Summary
finding reduction warranted for entries billed at partner rates including "receiving and reviewing scheduling order," "receiving Certificate of Default," and "receiving and reviewing inquest order"
Summary of this case from Michael v. Blackman Plumbing Supply, Inc.Opinion
12 Civ. 5456 (KMW) (AJP)
01-17-2013
LUCERNE TEXTILES, INC., Plaintiff, v. H.C.T. TEXTILES CO., LTD. d/b/a H.C.T. TEXTILES NEW YORK, Defendant.
REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :
To the Honorable Kimba M. Wood, United States District Judge:
Plaintiff Lucerne Textiles sued defendant H.C.T. Textiles for copyright infringement of plaintiff's "Carrera" fabric design. (Dkt. No. 1: Compl.) H.C.T. failed to respond to the complaint and, on December 10, 2012 Judge Wood entered a default judgment permanently enjoining H.C.T. from further infringing use of Lucerne's copyrighted design. (Dkt. No. 11: 12/10/12 Default Judgment ¶ a.) Judge Wood referred the matter to me for an inquest as to damages. (12/10/12 Default Judgment ¶ c; Dkt. No. 10: 12/10/12 Referral Order.)
Plaintiff's inquest submission seeks $39,613.50: $30,000 in statutory damages and $9,613.50 in attorneys' fees. (Dkt. No. 14: Lucerne Br. at 3; Dkt. No. 16: Schachter Aff. Ex. 7: Billing Records; Dkt. No. 15: Rimsky Aff. ¶¶ 15-16.) H.C.T. has not submitted opposition papers and its deadline for doing so, January 9, 2013, has passed. (Dkt. No. 12: 12/11/12 Order.)
For the reasons set forth below, the Court should award Lucerne $37,640.80: $30,000 in statutory damages for copyright infringement and $7,640.80 in attorneys' fees.
FACTS
Where, as here, "'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).
Lucerne owns the intellectual property to an original fabric design identified as "Carrera," bearing copyright registration number VA 1-803-072. (Dkt. No. 1: Compl. ¶¶ 7-10 & Ex. 2: Copyright Certificate of Registration; Dkt. No. 15: Rimsky Aff. ¶ 8.) Without Lucerne's consent or authorization, H.C.T. manufactured and sold a fabric made with a design that was copied from Lucerne's copyrighted Carrera design. (Compl. ¶¶ 12-14; Rimsky Aff. ¶¶ 10, 12.)
Lucerne learned of H.C.T.'s infringement when a Lucerne employee saw a "Tahari" garment made with the copied fabric design for sale in a department store. (Rimsky Aff. ¶¶ 9, 11.) Tahari informed Lucerne that it purchased the infringing fabric from H.C.T. (Rimsky Aff. ¶ 11; Dkt. No. 16: Schachter Aff. ¶ 4.) Lucerne sent cease and desist letters to H.C.T. on April 11, 2012 and May 31, 2012. (Rimsky Aff. ¶ 13; Schachter Aff. ¶ 6 & Exs. 4-5: 4/11/12 & 5/31/12 Cease & Desist Letters.) According to Tahari's counsel and an independent sales representative for H.C.T., H.C.T. was aware of Lucerne's copyright infringement claim, but H.C.T. did not respond to the cease and desist letters. (Schachter Aff. ¶¶ 6-7; Rimsky Aff. ¶ 13.)
Lucerne's complaint asserts a claim against H.C.T. for its willful infringement of Lucerne's copyrighted Carrera fabric design in violation of 17 U.S.C. § 501. (Compl. ¶¶ 1, 12-13; Rimsky Aff. ¶¶ 10-15; see also Schachter Aff. ¶ 7.) Lucerne seeks statutory damages of $30,000 (Dkt. No. 14: Lucerne Br. at 3), plus attorneys' fees of $9,613.50 (Schachter Aff. Ex. 7: Billing Records), totaling $39,613.50.
ANALYSIS
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). An inquest on a paper record is particularly appropriate here, where the only issue is statutory damages. See, e.g., U.S. SEC v. Verdiramo, 10 Civ. 1888, 2013 WL 57823 at *2 n.2 (S.D.N.Y. Jan. 7, 2013) (Peck, M.J.); Rolex Watch U.S.A., Inc. v. Brown, 01 Civ. 9155, 2002 WL 1226863 at *2 (S.D.N.Y. June 5, 2002) (Peck, M.J.) ("Here, of course, the issue is statutory damages, making it even more appropriate to hold the inquest on a paper record.").
I. COPYRIGHT DAMAGES
Pursuant to 17 U.S.C. § 504(c)(1) and (2), Lucerne seeks to recover statutory damages for copyright infringement in the amount of $30,000. (Dkt. No. 14: Lucerne Br. at 3.)
Section 504(c) provides, in part:
(c) Statutory Damages.--
17 U.S.C. § 504(c)(1)-(2).(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. . . .
Section 504(c)(1) "shifts the unit of damages inquiry from number of infringements to number of works." Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1381 (2d Cir. 1993). "'Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded.'" 6 William F. Patry, Patry on Copyright § 22:185 (2012 ed.); see, e.g., John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, 214 n.10 (2d Cir. 2011) ("'[T]he total number of awards of statutory damages that a plaintiff may recover in any given action depends on the number of works that are infringed . . . regardless of the number of infringements of those works.'" (quoting WB Music Corp. v. RTV Commc'n Grp., Inc., 445 F.3d 538, 540 (2d Cir. 2006))), cert. granted, 132 S. Ct. 1905 (2012). Here, the complaint alleges that H.C.T. sold products that infringed on Lucerne's registered copyright for the Carrera. (See page 2 above.)
See also, e.g., D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 34 (2d Cir. 1990) ("Within these [minimum and maximum amount] limitations the court's discretion and sense of justice are controlling, but it has no discretion when proceeding under this [statutory damages] provision to go outside of them." (quotations omitted)); Arista Records LLC v. Lime Grp. LLC, 06 Civ. 5936, 2011 WL 1311771 at *1 (S.D.N.Y. Apr. 4, 2011) (Wood, D.J.); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[E][1][a] (2012 ed.); 6 William F. Patry, Patry on Copyright § 22:184 (2012 ed.).
