff noted that in its discovery requests and communications, the term “Jadoo” was defined and used to refer to both Jadoo TV and Sohail individually; therefore the billing notations referring only to Jadoo should not be a reason to deny the Fee Motion. III. LEGAL STANDARD A. Rule 37(a)(5) Rule 37(a)(5)(A) provides that when a motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party of attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: *3 (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(a)(5)(A) (emphasis added). Unless one of the exceptions applies, an award of attorney fees and costs is mandatory in cases where, as here, the moving party prevails. See, e.g., Morgan Hill Concerned Parents Assoc. v. Cal. Dep't of Educ., No. 11-cv-3471-KJM (AC), 2016 WL 4375015, at *4 (E.D. Cal. Aug. 17, 2016) (noting mandatory nature of Rule 37(a)(5)(A)); Blair v. CBE Grp., Inc., No. 13-cv-134-MMA-WVG, 2014 WL 4658731, at *3 (S.D. Cal. Sept. 16, 2014) (“[C]ourts have recognized that the primary difference between [Rule 37(a)(5)(A) and Rule 37(a)(5)(C)] is that [Rule 37(a)(5)(A)] requires the payment of costs, where the other grants the court discretion in making such a determination.” (internal quotation marks and citation omitted)). B. Determining Reasonable Attorney Fees 1. Lodestar Approach to Calculate Fee Awards In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court adopted the lodestar method for calculating attorneys’ fee awards. A court determines the lodestar by multiplying the number of hours reasonably expended on a particular motion by a reasonable hourly rate. Id. at 433. “Although the district court's calculation of an award need not be done with precision, some indication of how it arrived at its figures and the amount of the award is necessary.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986). 2. Reasonable Hourly Rate In determining the reasonable hourly rate of the prevailing attorney, the Court must look to the “rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008); see also Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987) (“The prevailing market rate in the community is indicative of a reasonable hourly rate.”). A party seeking attorneys’ fees must provide “satisfactory evidence ... that the requested rates are in line with those prevailing in the community[.]” Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). A declaration regarding the prevailing rate in the relevant community is sufficient to establish a reasonable hourly rate. Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). “When a fee applicant fails to meet its burden of establishing the reasonableness of the requested rates, however, the court may exercise its discretion to determine reasonable hourly rates based on its experience and knowledge of prevailing rates in the community.” Bademyan v. Receivable Mgmt. Servs. Corp., No. 08-cv-519-MMM (RZx), 2009 WL 605789 at *5 (C.D. Cal. Mar. 9, 2009); and see Moreno v. Empire City Subway Co., No. 05-cv-7768-LMM (HBP), 2008 WL 793605, at *7 (S.D.N.Y. Mar. 26, 2008) (stating that if fee applicant “has submitted no evidence of the prevailing market rate for attorneys of like skill ... it is within [the court's] discretion to determine the reasonable hourly rate ... based on [the court's] familiarity with ... prevailing rates in the [relevant community]”). 3. Hours Reasonably Expended *4 In addition to establishing a reasonable hourly rate, a prevailing party in a discovery dispute seeking attorneys’ fees “bears the burden of proving that the fees and costs taxed are ... reasonably necessary to achieve the result obtained.” Rucker v. Air Ventures, Hawaii, LLC, No. 16-cv-492-HG (KSC), 2017 WL 4158201, at *3 (D. Haw. Sept. 19, 2017) (citing Tirona v. State Farm Mut. Auto Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993)). The court reviews time records submitted by the applicant to determine whether the hours were reasonably incurred or if “any of the hours were unnecessary, duplicative or excessive,” or inadequately documented. True Health Chiropractic, Inc. v. McKesson Corp., No. 13-cv-02219-HSG (DMR), 2015 WL 3453459, at *1 (N.D. Cal. May 29, 2015) (internal citation omitted). IV. DISCUSSION As noted, to calculate the lodestar, the Court must determine a reasonable fee by multiplying the “number of hours reasonably expended” by a “reasonable hourly rate.” Hensley, 461 U.S. at 433; Morales v. City of San Rafael, 96 F.3d 359, 363-65 (9th Cir. 1996). A. Plaintiff's Attorney Billing Rates Were Reasonable As an initial matter, the Court finds that hourly rates charged by Plaintiff's counsel—$375/hour for one Partner and $280/hour for one Associate— are well within the range for attorneys of similar skill and experience in the Los Angeles legal