Opinion
21-CV-2198 (JMF) (JLC)
12-15-2021
GIANNIS ANTETOKOUNMPO, Plaintiff, v. JACK COSTANTINO, et al., Defendants.
Honorable Jesse M. Furman, United States District Judge.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Giannis Antetokounmpo brought this action against Defendants Sherrie Richardson-Miller and Jordan Reyes seeking, inter alia, monetary and injunctive relief for claims under the Lanham Act and related common law claims, including unfair competition, unjust enrichment, and violation of the right of publicity. Richardson-Miller and Reyes did not appear in the action or respond to the Complaint. Accordingly, the Court granted a default judgment against them on July 16, 2021, and this case was subsequently referred to me to conduct an inquest into damages. As relief against Defendants, Antetokounmpo seeks only his attorneys' fees and costs with respect to his Lanham Act claims. For the reasons set forth below, I recommend that Richardson-Miller and Reyes be held liable for $11,304.40 in attorneys' fees and costs.
Antetokounmpo initially named the following nine Defendants in this action: Jack Costantino, Christian Small, Sherrie Richardson-Miller, Jordan Reyes, Jackson Sparks, Matthew Luhm, Ryan Biddle, Laikiesha Williams, and Tyler Buckle. However, Antetokounmpo voluntarily dismissed his claims against Defendants Williams and Costantino, Dkt. Nos. 48, 75, and the parties entered stipulations of dismissal with respect to Defendants Sparks, Luhm, Biddle, Small, and Buckle. Dkt. Nos. 39, 41, 50, 52, 58. Therefore, Richardson-Miller and Reyes are the only remaining defendants in this action.
I. BACKGROUND
A. Facts
The following facts, which are drawn from a review of Antetokounmpo's pleadings and submissions related to this inquest, “are deemed established for the purpose of determining the damages to which [he is] entitled.” Salazar v. 203 Lena Inc., No. 16-CV-7743 (VB) (JLC), 2020 WL 5627118, at *1 (S.D.N.Y. Sept. 18, 2020) (citing City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”)), adopted by 2020 WL 6257158 (Oct. 23, 2020); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendants'] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in [his] favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
Plaintiff Giannis Antetokounmpo is a successful and well-known professional basketball player who has been playing for the Milwaukee Bucks in the National Basketball Association (“NBA”) since 2013. Complaint (“Compl.”), Dkt. No. 1, ¶¶ 3, 17. Antetokounmpo was awarded the NBA's Most Valuable Player Award in 2019 and 2020, and he won the NBA's Defensive Player of the Year Award in 2020. Id. ¶¶ 3, 16-17. Antetokounmpo is widely known both by his name and his nickname, the “Greek Freak, ” which he has registered as a trademark. Id. ¶ 4; see Plaintiff's Inquest Memorandum of Law (“Pl. Mem.”) Ex. 1, Dkt. No. 100-1. Antetokounmpo has granted licenses to third parties to sell products bearing his name, likeness, and trademarks. Compl. ¶¶ 4-5, 31. Antetokounmpo alleges that his name, nickname, and likeness have become invaluable assets as a result of his professional achievements and widespread popularity, and he claims that he has expended substantial time, money, and resources developing and promoting a variety of products with which he is associated. Id. ¶¶ 6, 28-32. He further contends that his licensed products are distinguishable from competitors' products due to his endorsement and his products' “superior design and quality.” Id. ¶ 32.
Notwithstanding Antetokounmpo's trademark rights, Defendants Sherrie Richardson-Miller (d/b/a ThingsToMakeYaSmile) and Jordan Reyes (d/b/a All-Star High d/b/a Us Against The World d/b/a JordansSecretStuff) (“Defendants”) are alleged to have advertised and sold products bearing Antetokounmpo's name and likeness on various online platforms, including Redbubble.com, Etsy.com, Allstarhigh.com, and Usagainsttheworld.com, targeting consumers in the United States and elsewhere. Id. ¶¶ 14, 33-35; Compl. Ex. B, Dkt. No. 1-2, at 6, 9. Specifically, Defendants allegedly placed Antetokounmpo's name and likeness on prints, jerseys, phone cases, apparel, iPad cases, acrylic blocks, clocks, mugs, pillows, tote bags, notebooks, greeting cards, scarves, water bottles, shower curtains, and drug paraphernalia without proper source-identifying information. Compl. ¶ 48. Upon learning of their use of his name and likeness, Antetokounmpo, through his attorneys, sent cease-and-desist letters demanding that Defendants stop selling products using his likeness, name, and the trademarks “GREEK FREAK” and “GREEK FR34K.” Id. ¶¶ 9, 38-39; Compl. Ex. B. He also requested an accounting of all profits made through the sale of counterfeit products. Compl. ¶¶ 8, 38-39; Compl. Ex. B at 7, 10. Antetokounmpo alleges that his letters alerted Defendants of his exclusive rights to the use of his name, likeness, and registered trademarks. Compl. ¶¶ 38-39; Compl. Ex. B at 6-7, 9-10. Antetokounmpo further alleges that Defendants' sale of counterfeit products demonstrates their intent to profit from his success by misleading, confusing, and deceiving consumers who believe they are purchasing products associated with or endorsed by him. Compl. ¶¶ 49-50. Despite receiving Antetokounmpo's cease-and-desist letters, Defendants did not surrender the counterfeit inventory and took no action to ensure that Antetokounmpo would be compensated for the damages he incurred. Id. ¶ 10. Although Reyes responded to the cease-and-desist letter and agreed to remove products bearing Antetokounmpo's name and likeness from his online listings, Pl. Mem. Ex. 5, Dkt. No. 100-5, he “failed to enter into a settlement agreement with [Antetokounmpo] or provide any proof that he disposed of the infringing inventory, ” and he did not respond to subsequent correspondence pertaining to this action. Declaration of Eleni Melekou dated September 24, 2021 (“Melekou Decl.”), Dkt. No. 101, ¶ 43.