Statutory damages for copyright infringement "'are available without proof of plaintiff's actual damages or proof of any damages.'" Nat'l Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458, 472 (S.D.N.Y. 2001) (Peck, M.J.) (quoting Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *2 (S.D.N.Y. July 11, 2000) (Peck, M.J.) (citing 17 U.S.C. § 504(c)(1))); see, e.g., Bus. Trends Analysts, Inc. v. Freedonia Grp., Inc., 887 F.2d 399, 403 (2d Cir. 1989) ("[C]opyright plaintiffs may elect at any time before final judgment to receive statutory damages under Section 504(c), a method useful where proof of actual damages or profits is insufficient."); CJ Prods. LLC v. Your Store Online LLC, 11 Civ. 9513, 2012 WL 2856068 at *2 (S.D.N.Y. July 12, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 4714820 (S.D.N.Y. Oct. 3, 2012); Broad. Music, Inc. v. DFK Entm't, LLC, No. 10-CV-1393, 2012 WL 893470 at *4 (N.D.N.Y. Mar. 15, 2012); UMG Recordings, Inc. v. Griffin, No. 08-CV-00274, 2008 WL 4974856 at *2 (N.D.N.Y. Nov. 24, 2008) ("[A] plaintiff may elect statutory damages regardless of the adequacy of the evidence offered as to his actual damages and the amount of the defendant's profits." (quotations omitted)); Interscope Records v. Sharp, No. 05-CV-920, 2007 WL 4555905 at *2 (N.D.N.Y. Dec. 19, 2007). As Professor Patry has explained:
See also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[A] (2012 ed.) ("Under the current [Copyright] Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant's profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant's profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under circumstances in which plaintiff's damages or defendant's profits are susceptible to precise evaluation, represents a departure from the pertinent provisions of the 1909 Act." (fns. omitted)); 6 William F. Patry, Patry on Copyright § 22:153-208 (2012 ed.).
Since actual damages and profits frequently are difficult to prove, the Copyright Act provides for minimum and maximum statutory damages. These damages may be elected by the copyright owner at any time before final judgment is rendered, without proof of actual damages.2 William F. Patry, Copyright Law & Practice 1170 (1994) (fns. omitted).
H.C.T. has defaulted and is deemed to be a willful infringer by virtue of its default. E.g., CJ Prods. LLC v. Your Store Online LLC, 2012 WL 2856068 at *3; Coach, Inc. v. O'Brien, 10 Civ. 6071, 2012 WL 1255276 at *14 (S.D.N.Y. Apr. 13, 2012) ("[T]his Court has already found that . . . [defendant's] conduct was willful '[b]y virtue of [her] default' . . . ."); All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d 613, 621 (S.D.N.Y. 2011) (Berman, D.J. & Peck, M.J.) ("Defendants have defaulted . . . and by virtue of their default are deemed to be willful infringers.").
See also, e.g., Harris v. Fairweather, 11 Civ. 2152, 2012 WL 3956801 at *3 (S.D.N.Y. Sept. 10, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 5199250 (S.D.N.Y. Oct. 19, 2012); AW Indus., Inc. v. Sleep Well Mattress, Inc., No. 07-CV-3969, 2009 WL 485186 at *4 (E.D.N.Y. Feb. 26, 2009); Rodgers v. Anderson, 04 Civ. 1149, 2005 WL 950021 at *3 (S.D.N.Y. Apr. 26, 2005) (Peck, M.J.); Tiffany (NJ) Inc. v. Luban, 282 F. Supp. 2d 123, 124 (S.D.N.Y. 2003).
Where, as here, a defendant has acted willfully, "a statutory award should incorporate not only a compensatory, but also a punitive component to discourage further wrongdoing by the defendants and others." Malletier v. Carducci Leather Fashions, Inc., 648 F. Supp. 2d 501, 504 (S.D.N.Y. 2009).
Accord, e.g., CJ Prods. LLC v. Your Store Online LLC, 2012 WL 2856068 at *3; Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d 619, 631 (S.D.N.Y. 2011); Gucci Am., Inc. v. MyReplicaHandbag.com, 07 Civ. 2438, 2008 WL 512789 at *3 (S.D.N.Y. Feb. 26, 2008).
Courts determining statutory damages pursuant to § 504(c) have considered the following factors:
(1) the expenses saved and the profits reaped; (2) the revenues lost by the plaintiff; (3) the value of the copyright; (4) the deterrent effect on others besides the defendant; (5) whether the defendant's conduct was innocent or willful; (6) whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced; and (7) the potential for discouraging the defendant.Kenneth Jay Lane, Inc. v. Heavenly Apparel, Inc., 03 Civ. 2132, 2006 WL 728407 at *6 (S.D.N.Y. Mar. 21, 2006); accord, e.g., Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir.), cert. denied, 131 S. Ct. 656 (2010); N.A.S. Imp., Corp. v. Chenson Enters., Inc., 968 F.2d 250, 252 (2d Cir. 1992); Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1117 (2d Cir. 1986).
See also, e.g., CJ Prods. LLC v. Your Store Online LLC, 2012 WL 2856068 at *3; Coach, Inc. v. O'Brien, 2012 WL 1255276 at *2; Union of Orthodox Jewish Congregations of Am. v. Am. Food & Beverage Inc., 704 F. Supp. 2d 288, 291 (S.D.N.Y. 2010); Gucci Am., Inc. v. MyReplicaHandbag.com, 2008 WL 512789 at *2-3; Hermes Int'l v. Kiernan, No. 06-CV-3605, 2008 WL 4163208 at *4 (E.D.N.Y. Aug. 28, 2008); Gucci Am., Inc. v. Duty Free Apparel, Ltd., 315 F. Supp. 2d 511, 520 (S.D.N.Y. 2004); Tiffany (NJ) Inc. v. Luban, 282 F. Supp. 2d at 125.
Here, the key factors weigh in Lucerne's favor. As to the fourth factor, "the goal of deterring similar conduct by other enterprises requires a substantial award." Louis Vuitton Malletier, S.A. v. LY USA, 06 Civ. 13463, 2008 WL 5637161 at *2 (S.D.N.Y. Oct. 3, 2008), aff'd, 472 F. App'x 19 (2d Cir. 2012). As to the fifth factor, this Court has already found that H.C.T.'s conduct was willful. (See page 5 above.) As to the seventh factor, H.C.T. appears to have continued to sell infringing products even after it received two cease and desist letters, and even after suit was brought. (See page 2 above.)