market. Sohail presents no evidence or argument to the contrary. This conclusion is well supported by the Declaration of Stephen M. Ferguson. (See Ferguson Decl. ¶¶ 3-6.) Indeed, courts in this district have found significantly higher hourly rates to be reasonable in copyright infringement actions in Los Angeles. See, e.g., Range Road Music, Inc. v E. Coast Foods, Inc., No. 09-cv-2059-CAS (AGRx), 2010 WL 11596747, at *2-*3 (C.D. Cal. May 5, 2010) (finding hourly rate of $657 for a partner, $400.50 to $441 for a mid-level associate, and $360 for junior associate reasonable in Los Angeles for a copyright infringement action); Perfect 10, Inc. v. Giganews, Inc., No. 11-cv-7098-AB (SHx), 2015 WL 1746484, at *15-*16 (C.D. Cal. Mar. 24, 2015) (finding billing rates in copyright infringement action of $750-930 per hour for senior partner, $610-$750 for junior partner, and $350-$690 for associates reasonable and comparable to prevailing Los Angeles market rates for attorneys of similarly experience, skill, and reputation). B. The Total Hours Billed for the Motion to Compel Are Not Entirely Reasonable Plaintiff seeks an award for 65.2 total attorney hours billed in “bringing the motion to compel.” (Memo. at 7; Ferguson Decl. ¶ 22, Ex. 7.) In arguing that this figure is “reasonable,” Plaintiff represents that this is only 47.5% of the total hours actually expended and the actual total attorney time involved was 137.2 hours. (Id.) Rule 37(a)(5)(A) refers to “reasonable expenses incurred in making the motion.” FED. R. CIV. P. 37(a)(5)(A). Courts in this district have reasoned that this language does not include time spent by counsel in meet and confer efforts as compensable under Rule 37(a)(5)(A). Pythagoras Intellectual Holdings, LLC v. Stegall, No. 08-cv-87-AG (RNBx) 2009 WL 10674788, at *2 (C.D. Cal. Feb. 25, 2009) (“Pythagoras”) (declining to “construe this language [of Rule 35(a)(5)(A) ] as necessarily including attorney time expended during the meet and confer process.”); Berryhill v. Johnson, No. 11-cv-1468-AG (RNBx), 2012 WL 13020328, at *2 (“[U]nder the Court's construction of Rule 37(a)(5)(A), the time expended by plaintiff's counsel in connection with his meet and confer efforts is not compensable. Rather, only the time expended ... in actually preparing the moving papers here is compensable[.]”). *5 Both Plaintiff's 137.2 “total hours” and the lesser 65.2 “requested hours” raise concerns regarding the “reasonableness” of the total attorney hours for which Plaintiff seeks to recover. This was a straightforward discovery motion involving a single party and a straightforward set of discovery requests to which Sohail refused to search for or produce any documents. Thus, in bringing the motion to compel, Plaintiff did not need to parse individual requests or address individualized objections to those requests from Sohail. Rather, the motion to compel addressed and was resolved primarily on two overarching issues of law, i.e., whether the Jadoo TV bankruptcy stay precluded Sohail from responding to discovery in his own right and whether an indemnity agreement between Jadoo TV and Sohail precluded the same discovery. (See Dkt. No. 96 [Order of August 14, 2019 at 7-9].) Notwithstanding Sohail's obstinance in refusing to produce documents over several months prior to the motion to compel, it does not seem reasonable to the Court that 65.2 attorney hours (reduced from 137.2 hours) were required by seasoned litigation counsel to prepare and argue the motion to compel. The chart submitted with the Fee Motion indicates that a significant portion of the 65.2 “requested hours” for which Plaintiff seeks an award of fees, involved general discovery tasks that were not directly related filing the motion to compel. This includes 11.6 “requested hours” for “meet & confer & prep”; 8.2 “requested hours” for “Drafted Meet & Confer Letter”; 8.7 “requested hours” for “Attend[ ] Conferences/Hearing & Prep”; and 8.5 hours for “Drafted Request for pre-motion conference & Discovery Statute Report.” (Memo. at 7.) Together, these hours comprise more than fifty-six percent (56%) of the 65.2 “Requested Hours.” The Court has conducted a thorough review of the specific time entries in the billing records submitted with the Fee Motion. Those records indicate that Plaintiff seeks reimbursement for 33.2 hours that Mr. Ferguson expended on general discovery tasks including meet and confer conferences and communications before Plaintiff filed the motion to compel. (See Ferguson Decl., Ex. 7.) These time entries for Mr. Ferguson include: 3.7 hours on 04/05/19 for “meet and confer on DISH's interrogatories and requests for production and confer attorneys concerning same and draft meet and confer letter on same; 2 hours on 04/05/19 to “prepare