B. Procedural History
Antetokounmpo commenced this action seeking monetary and injunctive relief on March 12, 2021. Compl. ¶ 11. The Complaint sets forth the following causes of action: (1) false designation of origin and false endorsement under the Lanham Act (¶¶ 51-57); (2) deceptive acts and practices in violation of New York General Business Law (¶¶58-62); (3) common law unfair competition (¶¶63-67); (4) unjust enrichment (¶¶ 68-70); (5) tortious interference with prospective economic advantage (¶¶ 71-74); (6) conspiracy and concert of action (¶¶ 75-77); and (7) violation of right of publicity under New York Civil Rights Law (¶¶ 78-81).
Defendants did not appear in this action or respond to the Complaint, and the Court entered a default judgment in Antetokounmpo's favor against both Defendants on July 16, 2021. Dkt. Nos. 91, 92. On the same date, this case was referred to me for a damages inquest, Dkt. No. 93, and I issued an order directing Antetokounmpo to submit proposed findings of fact and conclusions of law tying his damages figures to his legal claims. Dkt. No. 94. On September 24, 2021, Antetokounmpo submitted his inquest papers, Dkt. Nos. 100-101, in which he requested only legal fees and costs in the amount of $15,027.20.
In his inquest papers, Antetokounmpo also requested a permanent injunction in addition to attorneys' fees and costs. Pl. Mem., Dkt. No. 100, at 21-22. However, because the Court has already issued a permanent injunction against Defendants, Dkt. No. 92, no further discussion of injunctive relief is warranted here.
II. DISCUSSION
A. Legal Standard
Although a default is an admission of all well-pleaded allegations against the defaulting party, “a court is still ‘required to determine whether the plaintiff's allegations establish the defendant's liability as a matter of law.'” Bolivar v. FIT Int'l Grp. Corp., No. 12-CV-781 (PGG) (DF), 2017 WL 11473766, at *13 (S.D.N.Y. Mar. 16, 2017) (quoting Mickalis Pawn Shop, 645 F.3d at 137), adopted by 2019 WL 4565067 (Sept. 20, 2019); see also Zhen Ming Chen v. Y Cafe Ave B Inc., No. 18-CV-4193 (JPO), 2019 WL 2324567, at *1 (S.D.N.Y. May 30, 2019) (“[B]ecause a party in default does not admit conclusions of law, the Court must determine whether those allegations establish a sound legal basis for liability.”). The court “must still scrutinize the plaintiff's pleadings and find the claims sufficiently pleaded.” Related Companies, L.P. v. Ruthling, No. 17-CV-4175 (JSR) (DF), 2019 WL 10947100, at *3 (S.D.N.Y. July 23, 2019). In determining liability from default, the non-defaulting party is “entitled to all reasonable inferences from the evidence offered.” Mun. Credit Union v. Queens Auto Mall, Inc., 126 F.Supp.3d 290, 295 (E.D.N.Y. 2015) (quoting Au Bon Pain, 653 F.2d at 66). Once liability has been established, the only remaining issue before the Court is “whether the plaintiff has provided adequate support for the relief [he] seeks.” Bleecker v. Zetian Sys., Inc., No. 12-CV-2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013) (quoting Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997)); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.”).
Establishing the appropriate amount of damages involves two steps: “(1) ‘determining the proper rule for calculating damages on . . . a claim'; and (2) ‘assessing plaintiff's evidence supporting the damages to be determined under this rule.'” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *4 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must submit “sufficient evidence, in the form of detailed affidavits and other documentary materials to enable the district court to ‘establish damages with reasonable certainty.'” Nat'l Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatlantic Marine Claims Agency, 109 F.3d at 111) (internal citations omitted); see also Fed. R. Civ. P. 55(b)(2). Although Rule 55 of the Federal Rules of Civil Procedure allows the Court to conduct hearings to determine damages, no such hearing is mandatory. See Cement & Concrete Corkers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012).
As a threshold matter, there does not appear to be any question that this Court has personal jurisdiction over Defendants. Off-White LLC v. 5HK5584 , No. 19-CV-672 (RA) (JLC), 2020 WL 1646692, at *4 (S.D.N.Y. Apr. 3, 2020), adopted by 2020 WL 3050552 (June 8, 2020); see also Hood v. Ascent Med. Corp., No. 13-CV-628 (RWS) (DF), 2016 WL 1366920, at *6 (S.D.N.Y. Mar. 3, 2016) (“Where a plaintiff's filings raise questions as to whether a district court may permissibly exercise personal jurisdiction over a non-appearing defendant, the court may consider sua sponte whether the plaintiff has set forth facts justifying the assertion of personal jurisdiction”), adopted by 2016 WL 3453656 (June 20, 2016). For the reasons set forth in the Declaration of Eleni Melekou, this Court has personal jurisdiction over Defendants in this action. See Melekou Decl. ¶¶ 3-6; Pl. Mem. at 8-9.
B. Analysis
Antetokounmpo contends that he is entitled to recover reasonable attorneys' fees and costs from Defendants pursuant to the Lanham Act, which allows a prevailing plaintiff to recover costs and, in “exceptional cases, ” reasonable attorneys' fees. 15 U.S.C. § 1117(a). Accordingly, the Court will first determine whether Antetokounmpo has sufficiently alleged a claim under the Lanham Act.
Although the Court issued a permanent injunction, it did not make findings regarding whether Antetokounmpo has demonstrated “actual success on the merits” with respect to his Lanham Act claim. Mun. Credit Union, 126 F.Supp.3d at 299. Therefore, out of an abundance of caution, even though courts have held that a plaintiff has “established success on the merits due to [a] defendant['s] default, ” id., I will first assess the sufficiency of Antetokounmpo's allegations before addressing his request for attorneys' fees and costs.