There is no information as to the first, second, third or sixth factors, since there has been no discovery. (Dkt. No. 13: 12/12/12 Memo Endorsed Order: "Request [for time to conduct discovery on damages denied without] prejudice to renewal. In the Court's experience, where a defendant has defaulted, it is unlikely to respond to discovery. Consider seeking statutory damages. Or explain why you think defendant will respond to discovery.") However, H.C.T. clearly profited from its infringement at least insofar as it sold the copied fabric design to Tahari. (See Dkt. No. 15: Rimsky Aff. ¶¶ 7-11.) Moreover, "Lucerne's damages as a result of its original designs being copied may never be known because in addition to the loss of profits from the sale of the infringing fabric, Lucerne has no way of knowing which of its customers were offered or saw the infringing design and as a result thereafter believe that Lucerne's designs are not original or having seen a competitor selling the infringing design determine not to purchase the design from Lucerne." (Rimsky Aff. ¶ 7.) See Tokar v. 8 Whispering Fields Assocs., Ltd., No. CV 08-4573, 2011 WL 7445062 at *2 (E.D.N.Y. Dec. 13, 2011) ("[P]laintiff suffered financial losses that are not easily quantified. The improper replication of the original home impaired plaintiff's exclusive design and undermined its uniqueness, damaged his reputation and cost plaintiff the loss of securing any further work from his client, and inured to the financial benefit of defendants."), report & rec. adopted, 2012 WL 688468 (E.D.N.Y. Mar. 2, 2012).
See also Lucerne Br. at 3 ("HCT chose to ignore Lucerne's demand that it confirm to Lucerne that it had ceased its infringing activities."); Rimsky Aff. ¶ 13 ("Lucerne's counsel sent cease and desist letters to defendant both in New York and Taiwan, China. . . . [D]efendant never responded and we do not know if it has stopped its infringing sales or taken any other actions to remove infringing goods from the marketplace."); Dkt. No. 16: Schachter Aff. ¶¶ 6-7 & Exs. 4-5: 4/11/12 & 5/31/12 Cease & Desist Letters.
Having found that H.C.T. willfully infringed Lucerne's copyright, the Court may award up to $150,000 in statutory damages. 17 U.S.C. § 504(c)(2); accord, e.g., Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 403 (S.D.N.Y. 2002) ("Since I find defendants' infringement to have been willful, I can award up to $150,000 in statutory damages."). Lucerne has requested statutory damages of $30,000 (Lucerne Br. at 3; Rimsky Aff. ¶ 15), which is the maximum amount permitted for non-willful infringement. 17 U.S.C. § 504(c)(1).
After consideration of the factors enumerated above, the Court finds that Lucerne's request for $30,000 in statutory damages is appropriate and consistent with awards in similar cases. See, e.g., Tokar v. 8 Whispering Fields Assocs., Ltd., 2011 WL 7445062 at *2 ("In the instant case, it is appropriate for plaintiff to receive the maximum amount of non-willful statutory damages for the copyrighted work infringed by defendants. . . . [W]hile plaintiff does not seek a willfulness enhancement, it is appropriate for the court to consider the inference of willfulness based on defendants' default in determining the amount of damages within the statutory award range. Accordingly, on this record, the undersigned recommends that the Court award plaintiff statutory damages against defendants, jointly and severally, in the amount of $30,000 for their infringement." (citations omitted)); Granada Sales Corp. v. Aumer, 02 Civ. 6682, 2003 WL 21383821 at *3 (S.D.N.Y. June 2, 2003); Stevens v. Aeonian Press, Inc., 00 Civ. 6330, 2002 WL 31387224 at *2, *4 (S.D.N.Y. Oct. 23, 2002) ("Having found that Defendants . . . willfully infringed Plaintiffs' copyrights, and having considered all of the factors enumerated above, the Court awards Plaintiffs statutory damages of $30,000 . . . . [I]n this case it is just to award statutory damages in an amount that equals the maximum permitted in a case of nonwillful infringement.").
See also, e.g., Telebrands Corp. v. HM Imp. USA Corp., No. 09-CV-3492, 2012 WL 3930405 at *9-10 (E.D.N.Y. July 26, 2012) (awarding $30,000 for willful infringement in light of "the need to send a signal to these defendants, as well as others, that they will pay a substantial price for willfully infringing the intellectual property rights of others"), report & rec. adopted, 2012 WL 3957188 (E.D.N.Y. Sept. 10, 2012); Olde Mill Co. v. Alamo Flag, Inc., No. 10cv130, 2010 WL 3430715 at *3 (E.D. Va. Aug. 4, 2010) ("[D]efendants failed to comply with the two cease-and-desist letters they received . . . . In view of . . . defendants' willful infringement, . . . the magistrate judge recommends the statutory damage award suggested by plaintiff, namely, $30,000.00, which is the maximum award for non-willful infringement."), report & rec. adopted, 2010 WL 3430917 (E.D. Va. Aug. 27, 2010); TR-Equip., Ltd. v. M12Int'l, Inc., No. 08cv226, 2008 WL 4813327 at *4 (E.D. Va. Oct. 28, 2008) (awarding $30,000 where "there has been no discovery" and "it is not possible to ascertain the extent to which defendant has profited from the" infringement); Peer Int'l Corp. v. Max Music & Entm't, Inc., 03 Civ. 0996, 2004 WL 1542253 at *5 (S.D.N.Y. July 9, 2004) ("I recommend that Defendants be awarded statutory damages in the amount of $30,000 for each copyrighted work . . . . [T]his amount . . . is consistent with statutory damages amounts awarded in similar cases."); Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d at 403 (awarding $30,000 for willful infringement where "defendants' infringing activities continued despite notice from" plaintiff).
II. ATTORNEYS' FEES AND COSTS
Lucerne seeks $9,613.50 in attorneys' fees for 21.3 hours of work. (Dkt. No. 16: Schachter Aff. Ex. 7: Billing Records.) Lucerne did not submit any information regarding costs.