for meet and confer on DISH's interrogatories and requests for production”; 2 hours on 04/08/2019 for “Continuation of meet and confer on DISH's interrogatories, requests for production and Jadoo's meet and confer on dealer subpoenas, confer with attorneys regarding same”; 1.2 hours on 04/10/2019 to “Review and revise follow up to Meet and Confer letter”; 4 hours on 04/11/2019 to “Draft and revise follow up to Meet and Confer letter”; 3 hours on 04/12/2019 to “Draft and revise follow up to Meet and Confer letter; draft emails to opposing counsel and attorneys regarding same”; 1.4 hours on 04/15/2019 for “Follow up meet and confer with Jadoo's counsel regarding eMedia requests and indemnification and attorneys fees request; prepare for same”; 1.9 hours on 04/16/2019 for “Continuation of follow up meet and confer with Jadoo's counsel concerning issues of eMedia and indemnification and attorneys fees with defendants/resellers; confer with attorneys regarding same; revise draft request for pre-motion conference pursuant to same”; 1.4 hours on 04/16/2019 to “Draft and revise correspondence to court regarding request for pre-motion conference on discovery disputes; confer with attorneys regarding same”; 0.7 hours on 04/17/2019 to “Review and analyze Jadoo's revised position regarding eMedia documents in request for pre-motion conference with Court; draft email to attorneys regarding same; draft email to magistrate's courtroom deputy concerning same”; 1 hour on 04/23/2019 to “Prepare for pre motion conference on requests for production concerning eMedia; draft outline for same”; 0.7 hours on 04/23/2019 to “Attend pre motion phone conference with Court on requests for production concerning eMedia; confer with attorneys regarding same”; 1.7 hours on 04/29/2019 to “Prepare for and attend court mandated meet and confer on issue of eMedia; review and analyze proposal from JadooTV concerning same”; 0.6 hours on 04/30/2019 for “Follow up meet and confer concerning eMedia and outstanding issues; prepare for same; confer with attorneys regarding same”; 4 hours on 05/01/2019 to “Draft joint report on discovery; emedia; legal research for same; revise same pursuant to attorney feedback; draft emails to attorneys and Jadoo's concerning same”; 2.4 hours on 05/03/2019 to “Revise Jadoo's draft of joint discovery status report; draft and respond to emails from attorneys regarding same; draft email to Jadoo's counsel regarding same”; 0.5 hours on 05/09/2019 for “Follow up hearing on eMedia discovery; confer with attorneys regarding same”; and 1 hour on 05/09/2019 to “Prepare for follow up hearing on eMedia discovery; review joint stip and transcript from previous hearing on same.” *6 The reasoning in Pythagoras and Berryhill, while not binding on this Court, are persuasive. Particularly where in Pythagoras, the court noted the distinction between Rule 37(a)(5)(A)’s language, which permits a successful moving party to recover “reasonable expenses incurred in making the motion” and Rule 37(d)(3), which entitles a successful movant to recover “its reasonable expenses, including attorney's fees,” caused by the failure of another party to attend a deposition, service answers to interrogatories, or respond to documents requests. Pythagoras, 2009 WL 10374788, at *2. Here, Plaintiff brings its Fee Motion pursuant to Rule 37(a)(5)(A). (Memo. at 1.) Accordingly, the Court finds that the 33.2 attorney hours expended by Mr. Ferguson in meet and confer communications and conferences, while necessary to the overall pursuit of discovery in the case, are not compensable as hours reasonably spent in preparing the actual motion to compel. The Court, therefore, declines to award fees under Rule 37(a)(5)(A) for the 33.2 hours of Mr. Ferguson's time and reduces the total “reasonable attorney hours” accordingly to result in a total compensable hours for Mr. Ferguson of 16.1 hours rather than 49.3. C. Calculating the Lodestar Applying the lodestar method using the reduced attorney hours as outlined above, the Court multiplies the reasonable attorney rates by the hours reasonably billed in bringing the motion to compel as follows: Defendant does not dispute the reasonableness of Plaintiff's request for $1,819.87 in expenses associated with bringing the motion to compel. (See Opposition at 3-4.) This figure, plus reasonable attorneys’ fees as determined by the Court of $10,226.25 results in a total award to Plaintiff of $12,046.12 for the reasonable costs incurred in bringing the motion to compel. FED. R. CIV. P. 37(a)(5)(A). Accordingly, for the reasons outlined above, Plaintiff's Fee Motion is GRANTED in the amount of $12,046.12. Defendant Sohail shall pay this fee award to Plaintiff's counsel within fourteen (14) days of the date of this Order.