1. Lanham Act Claims
a. False Designation of Origin and False Endorsement
To establish a claim for trademark infringement or false designation of origin under Section 43(a) of the Lanham Act, a plaintiff must establish that “(1) [he] has a valid mark that is entitled to protection under the Lanham Act; and that (2) the defendant used the mark, (3) in commerce, (4) in connection with the sale . . . or advertising of goods or services, (5), without the plaintiff's consent.” Pablo Chavez v. Brit. Broad. Corp., No. 17-CV-9572 (JGK), 2019 WL 2250446, at *4, 6 (S.D.N.Y. May 23, 2019) (citations omitted). In addition, “the plaintiff must show that defendant's use of that mark is likely to cause confusion . . . as to the affiliation, connection, or association of [the defendant] with [the plaintiff], or as to the origin, sponsorship, or approval of [the defendant's] goods, services, or commercial activities by [the plaintiff].” 1-800 Contacts v. WhenU.Com, Inc., 414 F.3d 400, 407 (2d Cir. 2005) (internal quotation marks omitted). Claims for false designation of origin can be brought to enforce both registered and unregistered trademarks. City of N.Y. v. Blue Rage, Inc., 435 F.Supp.3d 472, 485 (S.D.N.Y. 2020).
A Section 43(a) claim includes claims for false endorsement where “a company or individual uses ‘another's trademark to suggest an association without explicitly stating that a sponsorship or affiliation exists.'” Id. (quoting Beastie Boys v. Monster Energy Co., 66 F.Supp.3d 424, 446 (S.D.N.Y. 2014)). A celebrity may bring a false endorsement claim under Section 43(a) of the Lanham Act “where a party uses the celebrity's ‘persona without permission to suggest false endorsement or association.'” A.V.E.L.A., Inc. v. Est. of Marilyn Monroe, LLC, 131 F.Supp.3d 196, 204 (S.D.N.Y. 2015) (quoting Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc. (“Bruce Lee II”), No. 10-CV-2333 (KMW), 2013 WL 822173, at *19 (S.D.N.Y. Mar. 6, 2013)); see also Burck v. Mars, Inc., 571 F.Supp.2d 446, 454 (S.D.N.Y. 2008) (recognizing that [Section 43(a) of the Lanham Act] is an “appropriate vehicle for the assertion of claims of falsely implying the endorsement of a product or service by a real person”).
Here, Antetokounmpo has sufficiently alleged each of the required elements for his false designation of origin and false endorsement claims under Section 43(a) of the Lanham Act. See Compl. ¶¶ 28-32, 48-57. First, Antetokounmpo has adequately alleged that he has a valid mark that is entitled to protection under the Lanham Act. See Id. ¶¶ 28-32. Antetokounmpo contends that he owns the federally registered “Greek Freak” trademark. Pl. Mem. at 6; Pl. Mem. Ex. 2, Dkt. No. 100-2. In addition, Antetokounmpo has sufficiently alleged that his name and likeness is an unregistered mark that Defendants have infringed upon. Compl. ¶¶ 7, 28-33. Courts in this district recognize that “celebrities hold a ‘trademarklike interest in their name, likeness, and persona that may be vindicated through a false endorsement claim' under Section 43(a).” Est. of Marilyn Monroe, 131 F.Supp.3d at 206; see also Bondar v. LASplash Cosms., No. 12-CV-1417 (SAS), 2012 WL 6150859, at *5 (S.D.N.Y. Dec. 11, 2012); Albert Furst von Thurn und Taxis v. Karl Prince von Thurn und Taxis, No. 04-CV-6107 (DAB), 2006 WL 2289847, at *11 n.7 (S.D.N.Y. Aug. 8, 2006) (claim for false endorsement under Section 43(a) appropriate based on plaintiff's celebrity status). A celebrity has a “commercial investment in the drawing power” of his name in endorsing products. Allen v. Nat'l Video, Inc., 610 F.Supp. 612, 625 (S.D.N.Y. 1985). Infringement of a celebrity's rights implicates the public's interest in being “free from deception when it relies on the celebrity's endorsement in an advertisement.” Id. at 626.
However, Antetokounmpo does not specifically allege infringement of this mark in his Complaint.
In his Complaint, Antetokounmpo has alleged that he has granted licenses to third parties to use his name, likeness, and trademarks on various products, Compl. ¶¶ 4-5, and that he has “engaged in substantial advertising and promotion, and has expended substantial time, money, and resources to successfully develop and promote [his name, likeness, and trademarks].” Compl. ¶¶ 1, 30. These allegations are sufficient to establish that Antetokounmpo's name and likeness are valid marks entitled to protection under the Lanham Act. See, e.g., A.V.E.L.A., Inc. v. Est. of Marilyn Monroe, LLC, 364 F.Supp.3d 291, 307 (S.D.N.Y. 2019) (owner of persona rights can assert false endorsement claim against infringing parties).
Second, Antetokounmpo has alleged that Defendants used the mark-his name and likeness-to advertise and sell goods such as prints, jerseys, phone cases, apparel, mugs, pillows, and totes. Compl. ¶¶ 33, 53. Next, Antetokounmpo alleges that Defendants have marketed and sold products bearing his name and likeness through online platforms to consumers across the United States and that these goods may be indistinguishable from Antetokounmpo's own endorsed or licensed products. Id. ¶ 14; Compl. Ex. A, Dkt. No. 1-1. Lastly, Antetokounmpo alleges that Defendants have marketed and sold their products without his permission. Compl. ¶¶ 33, 35.
Because Antetokounmpo has sufficiently alleged the elements of a false designation of origin and false endorsement claim, the Court now turns to whether Defendants' use of Antetokounmpo's trademark rights is likely to cause consumer confusion.
b. Consumer Confusion
In considering whether Defendants' use of Antetokounmpo's name and likeness is likely to cause consumer confusion, the Court looks to the factors set forth in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961). The Polaroid factors are: (1) strength of the plaintiff's trademark; (2) similarity of the marks; (3) proximity of the products and their competitiveness with one another; (4) likelihood that the previous user will “bridge the gap” by developing a product for sale in the market of the alleged infringer's product; (5) evidence of actual consumer confusion; (6) evidence that the defendant's mark was adopted in bad faith; (7) respective quality of the products; and (8) sophistication of buyers in the relevant market. Antetokounmpo v. Searcy, No. 20-CV-5055 (JGK) (KHP), 2021 WL 3233417, at *3 (S.D.N.Y. May 20, 2021) (citing Polaroid, 287 F.2d at 495), adopted by 2021 WL 3233005 (June 23, 2021). “No single factor is dispositive, nor is a court limited to consideration of only these factors.” Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 118 (2d Cir. 2006) (internal quotation marks and citation omitted). Moreover, courts often adjust these factors when dealing with false endorsement claims. Searcy, 2021 WL 3233417, at *3 (for false endorsement claims, “the quality of the products (factor seven) and ‘bridging the gap' (factor four) are often not considered”) (quoting Jackson v. Odenat, 9 F.Supp.3d 342, 355-56 (S.D.N.Y. 2014)).