The 17.7-hour Grand Total listed in Lucerne's counsel's billing records is incorrect; addition of all the entries in the Hours column yields 21.3 hours. (See Schachter Aff. Ex. 7: Billing Records.)
Costs and attorneys' fees to the prevailing party in copyright cases are governed by 17 U.S.C. § 505, which provides that:
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.17 U.S.C. § 505.
The Supreme Court has made clear that attorneys' fees in copyright actions are not automatic to the prevailing party. Rather, "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S. Ct. 1023, 1033 (1994). The Court's discretion is broad and subject to review only for abuse of discretion. E.g., Russian Entm't Wholesale, Inc. v. Close-Up Int'l, Inc., 482 F. App'x at 607; Matthew Bender & Co. v. West Publ'g Co., 240 F.3d 116, 120 (2d Cir. 2001); Clark v. Hudson Bay Music, Inc., No. 96-7251, 104 F.3d 351 (table), 1996 WL 547186 at *2 (2d Cir. Sept. 26, 1996).
Accord, e.g., William F. Patry & Rebecca F. Martin, Copyright Law & Practice 308-12 (Cumulative Supp. 2000); see also, e.g., Russian Entm't Wholesale, Inc. v. Close-Up Int'l, Inc., 482 F. App'x 602, 607 (2d Cir. 2012); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999); N.A.S. Imp., Corp. v. Chenson Enters., Inc., 968 F.2d 250, 253-54 (2d Cir. 1992).
The Second Circuit has held that "[w]hen determining whether to award attorneys fees [under 17 U.S.C. § 505], district courts may consider such factors as (1) the frivolousness of the non-prevailing party's claims or defenses; (2) the party's motivation; (3) whether the claims or defenses were objectively unreasonable; and (4) compensation and deterrence. The third factor - objective unreasonableness - should be given substantial weight." Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir.) (citation omitted), cert. denied, 131 S. Ct. 656 (2010).
See also, e.g., Russian Entm't Wholesale, Inc. v. Close-Up Int'l, Inc., 482 F. App'x at 607; Matthew Bender & Co. v. West Publ'g Co., 240 F.3d at 122 ("[The] emphasis on objective reasonableness is firmly rooted in Fogerty's [v. Fantasy, Inc., 510 U.S. at 534, 114 S. Ct. at 1033] admonition that any factor a court considers in deciding whether to award attorneys' fees must be 'faithful to the purposes of the Copyright Act.' . . . [T]he imposition of a fee award against a copyright holder with an objectively reasonable litigation position will generally not promote the purposes of the Copyright Act."); EMI Catalogue P'ship v. CBS/Fox Co., 86 Civ. 1149, 1996 WL 280813 at *2 (S.D.N.Y. May 24, 1996) (the objective reasonableness of the plaintiff's claim was central in determining that attorney's fees were not justified).
"[T]he amount of damages awarded [also] is a factor that may be considered in arriving at an appropriate award of attorney's fees . . . ." N.A.S. Imp., Corp. v. Chenson Enters., Inc., 968 F.2d at 254.
Considerations of deterrence may support an award of attorneys' fees to the prevailing party where none of the other relevant factors justify denying such an award, especially when willful infringement has been found. See, e.g., Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999); Broad. Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp. 656, 661 (S.D.N.Y. 1996); Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 570 (S.D.N.Y. 1995) (Sotomayor, D.J.).
Here, by failing to answer the complaint, H.C.T. has not "assert[ed] any defense, frivolous or otherwise." Pearson Educ., Inc. v. Vergara, 09 Civ. 6832, 2010 WL 3744033 at *5 (S.D.N.Y. Sept. 27, 2010). H.C.T.'s default weighs in favor of awarding attorneys' fees and costs under 17 U.S.C. § 505. See, e.g., All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d 613, 628 (S.D.N.Y. 2011) (Berman, D.J. & Peck, M.J.) (awarding plaintiff reasonable attorney's fees in a copyright infringement case where defendant defaulted); Pearson Educ., Inc. v. Vergara, 2010 WL 3744033 at *5 ("[A]warding costs and attorney's fees is warranted, in order to compensate the plaintiffs for the costs they incurred to retain counsel to initiate this litigation and secure judgment by default."); Gladys Music v. Bilbat Radio, Inc., No. 07-CV-6086, 2007 WL 3033960 at *1 (W.D.N.Y. Oct. 15, 2007).
A. Calculating Reasonable Attorneys' Fees
Traditionally, "[i]n determining a fee award, the typical starting point is the so-called lodestar amount, that is 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Healey v. Leavitt, 485 F.3d 63, 71 (2d Cir. 2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983)). Particularly in awarding statutory attorneys' fees, "[t]he product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward . . . ." Hensley v. Eckerhart, 461 U.S. at 434, 103 S. Ct. at 1940; see also, e.g., Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) ("[T]he lodestar method involved two steps: (1) the lodestar calculation; and (2) adjustment of the lodestar based on case-specific considerations."); Short v. Manhattan Apartments, Inc., 11 Civ. 5989, --- F.R.D. ----, 2012 WL 4829615 at *6 (S.D.N.Y. Oct. 11, 2012) (Wood, D.J.).
The Second Circuit requires contemporaneous time records as a prerequisite for awarding attorneys' fees. E.g., N.Y.S. Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983).
Lucerne provided the Court with contemporaneous time records that specify the date, who performed the work, the time expended, and a description of the service provided. (Dkt. No. 16: Schachter Aff. Ex. 7: Billing Records.) Lucerne also provided an attorney affidavit stating each individual's hourly rate, position, and describing the lawyers' credentials. (Schachter Aff. ¶ 10.) The Court has carefully reviewed the billing records submitted by Lucerne and finds that the requested $9,613.50 in attorneys' fees should be reduced to $7,640.80.
1. Hourly Rates
Lucerne is represented by Sills Cummis & Gross P.C. (Dkt. No. 16: Schachter Aff. ¶ 1.) Kenneth Schachter, a partner with over twenty-five years of copyright infringement experience, had an hourly rate ranging from $475 to $495. (Id. ¶ 10.) The hourly rate for Michael Goldsmith, a partner with over twenty-five years of copyright infringement experience, was $530. (Id.) Lauren Siber, a fourth year associate, had an hourly rate of $295. (Id.)