In this case, an analysis of the Polaroid factors weighs heavily in Antetokounmpo's favor. First, in the context of celebrity false endorsement claims, courts interpret “strength of the mark to mean ‘the level of recognition the celebrity has among the segment of the public to whom the goods are advertised.'” Gibson v. SCE Grp., 391 F.Supp.3d 228, 245 (S.D.N.Y. 2019) (quoting Bruce Lee Enterprises, LLC, 2013 WL 822173, at *20). Antetokounmpo alleges that he has millions of fans, and he is one of the most well-known basketball players in the world. Compl. ¶ 3. He further alleges that his name and likeness have become “inherently distinctive” and are widely recognized among consumers as source-identifiers for his products. Id. ¶ 52. These allegations are sufficient to establish the strength of Antetokounmpo's mark. See, e.g., Searcy, 2021 WL 3233417, at *4 (Antetokounmpo's notoriety as a player and widespread use of his nickname rendered mark strong).
Next, with respect to the proximity factor, the Court assesses whether a plaintiff has alleged that “the two products compete with each other” and that “the two products have an overlapping client base.” Gibson, 391 F.Supp.3d at 248. Here, Antetokounmpo has alleged that Defendants' counterfeit goods have been advertised and sold alongside his similar licensed goods. Compl. ¶¶ 5-7. He also alleges that Defendants' use of his name and likeness is “directly competitive with [his] use of the Antetokounmpo Rights on his products.” Id. ¶ 47. These allegations are sufficient to satisfy the Polaroid proximity factor. Moreover, both Antetokounmpo's and Defendants' products presumably share a consumer base - namely, NBA fans. See Compl. ¶ 34; Melekou Decl. ¶ 30.
With respect to evidence of actual consumer confusion, Antetokounmpo contends that he is unable to show actual confusion through consumer data because Defendants defaulted and thus discovery never took place. Pl. Mem. at 16. However, “actual confusion need not be shown to prevail under the Lanham Act, since actual confusion is very difficult to prove, and the Act requires only a likelihood of confusion as to source.” Beastie Boys, 66 F.Supp.3d at 456 (quoting Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986)) (emphasis in Beastie Boys). Here, Antetokounmpo alleges that “Defendants have been selling [counterfeit goods] bearing Antetokounmpo's name in a manner causing significant consumer confusion” and that “Defendants' unauthorized use of [his] name and likeness . . . causes confusion, mistake, and deception as to the source, sponsorship, or approval of Defendants' products.” Compl. ¶¶ 7, 53. He further alleges that “[t]here is no question that the products sold by Defendants bearing [his] name were sold by Defendants with the purpose of confusing and misleading consumers into believing that they [were] purchasing products associated with or endorsed by Giannis Antetokounmpo.” Id. ¶ 50.
Given Antetokounmpo's well-pleaded allegations that his image carries some level of public recognition, it is likely consumers would believe Defendants' products, advertised using Antetokounmpo's name and likeness, may be associated with or endorsed by Antetokounmpo. See, e.g., Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 1979) (“The public's belief that the [plaintiff] sponsored or otherwise approved the use of his name could satisfy the confusion requirement.”); Pinder v. S. DiCarlo, Inc., No. 18-CV-296 (BKS) (ATB), 2020 WL 437000, at *6 (N.D.N.Y. Jan. 28, 2020) (plaintiffs' allegations that their images had public recognition sufficient to satisfy “actual confusion” factor in the absence of consumer data). Moreover, Antetokounmpo's allegations that Defendants' products are counterfeits of his own licensed products, Compl. ¶ 7, further indicate a likelihood of consumer confusion. See, e.g., Jackson, 9 F.Supp.3d at 355 (the “public's belief that the mark's owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement”); Mattel, Inc. v. Arming, No 18-CV-8824 (LAP), 2021 WL 3683871, at *6 (S.D.N.Y. Aug. 18, 2021) (citing Gucci Am., Inc. v. Duty Free Apparel, Ltd., 286 F.Supp.2d 284, 287 (S.D.N.Y. 2003) (“counterfeits, by their very nature, cause confusion.”)).
Lastly, Antetokounmpo has plausibly alleged that Defendants acted in bad faith. In evaluating this Polaroid factor, courts look to whether “the defendant adopted [the] mark with the intention of capitalizing on plaintiff's reputation and goodwill.” Pinder, 2020 WL 4370000, at *6 (quoting Sports Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 964 (2d Cir. 1996)). In his Complaint, Antetokounmpo has alleged that “[b]y designing, advertising, marketing, promoting, distributing, offering for false or otherwise dealing with the Counterfeit Products, Defendants have traded off the goodwill of Plaintiff and his products, thereby directly and unfairly competing with Plaintiff.” Compl. ¶ 54. Moreover, neither Defendant cooperated with Antetokounmpo-either by satisfactorily complying with the cease-and-desist letters sent to them or participating in this action-to cease their infringement. This conduct is sufficient to demonstrate Defendants' bad faith. Compl. ¶ 49; see Searcy, 2021 WL 3233417, at *4; Microban Prod. Co. v. API Indus., Inc., No. 14-CV-41 (KPF), 2014 WL 1856471, at *8 (S.D.N.Y. May 8, 2014) (defendants acted in bad faith by failing to comply with cease-and-desist letters without consulting counsel and by threatening continued infringement).
Because he has plausibly alleged both false designation of origin and false endorsement as well as likelihood of confusion, Antetokounmpo has stated a claim under Section 43(a) of the Lanham Act.
In his inquest papers, Antetokounmpo contends that he has stated a right of publicity claim under New York law. See Pl. Mem. at 18-19. However, because Antetokounmpo seeks only attorneys' fees based on his Lanham Act claims, id. at 19, the Court will not analyze whether he has adequately alleged a right of publicity claim.
2. Damages
a. Damages Under the Lanham Act
Although under the Lanham Act a plaintiff is entitled to recover “(1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action, ” Antetokounmpo only seeks reasonable attorneys' fees and costs from Defendants in this case. Pl. Mem. at 19-21 (citing 15 U.S.C. § 1117(a)). Under the Lanham Act, as noted, a court may award reasonable attorneys' fees to the prevailing party in “exceptional cases.” 15 U.S.C. § 1117(a).
Prior to 2018, the Second Circuit “limited ‘exceptional cases' to those involving ‘fraud or bad faith or willful infringement.'” BBK Tobacco & Foods, LLP v. Galaxy VI Corp., No. 17-CV-4079 (BCM), 2020 WL 2833666, at *7 (S.D.N.Y. May 31, 2020) (quoting Omega SA v. 375 Canal LLC, No. 12-CV-6979 (PAC), 2019 WL 2242434, at *3 (S.D.N.Y. June 12, 2019)); see also Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 111 (2d Cir. 2011) (attorney's fees in trademark action awarded because of “willfulness on the part of defendants”). However, in 2018, the Second Circuit adopted a more flexible standard, explaining that an “exceptional case” is “one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Sleepy's LLC v. Select Comfort Wholesale Corp., 909 F.3d 519, 530 (2d Cir. 2018) (citing Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014) (interpreting an identical attorney's fees provision in the Patent Act, 35 U.S.C. § 285, and holding that the same standard applies to the Lanham Act)). “District courts have wide latitude to determine whether a case is exceptional; the inquiry is a case-by-case exercise that considers the totality of the circumstances.” Hello I Am Elliot, Inc. v. Sine, No. 19-CV-6905 (PAE), 2021 WL 1191971, at *3 (S.D.N.Y. Mar. 30, 2021) (quoting Octane Fitness, 572 U.S. at 554). In addition, courts may consider “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Octane Fitness, 572 U.S. at 554 n.6 (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)).
Courts in this Circuit have found cases to be “exceptional” under the Octane Fitness standard when the case was litigated in an unreasonable manner or in bad faith. See, e.g., John Wiley & Sons, Inc. v. Book Dog Books, LLC, 327 F.Supp.3d 606, 642 (S.D.N.Y. 2018) (finding exceptional case where defendants “took unreasonable positions throughout th[e] litigation” and violated court's discovery orders); River Light V, L.P. v. Lin & J Int'l, Inc., No. 13-CV-3669 (DLC), 2015 WL 3916271, at *10 (S.D.N.Y. June 25, 2015) (awarding attorneys' fees where “defendants engaged in intentional infringement, perpetrated fraud and spoliation, pursued counterclaims grounded in that fraud, and have continued to sell their infringing merchandise throughout this litigation, all with the intent to deceive and profit at the expense of the administration of justice”). Although the Second Circuit has not specifically addressed whether a default is considered “unreasonable” conduct under Octane Fitness, the Court shares the view of other courts in this district that a “[d]efendant's default - standing alone - is not ‘exceptional.'” Am. Infertility of N.Y., P.C. v. Deep Blue Health New Zealand Ltd., No. 17-CV-5666 (PGG) (BCM), 2020 WL 4218261, at *5 (S.D.N.Y. July 23, 2020) (citing Eagle Trading USA, LLC v. Crownwell, LLC, No. 18-CV-7393 (PKC), 2019 WL 1323993, at *3 (S.D.N.Y. Mar. 25, 2019)); see also Hunter Residential Servs., LLC v. AAA Randpro Plumbing, Inc., No. 16-CV-1311 (CEH) (TGW), 2017 WL 1987247, at *6 (M.D. Fla. Feb. 21, 2017) (“A failure to respond does not make the case exceptional, otherwise every default case would warrant attorney's fees, which is not supported by the statute.”).
Here, although Defendants' default alone is insufficient to deem this an “exceptional” case, an award of attorneys' fees is appropriate given (1) the substantive strength of Antetokounmpo's litigating position, (2) Defendants' objectively unreasonable conduct, and (3) the need for compensation and deterrence. First, Antetokounmpo has a substantively strong litigating position because, as discussed above, he adequately alleged that Defendants sold products featuring his name, likeness, and registered trademark without his consent, and that their products are likely to cause consumer confusion. Compl. ¶¶ 33-34, 47-48, 50; see also, e.g., CarMax Auto Superstores, Inc. v. StarMax Fin., Inc., 192 F.Supp.3d 1279, 1284 (M.D. Fla. 2016) (similar allegations against defaulting defendant sufficient to satisfy “substantive strength” factor under Octane Fitness standard). Moreover, after receiving cease-and-desist letters, Defendants were put on notice of the impropriety of their conduct but allegedly continued to sell the infringing goods, Compl. ¶¶ 33-34, 38-39, thereby frustrating any meritorious defenses and strengthening Antetokounmpo's litigating position. See, e.g., Experience Hendrix, L.L.C. v. Pitsicalis, No. 17-CV-1927 (PAE) (GWG), 2021 WL 3564485, at *16 (S.D.N.Y. July 1, 2020) (defendant's “lack of a record of an objectively reasonable defense” to plaintiffs' infringement claims constituted exceptional case warranting attorneys' fees award), adopted by 2020 WL 4261818 (Jul. 24, 2020); CarMax Auto Superstores, Inc., 192 F.Supp.3d at 1284 (defendant's actual knowledge of its infringing conduct strengthened plaintiff's litigating position).