These rates are reasonable and commensurate with rates that attorneys in Manhattan with comparable experience charge and that Southern and Eastern District judges have approved in other intellectual property cases. See, e.g., Dweck v. Amadi, 10 Civ. 2577, 2012 WL 3020029 at *4 & n.5 (S.D.N.Y. July 6, 2012) (collecting cases approving $180 to $440 hourly rates for intellectual property associates), report & rec. adopted, 2012 WL 3024185 (S.D.N.Y. July 24, 2012); TigerCandy Arts, Inc. v. Blairson Corp., 09 Civ. 6215, 2012 WL 760168 at *9 (S.D.N.Y. Feb. 23, 2012) ($500, not the $800 requested, was reasonable hourly rate for partner who "has been practicing law for twenty-eight years, specializes in intellectual property law, and has been recognized as a skilled intellectual property attorney by several organizations"), report & rec. adopted, 2012 WL 1948816 (S.D.N.Y. May 30, 2012); Pyatt v. Raymond, 10 Civ. 8764, 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); OZ Mgmt. LP v. Ozdeal Inv. Consultants, Inc., 09 Civ. 8665, 2010 WL 5538552 at *3 (S.D.N.Y. Dec. 6, 2010) (finding $657 per hour "is well within the range of rates for law firm partners in the New York City area with significant intellectual property law experience" and approving $395 to $435 associate rates), report & rec. adopted, 2011 WL 43459 (S.D.N.Y. Jan. 5, 2011); U.S.A. Famous Original Ray's Licensing Corp. v. Tisi's Pizza & Pasta Inc., 09 Civ. 5517, 2009 WL 4351962 at *7 (S.D.N.Y. Dec. 1, 2009) (Peck, M.J.) (hourly rates of $400 for partner and $295 for ninth year associate "are commensurate with (if not lower than) the rates that attorneys in Manhattan with comparable experience charge and the rates that Southern and Eastern District judges have approved in other intellectual property cases"), report & rec. adopted, 2009 WL 5178023 (S.D.N.Y. Dec. 31, 2009).
See also, e.g., Truong v. N.Y. Hotel & Motel Trades Council, AFL-CIO, 07 Civ. 11383, 2011 WL 147689 at *3 (S.D.N.Y. Jan. 12, 2011) ($500 per hour is reasonable and "far less than that often billed by law firm partners"); Tu v. TAD Sys. Tech. Inc., No. 08-CV-3822, 2009 WL 2905780 at *10 (E.D.N.Y. Sept. 10, 2009) (in copyright and trademark case, court approved $375 per hour for partners, $250 per hour for senior associates, and $150 per hour for junior associates); GAKM Res. LLC v. Jaylyn Sales Inc., 08 Civ. 6030, 2009 WL 2150891 at *7-8 (S.D.N.Y. July 20, 2009) (Lynch, D.J. & Katz, M.J.) (in trademark infringement case, approving $600 to $650 hourly rate for intellectual property attorneys at a national law firm with 20 to 30 years experience, and $525 hourly rate for an attorney at a national law firm with 11 years experience); Margel v. E.G.L. Gem Lab Ltd., 04 Civ. 1514, 2009 WL 302069 at *8 (S.D.N.Y. Feb. 6, 2009) (Partner's "hourly rates of $550.00 in 2005 and $585.00 in 2006, though high, are reasonable in light of his fifteen to sixteen years' experience and the fact that he practices intellectual property law at a large Manhattan law firm."); Microsoft Corp. v. Computer Care Ctr., Inc., No. 06-CV-1429, 2008 WL 4179653 at *14-15 (E.D.N.Y. Sept. 10, 2008) ($500 hourly rate for a partner who had specialized in intellectual property litigation since 1994 and $385 hourly rate for an associate, "while on the high side, [fell] within the range awarded in New York City" for intellectual property cases); Entral Grp. Int'l, LLC v. Sun Sports Bar Inc., No. 05-CV-4836, 2007 WL 2891419 at *10 (E.D.N.Y. Sept. 28, 2007) (approving hourly rate of $560 for a partner and $340 to $360 for associates in copyright infringement action).
Paralegal Samantha Schonfeld billed at an hourly rate of $140, and Bonnie Schwab, "a paralegal and chief court clerk," billed at an hourly rate of $265. (Schachter Aff. ¶ 10.) While Schonfeld's $140 rate is reasonable, Schwab's $265 rate is unreasonable in the absence of any further explanation and, therefore, Schwab's rate should be reduced to $140 per hour. See, e.g., Truong v. N.Y. Hotel & Motel Trades Council, AFL-CIO, 2011 WL 147689 at *3 (approving $125 hourly rate for clerks); OZ Mgmt. LP v. Ozdeal Inv. Consultants, Inc., 2010 WL 5538552 at *4 (where plaintiff "has not provided any information regarding the clerks' backgrounds, nor has it justified their hourly billing rates," clerks' hourly billing rates reduced to $110 per hour, which "is consistent with reasonable hourly rates for paralegals and clerks in this jurisdiction"); N.Y.C. Dist. Council of Carpenters v. Rock-It Contracting, Inc., 09 Civ. 9479, 2010 WL 1140720 at *4 (S.D.N.Y. Mar. 26, 2010) (Peck, M.J.) ($125 per hour is reasonable paralegal rate), report & rec. adopted, 2010 WL 1558568 (S.D.N.Y. Apr. 19, 2010); VFS Fin., Inc. v. Pioneer Aviation, LLC, 08 Civ. 7655, 2009 WL 2447751 at *4 (S.D.N.Y. Aug. 11, 2009) (Peck, M.J.) (paralegal hourly rates of $125 "are clearly reasonable in this district").