Second, Antetokounmpo's allegations that Defendants failed to satisfactorily respond to the cease-and-desist letters or appear in this action, while continuing to sell and profit from goods featuring his name, likeness, and trademarks, Compl. ¶¶ 49, 57, demonstrate Defendants' unreasonable conduct and further justifies an attorneys' fees award. See, e.g., E. Mishan & Sons, Inc. v. Novel Brands LLC, No. 18-CV-2932 (VSB) (SN), 2020 WL 9815178, at *7 (S.D.N.Y. Feb. 13, 2020) (defendant's failure to answer complaint or discovery requests frustrated litigation and displayed “utter lack of respect for the judicial process”) (quoting Merck Eprova AG v. Gnosis S.p.A., 901 F.Supp.2d 436, 463 (S.D.N.Y. 2012)); Streamlight, Inc. v. Gindi, No. 18-CV-987 (NG), 2019 WL 6733022, at *17 (E.D.N.Y. Oct. 1, 2019) (defendants “frustrated the litigation process” by failing to appear or respond to complaint, thus preventing meaningful discovery related to damages and warranting attorneys' fees), adopted by 2019 WL 6726152 (Dec. 11, 2019); CarMax Auto Superstores, Inc., 192 F.Supp.3d at 1284 (defendant's failure to respond to litigation while continuing to sell infringing products constituted unreasonable conduct under Octane Fitness standard and warranted attorneys' fees); see also Octane Fitness, 572 U.S. at 555 (“a district court may award fees in the rare case in which a party's unreasonable conduct-while not necessarily independently sanctionable-is nonetheless so ‘exceptional' as to justify an award of fees.”).
Lastly, an award of attorneys' fees is necessary for compensation and deterrence in this case. In the infringement context, “[s]tatutory damages against a defendant who acted willfully are intended to serve the dual role of compensating a plaintiff for injuries and deterring wrongful conduct by the defendant and others.” Ray Padula Holdings, LLC v. Walmart Marketplace Vendor No. 10001029424 , No. 20-CV-4718 (VB) (PED), 2021 WL 2581648, at *6 (S.D.N.Y. May 18, 2021), adopted by 2021 WL 2581538 (Jun. 23, 2021) (citation omitted). Here, however, Defendants' default has left Antetokounmpo unable to prove statutory damages with adequate specificity, leaving an attorneys' fees award as the only vehicle to compensate him and deter Defendants and others from engaging in infringing conduct. Pl. Mem. at 20-21; Melekou Decl. ¶ 55; see also Experience Hendrix, L.L.C., 2021 WL 3564485, at *16 (need to deter others from engaging in similar infringing conduct warranted award of attorneys' fees); LCS Grp. LLC v. Shire LLC, 383 F.Supp.3d 274, 282 (S.D.N.Y. 2019) (awarding attorneys' fees to “achieve an appropriate and adequate deterrent effect”). In addition, courts in this district have awarded attorneys' fees and costs to Antetokounmpo in similar actions, see, e.g., Antetokounmpo v. Finney, No. 20-CV-7260 (JMF) (S.D.N.Y. Feb. 10, 2021), and have found that a defaulting defendant's failure to respond to a cease-and-desist letter or appear in the action constitutes an “exceptional case” under the Lanham Act. See, e.g., Searcy, 2021 WL 3233417, at *6; Pl. Mem. at 20-21 (citing cases). For these reasons, Antetokounmpo has demonstrated that this case is “exceptional” under Section 1117(a) and he should be awarded attorneys' fees and costs, as described below.
However, the courts in these cases rely on the “willfulness” standard, which has been abrogated by this Circuit in light of the Supreme Court's holding in Octane Fitness. See, e.g., Experience Hendrix, L.L.C., 2020 WL 3564485, at *14 (citing 4 Pillar Dynasty LLC v. N.Y. & Co., Inc., 933 F.3d 202, 215 (2d Cir. 2019)).
b. Attorneys' Fees
Antetokounmpo seeks $15,027.20 in attorneys' fees and costs: $7,333.23 in fees and costs from Reyes and $7,693.97 in fees and costs from Richardson-Miller. Pl. Mem. Ex. 9, Dkt. No. 100-9; Melekou Decl. ¶¶ 61-67. The attorneys' fees invoice reflects a total of approximately 38.7 hours worked. See Pl. Mem. Ex. 9.
The inquiry into reasonableness in the context of attorneys' fees centers on the lodestar, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (the lodestar creates a “presumptively reasonable fee”) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552-53 (2010). While “the lodestar is not always conclusive[, ] its presumptive reasonability means that” district courts must “calculate it as a starting point” in determining attorneys' fees, Millea, 658 F.3d at 166, departing from it if necessary “to reflect consideration of any case-specific circumstances.” Laboratorios Rivas, SRL v. Ugly & Beauty, Inc., No. 11-CV-5980 (RA) (JLC), 2013 WL 5977440, at *13 (S.D.N.Y. Nov. 12, 2013), adopted by 2014 WL 112397 (Jan. 8, 2014).
i. Reasonable Hourly Rate
“The reasonable hourly rate is the rate a paying client would be willing to pay” and “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. District courts should, in determining the rate a reasonable client would be willing to pay, consider factors including “the complexity and difficulty of the case, ” “the timing demands of the case, ” and “other returns (such as reputation, etc.) that an attorney might expect from the representation.” Id. at 184. This rate should be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); accord Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006).
The work in this case was performed by Eleni Melekou, an associate at Pardalis & Nohavicka, LLP (“PN”) whose hourly rate is $350, and by Anastasi Pardalis, a partner at PN whose hourly rate is $400. Melekou Decl. ¶ 59. “A review of cases in this District . . . suggests that courts have approved associate rates of $350 and up to $500 for partners in copyright cases.” See, e.g., Bass v. Diversity Inc. Media, No. 19-CV-2261 (AJN), 2020 WL 2765093, at *6 (S.D.N.Y. May 28, 2020) (approving rate of $425 per hour); Romanowicz v. Alister & Paine, Inc., No. 17-CV-8937 (PAE) (KHP), 2018 WL 4762980, at *7 (S.D.N.Y. Aug. 3, 2018) (approving counsel's $350 hourly rate for copyright case), adopted by 2018 WL 4759768 (Oct. 1, 2018); Pyatt v. Raymond, No. 10-CV-8764 (CM), 2012 WL 1668248, at *6 (S.D.N.Y. May 10, 2012) (collecting cases approving $400 to $650 hourly rates for partners in copyright and trademark cases). Melekou has practiced intellectual property and business and commercial litigation in federal and state courts in New York and New Jersey since 2019, and her $350 hourly rate is both reasonable and in line with the prevailing rate for similar services in this District. Melekou Decl. ¶¶ 62-63. Additionally, courts in this district have previously approved Pardalis' $400 hourly rate, determining it to be reasonable “in light of [his] approximately fifteen years' experience in the practice of law and [his] experience in trademark infringement cases.” Searcy, 2021 WL 3233417, at *6. Accordingly, I recommend that Melekou be awarded attorney's fees at the hourly rate of $350 per hour, and Pardalis be awarded attorney's fees at the rate of $400 per hour.
ii. Reasonable Number of Hours Expended
An attorney “who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specif[ying], for each attorney, the date, the hours expended, and the nature of the work done.” New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). From these records, courts can make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). District courts have “considerable discretion” in determining what constitutes a reasonable award of attorneys' fees. Filo Promotions, Inc. v. Bathtub Gins, Inc., 311 F.Supp.3d 645, 650 (S.D.N.Y. 2018) (citing Arbor Hill, 522 F.3d at 190).
In assessing the number of hours for which compensation should be awarded, “[t]he court's role is not to determine whether the number of hours worked by [plaintiff's] attorney[ ] represents the most efficient use of resources, but rather whether the number is reasonable.” Searcy, 2021 WL 3233417, at *6 (quoting In re Arbitration Between P.M.I. Trading Ltd. v. Farstad Oil, 160 F.Supp.2d 613, 616 (S.D.N.Y. 2001)). The court should “strike a balance between principles of thoroughness and efficiency.” LCS Grp. LLC, 383 F.Supp.3d at 280 (internal quotation marks omitted). The court must examine “the amount of time spent on each task and decide ‘how much of that time was reasonably expended given the scope and complexity of the litigation.'” Glob. Brand Holdings, LLC v. Accessories Direct Int'l USA, Inc., No. 17-CV-7137 (LAK) (SLC), 2020 WL 9762874, at *6 (S.D.N.Y. May 29, 2020) (internal quotation marks and citation omitted).
“A district court should reduce the number of hours included in the fee calculation if the claimed time is ‘excessive, redundant, or otherwise unnecessary.'” Filo Promotions, 311 F.Supp.3d at 650 (quoting Luessenhop v. Clinton Cty., N.Y., 324 Fed.Appx. 125, 126-27 (2d Cir. 2009)); see also Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (“[t]here is no precise rule or formula for making these determinations.”). A court may apply a percentage reduction to effectuate the reasonable imposition of fees. LCS Grp., 383 F.Supp.3d at 281; see Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 389 (S.D.N.Y. 2000) (“[R]ather than reducing a certain number of unreasonably billed hours, the [c]ourt will make an across-the-board percentage cut in [the] plaintiffs' fee award as is necessary and appropriate.”)
Antetokounmpo's counsel has submitted a copy of contemporaneous time records reflecting approximately 38.7 hours of work performed in this action. Pl. Mem. Ex. 9. Melekou spent approximately 36.8 hours on this matter, and Pardalis spent approximately 1.9 hours. Melekou Decl. ¶¶ 64-67. The records provide the date services were performed, the amount of time spent, and a description of the service including to which defendant each entry pertains. Pl. Mem. Ex. 9. These services include researching both Defendants (approximately one hour); drafting notices of infringement and cease-and-desist letters (approximately three hours); preparing the Complaint and service of process (approximately four hours); preparing and filing the motion for default judgment against both Defendants (approximately 12 hours), and preparing supplemental papers in support of the motion for default judgment (approximately 14 hours). Melekou Decl. ¶¶ 64-67. Melekou notes that she spent a significant amount of time researching, reviewing, and filing documents separately for each Defendant but acknowledged that the time spent doing legal research and drafting motions applied to both Defendants. Id.
In previous trademark infringement actions brought by Antetokounmpo that resulted in default, courts have approved fewer hours to PN attorneys for their representation. See, e.g., Finney, No. 20-CV-7260 (JMF), Dkt. No. 31 at ¶ 30; Dkt. No. 40 (awarding attorneys' fees for 20.75 hours of work); Searcy, 2021 WL 3233417, at *6 (approving approximately 23 hours of work related to “preparing and drafting the cease-and-desist letter; preparing and drafting the Complaint and arranging for service of process; preparing and filing the motion for default judgment, and preparing for the default motion hearing”); Antetokounmpo v. Paleo Prods. LLC, No. 20-CV-6224 (JGK) (RWL), 2021 U.S. Dist. LEXIS 113991, at *23 n.11 (S.D.N.Y. June 17, 2021) (approving approximately 26 hours for time spent drafting complaint, application for default and default judgment, findings of fact, conclusions of law, legal brief, and supporting declaration for inquest). Moreover, in other infringement cases where a defendant has defaulted, courts in this district have awarded even fewer hours. See, e.g., Howarth v. FORM BIB LLC, No. 18-CV-7047 (JPO) (SN), 2020 WL 3441030, at *6 (S.D.N.Y. May 11, 2020) (approving 16.3 hours in copyright infringement case), adopted by 2020 WL 3436685 (June 22, 2020); see also Alister & Paine, 2018 WL 4762980, at *6-7 (10 hours awarded to attorney who filed numerous copyright infringement cases each year because drafting the complaint, motion for default judgment, and damages inquest papers should only have taken approximately one and a half hours each).
Moreover, PN has brought numerous trademark infringement actions on behalf of Antetokounmpo in this District. See, e.g., Antetokounmpo v. Munoz, No. 20-CV-7020 (LLS) (OTW), 2021 U.S. Dist. LEXIS 54839 (S.D.N.Y. Mar. 23, 2021); Antetokounmpo v. Epic Cases, LLC, No. 20-CV-9801 (RA), 2021 U.S. Dist. LEXIS 17511 (S.D.N.Y. Jan. 29, 2021); Antetokounmpo v. Sportsmarketsusa Corp., No. 20-CV-3615 (VEC), 2020 U.S. Dist. LEXIS 116835 (S.D.N.Y. July 2, 2020); Antetokounmpo v. Fan Closet LLC , No. 20-CV-3530 (NRB), 2020 U.S. Dist. LEXIS 94556 (S.D.N.Y. May 26, 2020). Therefore, Melekou and Pardalis are plainly familiar with this area of the law as well as the facts underlying Antetokounmpo's trademark rights, thus militating against a higher number of hours in this case.