See also, e.g., J.S. Nicol, Inc. v. Peking Handicraft, Inc., 03 Civ. 1548, 2008 WL 4613752 at *16 (S.D.N.Y. Oct. 17, 2008) (Peck, M.J.) ("$150 per hour paralegal or litigation support rate . . . is commonly accepted in this District."); Trs. of Mason Tenders Dist. Council Welfare Fund v. Stevenson Contracting Corp., 05 Civ. 5546, 2008 WL 3155122 at *11-12 (S.D.N.Y. June 19, 2008) (awarding legal fees for "litigation support staff" at rates of $140 to $150 per hour), report & rec. adopted, 2008 WL 2940517 (S.D.N.Y. July 29, 2008); Hnot v. Willis Grp. Holdings Ltd., 01 Civ. 6558, 2008 WL 1166309 at *3 (S.D.N.Y. Apr. 7, 2008) ("[T]here is ample support for $150 per hour as a reasonable rate for paralegals in this District."); Wise v. Kelly, 620 F. Supp. 2d 435, 449-50 (S.D.N.Y. 2008) (awarding legal fees for paralegal work at rate of $100 per hour); Entral Grp. Int'l, LLC v. Sun Sports Bar Inc., 2007 WL 2891419 at *10 ($138 per hour for paralegal is "within the range of rates charged for copyright infringement cases" (citing cases)); Heng Chan v. Sung Yue Tung Corp., 03 Civ. 6048, 2007 WL 1373118 at *5-6 (S.D.N.Y. May 8, 2007) (awarding $125 per hour for a "legal assistant" and $150 per hour for a "senior legal assistant"); Sheehan v. Metro. Life Ins. Co., 450 F. Supp. 2d 321, 328 (S.D.N.Y. 2006) (awarding legal fees for paralegals at $150 per hour); Access 4 All, Inc. v. Park Lane Hotel, Inc., 04 Civ. 7174, 2005 WL 3338555 at *5 (S.D.N.Y. Dec. 7, 2005) (awarding $115 per hour for paralegals); Morris v. Eversley, 343 F. Supp. 2d 234, 248 (S.D.N.Y. 2004) (Chin, D.J.) (awarding $125 per hour for paralegals).
Accordingly, plaintiff's requested amount of $9,613.50 in attorneys' fees should be reduced by $62.50, to $9,551, to account for the difference between Schwab's 0.5-hour entry (her only entry) billed at the original $265 hourly rate, and the reduced $140 hourly rate. (See Schachter Aff. Ex. 7: Billing Records: 11/20/12 Entry.)
2. Time Expended
In determining whether the amount of hours billed is reasonable "the court takes account of claimed hours that it views as 'excessive, redundant, or otherwise unnecessary.'" Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939-40 (1983)). "In so doing, 'the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.'" Bliven v. Hunt, 579 F.3d at 213. "The critical inquiry is 'whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'" Cesario v. BNI Constr., Inc., 07 Civ. 8545, 2008 WL 5210209 at *7 (S.D.N.Y. Dec. 15, 2008) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 506 U.S. 1053, 113 S. Ct. 978 (1993)), report & rec. adopted, 2009 WL 424136 (S.D.N.Y. Feb. 19, 2009).
The Court finds that Lucerne's request must be reduced, for several reasons. First, Lucerne cannot recover for time spent by attorneys completing administrative tasks. See, e.g., Short v. Manhattan Apartments, Inc., 11 Civ. 5989, --- F.R.D. ----, 2012 WL 4829615 at *6 (S.D.N.Y. Oct. 11, 2012) (Wood, D.J.) ("A court may reduce requested fees . . . if their requests reflect work that could or should have been completed by a paralegal or secretary."); Ryan v. Allied Interstate, Inc., 12 Civ. 0526, 12 Civ. 1719, --- F. Supp. 2d ----, 2012 WL 3217853 at *6 (S.D.N.Y. Aug. 9, 2012) (Peck, M.J.); E.S. v. Katonah-Lewisboro Sch. Dist., 796 F. Supp. 2d 421, 431-32 (S.D.N.Y. 2011) ("A court may make [across-the-board percentage] reductions when attorneys engage in less skilled work, like filing and other administrative tasks [such as] . . . faxing and mailing documents, making copies, filing, scanning, preparing documents for electronic filing, electronic file management, binding documents, and Bates stamping."), aff'd, No. 10-4446-cv, --- F. App'x ----, 2012 WL 2615366 (2d Cir. July 6, 2012); All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d 613, 629 (S.D.N.Y. 2011) (Berman, D.J. & Peck, M.J.) (reducing fees where entries "reflect work done at an attorney rate that could and should have been done by a paralegal or secretary"); Nat'l Audubon Soc'y, Inc. v. Sonopia Corp., 09 Civ. 0975, 2010 WL 3911261 at *5 (S.D.N.Y. Sept. 1, 2010) ("[A]dditional set-offs are necessary to account for the time spent on such less-skilled work [such as] . . . completion of the civil cover sheet, review of ECF procedures, and meeting with court clerks to discuss order to show cause and default judgment procedures."), report & rec. adopted, 2010 WL 5373900 (S.D.N.Y. Dec. 22, 2010); Tucker v. City of N.Y., 704 F. Supp. 2d 347, 356 (S.D.N.Y. 2010).
Second, case law also makes clear that the Court may reduce the fees requested for billing entries that are vague and do not sufficiently demonstrate what counsel did. See, e.g., Short v. Manhattan Apartments, Inc., 2012 WL 4829615 at *6 ("A court may reduce requested fees if the attorneys' documentation of their hours is vague . . . ."); Ryan v. Allied Interstate, Inc., 2012 WL 3217853 at *7; Carrasco v. W. Vill. Ritz Corp., 11 Civ. 7843, 2012 WL 2814112 at *7 (S.D.N.Y. July 11, 2012) (Peck, M.J.) (reducing attorney's hours where "some of the billing entries are vague and the time spent excessive"), report & rec. adopted, 2012 WL 3822238 (S.D.N.Y. Sept. 4, 2012); Gordon v. Site 16/17 Dev., LLC, 11 Civ. 0427, 2011 WL 3251520 at *5 (S.D.N.Y. July 28, 2011) (Peck, M.J.) ("When time records reflect vague and duplicative entries, and entries for attorneys performing ministerial tasks, the Court may order a reduction in attorneys' fees." (citing cases)); VFS Fin., Inc. v. Pioneer Aviation, LLC, 08 Civ. 7655, 2009 WL 2447751 at *5 (S.D.N.Y. Aug. 11, 2009) (Peck, M.J.) ("Having reviewed [plaintiff's] attorneys' time sheets, the Court believes that a number of [plaintiff's] attorneys' billing entries are overly vague or duplicative, and that a percentage fee reduction therefore is appropriate."); J.S. Nicol, Inc. v. Peking Handicraft, Inc., 03 Civ. 1548, 2008 WL 4613752 at *4 (S.D.N.Y. Oct. 17, 2008) (Peck, M.J.) ("A time entry is vague if it lacks sufficient specificity for the Court to assess the reasonableness of the amount charged in relation to the work performed. Where billing records are vague, a [percentage] reduction in fees is . . . appropriate." (quotations omitted)).
Third, a reduction is warranted where the hours billed are disproportionate to the quantity or quality of the attorneys' work. See, e.g., Harris v. Fairweather, 11 Civ. 2152, 2012 WL 3956801 at *8 (S.D.N.Y. Sept. 10, 2012) (Peck, M.J.) ("In determining the reasonableness of the requested attorneys' fees, the Court considers the quality of the work done by the attorneys. . . . In light of the mediocre attorney performance, the vague billing entries and excessive time spent on certain tasks, the Court should reduce the total attorneys' fees . . . ." (citing cases)), report & rec. adopted, 2012 WL 5199250 (S.D.N.Y. Oct. 19, 2012); Rolex Watch, U.S.A., Inc. v. Pharel, No. 09 CV 4810, 2011 WL 1131401 at *7 (E.D.N.Y. Mar. 11, 2011) (reduction warranted where brief "did not contain particularly complicated analyses" and omitted certain arguments entirely), report & rec. adopted, 2011 WL 1130457 (E.D.N.Y. Mar. 28, 2011); Gesualdi v. Cirillo, No. 09-CV-4570, 2011 WL 666196 at *5 (E.D.N.Y. Jan. 3, 2011) (reduction warranted where "the 26.1 total hours billed on this matter do not reflect the quality of work submitted to the Court"), report & rec. adopted, 2011 WL 666197 (E.D.N.Y. Feb. 14, 2011); Truong v. N.Y. Hotel & Motel Trades Council, AFL-CIO, 07 Civ. 11383, 2011 WL 147689 at *3 (S.D.N.Y. Jan. 12, 2011) ("The Court is unclear as to why this document, presumptively a standard form order, took up to 8.75 hours of an associates time. Thus the Court reduces [counsel's] billables . . . ."); OZ Mgmt. LP v. Ozdeal Inv. Consultants, Inc., 09 Civ. 8665, 2010 WL 5538552 at *5 (S.D.N.Y. Dec. 6, 2010) (reduction warranted where "attorneys spent a total of 7.6 hours on the drafting of a cease-and-desist letter and related activities" and excessive time was spent drafting a "nearly identical" document that "appears to be boilerplate"), report & rec. adopted, 2011 WL 43459 (S.D.N.Y. Jan. 5, 2011); Microsoft Corp. v. Computer Care Ctr., Inc., No. 06-CV-1429, 2008 WL 4179653 at *16 (E.D.N.Y. Sept. 10, 2008) (reducing fees where attorney "spent an excessive amount of time [1.9 hours, or $950] composing a two-page letter to the Court requesting an extension of the discovery deadline").
The submitted documentation shows Sills Cummis expended 21.3 hours. (See page 9 & n.11 above.) While the total number of hours appears reasonable for this case, the Court finds many of the entries are not fully compensable and, therefore, an overall fee reduction is warranted.
See, e.g., U.S.A. Famous Original Ray's Licensing Corp. v. Tisi's Pizza & Pasta Inc., 09 Civ. 5517, 2009 WL 4351962 at *8 (S.D.N.Y. Dec. 1, 2009) (Peck, M.J.) (24.6 hours was reasonable for tasks including researching trademark, drafting cease and desist letters, complaint, and order for default judgment, and preparing for and attending two conferences), report & rec. adopted, 2009 WL 5178023 (S.D.N.Y. Dec. 31, 2009).
For example, 18.5 of the 21.3 hours were billed by Schachter at rates of $475 and $495 per hour. (Dkt. No. 16: Schachter Aff. ¶ 10 & Ex. 7: Billing Records.) Many of Schachter's entries reflect work that should have been completed by an associate or paralegal. (See, e.g., Schachter Aff. Ex. 7: Billing Records: 8/16/12 ($142.50 for receiving and reviewing scheduling order); 11/8/12 Entry ($49.50 for checking ECF for default certificate); 11/15/12 Entry ($247.50 for receiving Certificate of Default); 12/10/12 Entry ($792 in part for receiving and reviewing inquest order).) Similarly, Schachter billed three times for drafting and sending cease and desist letters, the contents of which were unchanging. (Schachter Aff. Ex. 7: Billing Records: 1/19/12 Entry (first letter, $427.50); 4/11/12 Entry (second letter, $237.50); 5/31/12 Entry (third letter, $190); see also Schachter Aff. Exs. 4-5: 4/11/12 & 5/31/12 Cease & Desist Letters.)
This "unreasonable allocation of the litigation tasks involved" resulted in excessive billing, which justifies a reduction. Microsoft Corp. v. Computer Care Ctr., Inc., 2008 WL 4179653 at *15-16 ("[T]he litigation was handled virtually single-handedly by . . . a partner . . . [who] performed nearly all the routine daily litigation tasks in this action. Thus, [he] billed at a partner's rate for a variety of tasks that could have been performed by an associate or even clerical staff. . . . [Plaintiff's attorneys'] fees should be significantly reduced."); see also, e.g., Prescia v. U.S. Life Ins. Co., 10 Civ. 2518, 2011 WL 70569 at *3 (S.D.N.Y. Jan. 6, 2011) (Wood, D.J.) ("[E]ntries such as . . . 'check Court website for updates' . . . could have been done by a paralegal or some other employee who does not bill at the rate $350.00 per hour.").
In addition, a number of entries regarding communications with Tahari's counsel appear to involve Lucerne's potential claim against Tahari, since they refer to "discuss[ing] settlement." (See Schachter Aff. Ex. 7: Billing Records: 1/26/12, 1/27/12, 2/6/12 & 2/14/12 Entries.) H.C.T. is not responsible for fees related to Lucerne's claims against other parties and, therefore, these entries warrant a reduction. See, e.g., Colon v. City of N.Y., Nos. 09 CV 0008, 09 CV 0009, 2012 WL 691544 at *22 (E.D.N.Y. Feb. 9, 2012) (defaulting defendants not responsible for fees relating to other defendants), report & rec. adopted, 2012 WL 686878 (E.D.N.Y. Mar. 2, 2012); Merch. Media, LLC v. H.S.M. Int'l, 05 Civ. 2817, 2006 WL 3479022 at *13 (S.D.N.Y. Nov. 30, 2006) (reduction for fees "allocable to legal work relating solely to the two defendants that were dismissed by the Court").