Courts in this district have found that “[t]he time and labor required for seeking a judgment by default, pursuant to Fed.R.Civ.P. 55 and based on the defendant's failure to plead or otherwise defend, as well as the level of skill required to perform the legal tasks in connection with it, are . . . de minimis.” Days Inn Worldwide, Inc. v. Amar Hotels, Inc., No 05-CV-10100 (KMW) (KNF), 2008 WL 2485407, at *9 (S.D.N.Y. June 18, 2008). Because of the “relatively straightforward” nature of this claim and Defendants' default, the approval of a slightly lower number of hours is warranted here. HTV Indus., Inc. v. Agarwal, 317 F.Supp.3d 707, 724-25 (S.D.N.Y. 2018) (applying 25% reduction to 35.6 hours billed where defendant defaulted); see also Customers Bank v. Anmi, Inc., No. 11-CV-9772 (AJN) (DF), 2014 WL 842577, at *10 (S.D.N.Y. Mar. 3, 2014) (finding 20.6 hours reasonable where defendant failed to defend action arising from default on promissory note); Diamant v. Dynasty Diamond and Jewelry Grp. Corp., No. 04-CV-3844 (GBD) (DF), 2006 WL 728802, at *5 (S.D.N.Y. Mar. 20, 2006) (finding approximately 19 hours spent on breach-of-contract case in which default judgment was entered to be reasonable).
Therefore, although there were two defendants in this case, a reduction of 20% of the approximately 38.7 hours worked in this case is warranted. Pl. Mem. Ex. 9. See, e.g., Living The Dream Films, Inc. v. Aloris Entertainment, LLC, No. 20-CV-6982 (LGS) (JLC), 2021 WL 4342700, at *13 (S.D.N.Y. Sept. 24, 2021) (20% reduction appropriate where hours billed were excessive in “relatively straightforward action” where defendant defaulted), adopted by 2021 WL 5822233 (Dec. 7, 2021); H.C. v. New York City Dep't of Educ., No. 20-CV-844 (JLC), 2021 WL 2471195, at *8 (S.D.N.Y. June 17, 2021) (20% reduction where hours billed were excessive); Beijing Daddy's Choice Sci. & Tech. Co. v. Pinduoduo Inc., No. 18-CV-6504 (NRB), 2020 WL 729518, at *7 (S.D.N.Y. Feb. 13, 2020) (30% reduction of hours billed to ensure overall fee award reflects “the minimum necessary to litigate the case effectively”) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 190). In recommending this reduction, the Court specifically takes note, inter alia, of the two hours Melekou spent drafting cease-and-desist letters to each Defendant. Id. The cease-and-desist letters are nearly identical to one another and to another cease-and-desist letter sent to Costantino (prior to his dismissal from this action). Compare Compl. Ex. B with Pl. Mem. Exs. D & F, Dkt. Nos. 100-4, 100-6. Moreover, this reduction is appropriate given the number of hours awarded in similar cases, the straightforward nature of this action, and counsel's experience with representing Antetokounmpo in trademark infringement suits. Therefore, I recommend awarding attorneys' fees at the respective rates of $350 and $400 per hour for approximately 30.95 hours of work, which totals $10,904.40, as set forth in the chart below.
Reyes should be held liable for $2,546 plus one half of the $5,434.40 spent on both Defendants, which totals $5,263.20. Richardson-Miller should be held liable for $2,924 plus one half of the $5,434.40 spent on both Defendants, which totals $5,641.20.
Table 1: Attorneys' Fees By Defendant
Defendant
Attorney
Hours Billed to Defendant
Fees Billed to Defendant
Hours Awarded (20% Reduction)
Fees Awarded (20% Reduction)
Reyes
Melekou
8.75
$3,062.50
7.00
$2,450.00
Pardalis
0.30
$120.00
0.24
$96.00
Total
9.05
$3,182.50
7.24
$2,546.00
Richardson-Miller
Melekou
10.10
$3,535.00
8.08
$2,828.00
Pardalis
0.30
$120.00
0.24
$96.00
Total
10.40
$3,655.00
8.32
$2,924.00
Both Defendants
Melekou
17.98
$6,294.17
14.384
$5,034.40
Pardalis
1.25
$500.00
1.00
$400.00
Total
19.23
$6,794.17
15.39
$5,434.40
Total
38.68
$13,631.67
30.95
$10,904.40
iii. Costs
Antetokounmpo also seeks $1,395.53 in costs ($753.64 from Reyes and $641.89 from Richardson-Miller), which include filing fees and mailing relevant documents to Defendants. Pl. Mem. Ex. 9. Litigation costs are generally recoverable if they are necessary for the representation of the client. U.S.A. Famous Original Ray's Licensing Corp. v. Famous Ray's Pizza Buffet Inc., No. 12-CV-8753 (JGK) (GWG), 2013 WL 5363777, at *8 (S.D.N.Y. Sept. 26, 2013) (citing Tri-Star Pictures, Inc. v. Unger, 42 F.Supp.2d 296, 306 (S.D.N.Y. 1999)), adopted by 2013 WL 5664058 (Oct. 17, 2013). The costs requested here are primarily associated with service of process and mailing. Pl. Mem. Ex. 9. The Court takes judicial notice of the $400 filing fee. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at *9 (S.D.N.Y. Oct. 5, 2018), adopted by 2018 WL 6173713 (Nov. 23, 2018). However, Antetokounmpo has not submitted any supporting documentation for the remaining costs listed in PN's invoice. “Costs should not be awarded without proper documentation.” Travel Leaders Grp., LLC v. Corley, No. 19-CV-1595 (GBD) (JLC), 2019 WL 6647319, at *17 (S.D.N.Y. Dec. 5, 2019) (citing Pastor v. Alice Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *9 (S.D.N.Y. Nov. 21, 2017)). Therefore, the Court recommends an award of $400 in costs.
Reyes and Richardson-Miller should each be held liable for $200 in costs (one half of the $400 filing fee).
III. CONCLUSION
For the foregoing reasons, I recommend that Antetokounmpo be awarded $10,904.40 in attorneys' fees and $400 in costs for a total of $11,304.40.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jesse M. Furman, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Furman.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).