See also, e.g., Entral Grp. Int'l, LLC v. Sun Sports Bar Inc., No. 05-CV-4836, 2007 WL 2891419 at *11 (E.D.N.Y. Sept. 28, 2007) ("[P]laintiff's counsel seeks compensation . . . for work which pertained solely to [two other] defendant[s] . . . who[] settled the claims against them. Therefore, compensation for those hours should be disallowed. Although some of these time entries may reflect work concerning other defendants, the entries are not sufficiently clear to enable the Court to determine how much time was spent on other tasks in order to credit some portion of those time entries.").
Likewise, Schachter billed $4,752 for 9.6 hours spent preparing plaintiff's inquest submissions. (Schachter Aff. Ex. 7: Billing Records: 12/10/12 through 12/14/12 Entries.) The inquest application consists of two three-page affidavits and a three-page brief citing three cases and failing to address attorneys' fees or costs. (Schachter Aff.; Dkt. No. 15: Rimsky Aff.; Dkt. No. 14: Lucerne Br.) In light of this, 9.6 "hours preparation by [one of] the highest-billed attorney[s] on the case is unreasonable, especially since the preparation was for a routine inquest involving no additional documentary submissions." Rolex Watch, U.S.A., Inc. v. Pharel, 2011 WL 1131401 at *7; accord, e.g., Granite Music Corp. v. Ctr. St. Smoke House, Inc., 786 F. Supp. 2d 716, 739 (W.D.N.Y. 2010) ("Nor is it clear to the court why Plaintiffs' attorney spent a total of 18.6 hours researching and preparing a two-page motion, supported by a three-page attorney affidavit . . . [on] a matter which, for attorneys with the experience of [plaintiffs' attorneys], surely was not complex.").
The vague descriptions of Schachter's work during the inquest phase—such as $792 for an entry described as: "Receipt of Order for inquest; review and begin preparation" (Schachter Aff. Ex. 7: Billing Records: 12/10/12 Entry)—further warrant a reduction. See, e.g., Harris v. Fairweather, 2012 WL 3956801 at *8 (citing cases); Days Inn Worldwide, Inc. v. Amar Hotels, Inc., 05 Civ. 10100, 2008 WL 2485407 at *10 (S.D.N.Y. June 18, 2008) (Wood, D.J.) (reducing fees where vague entries "do not aid the Court in understanding the nature of the work performed and whether the work involved research, review, revision, or a combination of any of those or other tasks").
Therefore, after deducting $62.50 to account for Schwab's reduced hourly rate (see page 15 above), the Court should further reduce plaintiff's requested attorneys' fees by twenty percent, resulting in an attorneys' fee award of $7,640.80. See, e.g., Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (affirming district court's fee reduction of twenty percent "for vagueness, inconsistencies, and other deficiencies in the billing records"); Harris v. Fairweather, 2012 WL 3956801 at *8 ("In light of the mediocre attorney performance, the vague billing entries and excessive time spent on certain tasks, the Court should reduce the total attorneys' fees sought by twenty percent . . . ."); Trs. of N.Y. Oil Heating Ins. Fund v. Anchor Tank Lines Corp., 09 Civ. 9997, 2011 WL 767162 at *4-5 (S.D.N.Y. Mar. 4, 2011) (Peck, M.J.) (twenty percent fee reduction), report & rec. adopted as modified on other grounds, 2011 WL 1641981 (S.D.N.Y. Apr. 29, 2011); All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d at 617, 629 (over twenty percent fee reduction for vague entries and attorneys performing paralegal work); Grievson v. Rochester Psychiatric Ctr., 746 F. Supp. 2d 454, 469, 471 (W.D.N.Y. 2010) (twenty percent reduction for "excessive, vague, unrelated entries"); Auscape Int'l v. Nat'l Geographic Soc'y, 02 Civ. 6441, 2003 WL 21976400 at *5 (S.D.N.Y. Aug. 19, 2003) (twenty percent reduction for "inefficiencies due to over-staffing and excessive time expenditures"), adopted, 2003 WL 22244953 (S.D.N.Y. Sept. 29, 2003).
B. Costs
Section 505 allows the prevailing party to recover its costs. However, costs must be substantiated for reimbursement. See, e.g., Cover v. Potter, 05 Civ. 7039, 2008 WL 4093043 at *8 (S.D.N.Y. Aug. 29, 2009); James v. Nat'l R.R. Passenger Corp., 02 Civ. 3915, 2005 WL 6182322 at *20 (S.D.N.Y. Mar. 30, 2005) ("Plaintiffs seeking to recover costs must submit bills or receipts for claimed expenses. . . ."). Here, Lucerne has not provided any information or supporting documentation as to the costs incurred. Accordingly, the Court will not grant Lucerne any costs, even the filing fee. Compare CJ Prods. LLC v. Your Store Online LLC, 11 Civ. 9513, 2012 WL 2856068 at *6 (S.D.N.Y. July 12, 2012) (Peck, M.J.) (taking judicial notice of Court filing fee where plaintiff sought costs but did not supply supporting documentation), report & rec. adopted, 2012 WL 4714820 (S.D.N.Y. Oct. 3, 2012).
CONCLUSION
For the reasons set forth above, the Court should award plaintiff $30,000 in statutory damages and $7,640.80 in attorneys' fees, for a total monetary award of $37,640.80.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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 objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1910, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d Cir. 2012); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
January 17, 2013
Respectfully submitted,
/s/_________
Andrew J. Peck
United States Magistrate Judge Copies to: Kenneth Roy Schachter, Esq. (ECF)
H.C.T. Textiles Co., Ltd. d/b/a H.C.T. Textiles New York via
Regular & Certified Mail at the following address:
247 West 38th Street, New York, NY 10018
Judge Kimba M. Wood